There was a palpable sense of relief in Washington as the Trump trial came to a chaotic but final end. The verdict is in so now the vilification can begin. Both Majority Leader Chuck Schumer and Speaker Nancy Pelosi immediately weaponized the verdict and demonized those who voted to acquit. While the Democrats insisted that all senators should “vote their conscience” that only meant if their conscience supported their side. Pelosi denounced opposing senators as cowards while Schumer lashed out at them for holding an opposing view of the evidence or the process. While groups are targeting members on both sides of the trial, our leaders should be calling for unity and civility after the trial. Instead, they are fueling the politics of division.
CNN and other media followed suit. While McConnell denounced Trump and said that he could still be held accountable for any crimes, CNN hosts Wolf Blitzer and Dana Bash immediately followed his speech by denouncing him as hypocritical. There was nothing hypocritical in denouncing Trump’s conduct as “unconscionable” while also maintaining that the trial was unconstitutional. What Democratic members and commentators would not accept is that anyone could hold opposing views on these questions and not be a shill or coward. Welcome to unity in 2021. It remains unity on our terms or else. The “or else” was made clear to Trump’s defense counsel soon after the verdict. Attorney Michael Van der Veen’s home was vandalized. Other lawyers have faced harassment and threats after campaigns targeting them by groups like The Lincoln Project for representing Trump or Republicans.
The media quickly reinforced the rejection of any possibility that senators could have voted their conscience. CNN Reporter Abby Phillip stated as a fact that there is no real argument that a former president cannot be tried for impeachment. Thus, any vote on that basis was dishonest and craven. As with past coverage, the hosts simply ignored professors, judges, and legendary figures like Justice Joseph Story who have argued against retroactive trials. Moreover, many academics who have studied this issue (including myself) have said that it is extremely close. While we all reach conclusions, most of us have stated that people of good faith can disagree on where the default should be on the question. That however is not what CNN viewers were told. Phillip and her colleagues insisted that there is no real debate — as did the House managers. Thus, anyone voting with the view of figures like Justice Story are liars or cowards or lying cowards. You choose.
The rage expressed by such figures deflected attention from those most responsible for the loss of this trial: the House leadership. As I have previously discussed, there was no evidence of a strategy to convict as opposed to enrage in this trial. First, the House leadership used a “snap impeachment” without even a day for hearings. The House had from Jan. 6th to Jan. 20th (since there was little chance of a Senate trial before Trump left office). At a minimum, it could have held a couple days of hearings to create a record. Instead, it decided to send an article of impeachment for the first time in history without any record of a hearing, investigation, or even a chance for Trump to respond.
Second, it drafted an article of impeachment for “incitement of insurrection” – a poorly conceived article that all but guaranteed a loss. It could have crafted the article in a myriad of ways to garner broader support but House leadership wanted to accuse Trump of trying to start a rebellion against the United States. Finally, it could have called witnesses for four weeks to offer testimony on Trump’s state of mind, a dozen witnesses who could establish what Trump said and did in these critical hours. It refused to do so.
The incoherence of the House case was made plain in the final hours when lead House manager Jamie Raskin threw the trial in disarray by demanding witnesses just before closing arguments. The Senate had reportedly decided against that option but Raskin rose and, like a scene out of Perry Mason, claimed that a new witness had emerged the night before: Rep. Jaime Hererra Beutler (R-WA). Raskin breathlessly described how the House just saw news reports that Beutler had information on a phone call between Trump and House Minority Leader Kevin McCarthy (R-CA) where Trump showed support for the rioters. The problem is that the claim did not appear to be true. Beutler’s account was public before the trial began and the McCarthy call was known to the House for over four weeks. The demand only highlighted the failure of Raskin and the House to call a single fact witness in the House for four weeks on this and other reports.
Yet, the Senate Democrats could not risk the ire of their base if they opposed the House managers. They had to follow Raskin over the cliff. In commenting live on the Raskin’s demand, I noted that he had clearly taken the senators by surprise and that these are politicians who are risk adverse and unlikely to go down the road of the unknown with Raskin. There is a reason why the House has been timid about calling witnesses who might also show that the House was warned of the prospect of violence, refused National Guard troops, and was negligent in dealing with the riot. Witnesses would also highlight the failure of the House to call such witnesses for a month. Finally, some of that testimony might not support the House’s suggestion that Trump delayed the deployment of troops or other parts of the unchallenged narrative by managers.
The result was as incoherent as Raskin’s argument. So, as expected, they reversed the vote by pretending that they were supporting the House managers. They agreed to a stipulation that was so absurd that it only lacked the requisite joke drum beat. Raskin had already described Beutler’s account on the record in his remarks. Yet, the Senate had him agree to a stipulation to again describe the call and then drop his demand. It was stipulating that a piece of hearsay that was previously discussed on the record could be stated on the record. To make even more absurd, the statement quoted Beutler as saying that she had previously discussed the call in public – directly refuting what Raskin told the Senate. Keep in mind Raskin had just claimed that this was new evidence from “last night” and that the Senate now needed to call witnesses on this “additional critical piece of corroborating evidence further confirming the charges.”
Here is what he then read to the Senate from Beutler: “I have shared these details in countless conversations with constituents and colleagues and multiple times to the media and other public forums. I told it to the Daily News of Longview on January 17th. I’ve shared it with local county Republican executive board members as well as other constituents who asked me to explain my vote. I shared it with thousands of residents on my telephone Town Hall on February 8th.” It was new evidence that she shared with thousands over weeks of public statements?
None of that matters of course because the House never showed any intention of establishing Trump’s state of mind or even prevailing in the trial. The true purpose was made manifestly clear by Schumer and Pelosi within minutes of the verdict. There would be no allowance for a good-faith vote unless it was a vote in favor their position. While the House Republicans refused to punish Rep. Lynn Cheney for her vote to impeach, Schumer and others are only willing to recognize such a vote of conscience in favor of their side. To hold an opposing view was pronounced not just by the Democratic leadership but the media as craven cowardice or virtual treason. It is precisely the type of rhetoric and false labeling by Trump that many of us denounced over the last four years. There is no room for disagreement; only patriots and traitors.
And so the age of rage will continue not because it must but because we love it.