One Job
So Friday was for the defense in the Senate Trial of Donald Trump.
I hate those guys. I know they are lawyers, hired to do one thing: get their client acquitted. And I know that as defense lawyers, even in this Senate “impeachment” environment, the burden of proof is on the prosecution, the House Managers. But there are three terms that characterize their Defense: specious legal arguments, continuing Trump’s lies, and my least favorite term of all, “what-about-ism”.
Dead Horse
In any “regular” court, the defense would normally call for a summary dismissal of a case. They’d do it at the beginning of the trial, trying to find jurisdictional or legal grounds that disqualify the prosecution. And they’d do it again after the prosecution rested their case, claiming that the necessary burdens of proof were not reached. But once the judge ruled on those motions for dismissal, then the defense would drop it, and move on. In fact, if the defense continued to try to press their dismissal claim, the judge might well hold them in contempt.
But the first leading argument of the Trump defense team is that the entire hearing is unconstitutional. Their claim is that the Senate has no standing to try a “former” President. But the Constitution expressly makes one thing clear: The Senate is the sole decider on trials for impeachment. And the Senate voted, twice, that the trial of Donald Trump was in fact Constitutional. Just as if a judge ruled in a trial, the decision was made, the question “asked and answered”. There is no appeal.
So why do the Trump lawyers continue to “beat this dead horse”? It’s simple math, adding up to the number thirty-four. They need to give at least thirty-four Republican Senators “cover” to vote for acquittal. The evidence, in spite of the defense attorneys’ attacks, is absolutely condemning of the President’s actions. The Republican Senators don’t won’t to be pressed into deciding on that basis – so the faux Constitutional argument gives them a “fig leaf” to hide behind.
But in full fairness, the lawyers have one job to do – defend the President.
Alternative Facts
What will it profit a man if he gains the whole world, yet forfeits his soul? There’s one thing we have learned from the Era of Donald Trump: repetition of a lie over and over again does not make it true. There really is no such thing as “alternative facts”. But the Trump attorneys felt duty-bound to continue the lies: that Trump was for “law and order”, that Democrats want to “defund the police” and “burn down the cities”. That the President of the United States has a “free speech right” such that he can incite a mob.
But we also know that while the whole nation, and much of the world is watching, the Trump attorneys are speaking to thirty-five people: thirty-four Republican Senators and one former President living in Florida, who may or may not pay their bills.
What-About-Ism
The new-speak term of art is “what-about-ism”. It is a debate tactic: rather than discuss the actual focus of the debate, the actions of the President of the United States leading up to and on January 6th: talk about something else. “What about” something that Nancy Pelosi, or Joe Biden, or that demon of all demons, Maxine Waters said. From that comes the false equivalency. If they can say what they said, then Donald Trump was legal and justified to say and do what he said up to and on January 6th. That’s a “false equivalency” (another new-speak term). None of the named sources, or Johnny Depp or Madonna (or even Robert DeNiro) were in front of a mob ready to follow their leader to save his “stolen election”. If Joe Biden did take Donald Trump behind the gym and punch him, it wouldn’t rise to the level of insurrection, or impeachment. It would be at best an assault, and looking at the two, Trump would get his ass beat.
And even if all of those things were “equivalent”, it doesn’t matter. If we are all driving at eighty miles an hour, we are all breaking the law. The fact that only one of us gets pulled over doesn’t make the ticket any less. “What-About” means everyone is guilty, not that one is “made” innocent.
Have a Question
Then onto the “lightening round”. Senators ask questions of the House Managers or the Defense Lawyers or both, and they answer the questions. Some of the questions are “setups”, patsy questions for one side or the other to “hit out of the park”. And some are serious, the Senators who seem to have real concerns. And out of those questions we have come down to the one critical issue that might actually change some minds in the thirty-four decisive Senators.
No one is seriously questioning the base House premise: that Donald Trump incited the mob. But what seems to be a more significant issue for the Senators is what did the President do while the mob was in the Capitol. Utah’s Mike Lee foreshadowed this debate when he threw a fit about a House Manager quoting him in a phone call from Trump as the mob reached the Senate chamber. “I am the only witness to that call,” Lee shouted, “and they have it wrong.” The call was on Lee’s phone, but it was Trump for Alabama’s Tommy Tuberville. And the rookie Senator stands by his own statement: The President called to have him delay the vote on certification. Tuberville told the President that the Vice President was being hustled away by the Secret Service.
What does that matter? It is the definitive proof that Donald Trump knew, in real time, that his Vice President was in danger – and did nothing. And Friday night it was revealed that around the same time, Trump and House Minority Leader Kevin McCarthy had a profanity laced screaming match on the phone, as McCarthy demanded Trump do something. But nothing was done.
Outbreak
Trump sent the mob, then did nothing as they ransacked the Capitol, threatened the proceedings, and searched for our national leaders, threatening death. Shouldn’t he be punished for that?
The Defense Team is terrible. They have walked into a sure thing, a guaranteed thirty-four Republican votes to acquit, and managed to allow doubts to creep in. I still believe the Senate will acquit the former President, so his team will “get one job done”, but they didn’t help much.
And I still wish there might be an “outbreak” of honor and courage in the Republican Party. If not enough to acquit, enough at least to give America hope.
Addendum (2/13/21 – 11:30 am)
The Trial of Donald Trump has finally taken an unexpected turn. Saturday morning the House Managers called for the deposition and testimony of Congresswoman Herrera Beutler (Republican-Washington) who overheard the Kevin McCarthy phone call with President Trump. The Defense lawyers threatened to depose “hundreds” in his office in “Philly-delphia” if that request was agreed. But – by a 55-45 vote – witnesses will be called – and this Trial will last quite a bit longer.
Who will really be called – and how many – will be debated and voted on. What is not clear: To what end? The House Managers have made their case – but have determined that it is to their advantage to push this on further. Is there more pressure on Republican Senators than we realize? Chuck Schumer does not operate “on the fly”, he must have known this was coming.
So what is the greater strategy? Only time will reveal it.
Addendum II – The Greater Strategy – 2/13/21 – 4:15 pm
There was no greater strategy – other than the strategic move by the McConnell to hold the rest of the Senate business hostage to the Impeachment Trial. Donald Trump was found not guilty – 57 to 43, 10 votes short of conviction. Now the “re-write” will begin. As I type, Senator McConnell attempts to justify his decision to find Trump “not guilty”. He is condemning Trump, but failed to find him guilty. And he led a coalition of Republican Senators to take that position. Seven Republicans – Sasse of Nebraska, Cassidy of Louisiana, Burr of North Carolina, Collins of Maine, Murkowski of Alaska, Romney of Utah and Toomey of Pennsylvania choose “the right” over political expediency. They found Trump guilty. We should say their names. Others. like Rob Portman of Ohio, couldn’t muster the courage to do so.
It’s time to move on. We will ultimately pay some price for not ending Trumpism here, but so be it. There is work to do in our country – we have kicked the “Trumpist” question down the road. That’s a huge mistake, but it, is what it is.
Now let’s get going.
