This article originally appeared in the February 4, 2021 Concord Monitor.
If the forthcoming impeachment trial of Donald Trump were taking place in a courtroom, the prosecutors could invoke the “law of the case” doctrine. What that means, in a real lawsuit, is that the Senate’s decision to allow the impeachment case against the former president to proceed would be the “law of the case,” and all 100 Senators, including the 45 who voted the other way, would be under a jural duty to consider and decide the case based on the evidence.
That is not what we are about to see. Rand Paul and others will refuse to take no for an answer and will continue to insist that the Senate has no power under the Constitution to consider the impeachment of a “private citizen.” They will lose once again, and the House Managers will present the evidence. Senators are required to remain silent during the hearings, but it is doubtful whether any of the “we shouldn’t be here” Republicans will be open to persuasion.
But facts matter, and much of the evidence will be in the form of social media video. The Senators have already seen the mob approach, destroy, injure, and kill and—unlike any trial in recent memory—they were present while the attack on the Capitol took place. However, this impeachment trial is not about the insurrection itself; it is about the House’s accusation that President Trump “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.”
The single article of impeachment cites Trump’s refusal to accept the election results, his January 2 phone call urging the Georgia Secretary of State to “find” enough votes to make him the winner of that state’s electoral votes, and his January 6 “stop the steal” exhortation to the crowd that “if you don’t fight like hell you’re not going to have a country anymore.”
The impeachment trial evidence will likely go back to September 2020 when Trump told the Proud Boys to “stand back and stand by.” It will surely include his December 19, 2020, tweet “Big protest in D.C. on January 6th. Be there, will be wild.” And on January 6, Trump told the crowd that if the election of Biden were to go forward, “our country will be destroyed and we’re not going to stand for that.” Trump went on, “We’re going to walk down to the Capitol, and I’ll be there with you.”
If the evidence of Trump’s conduct stopped at that point, would Trump be guilty of inciting his followers to commit a crime? I have my doubts. Ever since he lost the election, he has behaved recklessly, but such conduct alone does not rise to the level of “high crimes and misdemeanors.” And when he gave his marching orders on January 6, he added the words “peacefully and patriotically.”
Trump did not join the march down Pennsylvania Avenue but stayed behind and watched the insurrection unfold on television in real time. Every case has a tipping point, and in this instance it came when his adoring crowd of listeners turned into a violent mob of insurrectionists. He was watching the mayhem with his own eyes, and he did not lift a hand to quell the riot.
That is not an opinion, it is a fact. It took hours after Trump supporters carrying weapons and confederate flags breached the Capitol before Trump finally spoke up. He told them it was time to “go home in peace.” He did not condemn the rioters, any more than he did the “very fine people on both sides” following the white supremacists’ 2017 rally in Charlottesville. This time, he told the crowd, “We love you, you’re very special.” Later that day, Trump urged these “great patriots” to “remember this day forever.” (Many of them will have ample time to do so while serving prison sentences.)
When Trump did not utter a word, did not send a tweet, did not signal those whom he had just dispatched to the Capitol to “stand back” and allow members of Congress to perform their constitutional duties, he violated the oath he took when he became President, to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”
Trump denies any culpability. According to him, “People thought what I said was totally appropriate.” But he has yet to explain or defend his failure to act when the march turned into an assault. My guess is that Trump, in his disillusioned fog of anger, hoped the mob would succeed in preventing the certification of the electoral votes, thereby “stopping the steal.” If that explanation is correct, Trump put his inability to admit that he lost ahead of both the democratic process and the safety of every person inside the Capitol doing the public’s business.
For those senators willing to accept the law of this case—that a House vote to impeach may be heard even if the official is no longer in office—the evidence of guilt is compelling. In the words of Rep. Liz Cheney (R. Wyo.), “The president could have immediately and forcefully intervened to stop the violence. He did not.”