Jurisprudence

The One Person Who Could Still Make Impeachment a Show

Trump looks morose, eyes downcast as he walks by. In the background are American flags and a cloudy morning sky.
Donald Trump at Joint Base Andrews in Maryland on Jan. 20. Alex Edelman/Getty Images

Donald Trump’s second impeachment trial gets underway on Tuesday. This time, the now-former president is being charged with inciting a violent mob to overpower law enforcement to occupy the United States Capitol on Jan. 6. Five people died that day.

The trial hasn’t even started, but it is considered a foregone conclusion that the Senate will vote to acquit Trump. Last week, 45 Republicans signaled that they might use a shoddy but plausible jurisdictional argument—the theory that it’s not constitutional to impeach former presidents—to exonerate Trump. Meanwhile, Senate Democrats from across the political spectrum—from Bernie Sanders to Tim Kaine to Chris Coons—have signaled an interest in a quick and tidy trial without anything resembling a full accounting of the Jan. 6 riot and Trump’s role in it, eager instead to start focusing on President Joe Biden’s governing agenda.

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There was never going to be a great time for this impeachment trial. When former Senate Majority Leader Mitch McConnell effectively maneuvered for the impeachment trial to take place after Trump’s term ended, the delay was presented as a way of allowing Biden time to situate his Cabinet early in the administration. That’s been true enough, but the interceding weeks also gave the Republican conference the space to rally around a technical argument for dismissing the entire event.

If the trial had happened immediately, there was a chance that “the spell would be broken” for Republicans—that “they’d look around and say we don’t have to do this anymore, we can actually vote our consciences, vote for the republic, vote to rid ourselves of the influence of this guy,” said Frank Bowman, a constitutional scholar and former prosecutor who devoted much of the Trump years to documenting the history of impeachment and how it pertained to the Trump presidency. “But it’s plain they’re not going to do it, and that being so, I think you have to change your approach to some degree.”

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The jurisdictional argument Republicans have clung to, Bowman acknowledges, is weak, but credible enough to give them the offramp they need. Indeed, Republicans have actively pushed Trump’s impeachment team to stick to these constitutional grounds and avoid using the trial to delve into arguments over the former president’s baseless claims that the election was stolen from him. In discussing the legal case he’d prefer to see, North Dakota Republican Sen. Kevin Cramer essentially gave the game away last week, saying “the point here is to avoid conviction.”

That is, Cramer and his fellow Republican backbenchers want the cleanest possible way to avoid having to actually sanction Trump and risk the wrath of the party’s base. They also want to avoid having to rule on the merits of Trump’s effort to steal the election. Given the 67-vote threshold to convict in an impeachment and the cohesiveness of Senate Republicans, they’ll likely get their wish.

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What do Democrats want, though? Given the low chance of conviction, Democrats will likely focus on making a quick and powerful case that Trump’s effort to steal the election was directly responsible for the death and mayhem of Jan. 6 without uncovering much in the way of new facts about what Trump did to encourage the attack and what he did not do to stop it while it was in motion. They’re going to try to make a broad-strokes case aimed at the public, rather than an airtight legal case aimed at their jury, because they know that their jury, in this case the Senate, has already made up its mind.

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But they also know that the public is distracted. A large part of the Democratic caucus has good reason to favor a short trial, so as to move on to the urgent business of governing the country amid a deadly pandemic, historic economic crisis, and the related exigent problems of vaccine rollouts and reopening the country’s schools and businesses. “You’ve got to lay down a marker and get on with it,” said Bowman. “There are 400,000 dead people, and more are dying by the day.”

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House managers, led by Rep. Jamie Raskin, are reportedly still undecided as to whether to seek witnesses during the trial. They are being deterred by members of their own party who have signaled a limited appetite for lengthy proceedings. According to the New York Times, Democrats “are prepared to conclude in as little as a week, forgo distracting witness fights and rely heavily on video, according to six people working on the case.”

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The Times further reports that “Raskin’s team has spent dozens of hours culling a deep trove of videos captured by the mob, Mr. Trump’s own unvarnished words and criminal pleas from rioters who said they acted at the former president’s behest.” This video story—rather than testimony from former officials accounting for Trump’s actions during the course of the riot and his active efforts to steal the election in the days and weeks leading up to it—will apparently form the thrust of their case.

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“They need to try to put as much of that big story in front of the American public as they can in a way that the American public can reasonably digest it,” Bowman argued. “They really need to think about this less in the way that somebody like me would think about building a case against a large criminal conspiracy or the head thereof, and more in the way a documentary film producer would try to distill that big story into something that the American public will watch.”

The main wild card going into Tuesday is not what Democrats or Republicans in the Senate will do—it’s what the former president might do. As it signaled in its latest brief on Monday, the Trump legal team wants to stick to its constitutional and procedural argument here. But there’s a world in which Donald Trump himself watches the firsthand video presentations—of his own words and actions about election theft, of his bullying of public officials, of his incitement of his supporters and eventually the mob that stormed the Capitol—and demands a defense that his actions were entirely legitimate because the election was in fact “stolen” from him. That would open the door for Democrats to require a fuller account—with voluntary deposition, subpoenaed witnesses, and subpoenaed documents—and lay out the full extent of Trump’s criminality.

If Trump is able to control himself—something made more possible perhaps after the loss of his Twitter account—this impeachment trial is likely to end with Republicans excusing the former president on an over-baked technicality. If he’s not, perhaps we’ll get the trial we actually deserve—one that litigates the full litany of the president’s actions. But no one should hold their breath.

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