Beginning yesterday, impeachment proceedings initiated against Donald Trump for the second time. This time, stemming from the events at the Capitol on January 6th, President Trump faced charges for incitement of insurrection. In contrast to his first impeachment, where Trump faced the consequences of removal from office, here voting in favor of impeachment would only limit former President Donald Trump’s ability to hold public office again.
Trump’s lawyers did an objectively bad job defending him. Attorney David Castor began in what has been described as incoherent, self-contradictory, meandering, and by Fox News’s Laura Ingraham’s account, terrible.
David Castor was tasked with explaining how Trump’s actions leading to the January 6th insurrection did not constitute incitement. Incitement is a legal standard that most of the senators, who are also lawyers, in the room would have been familiar with from their first year constitutional law class. To sum up, the Supreme Court decided in Brandenberg v. Ohio that free speech is limited where:
- The speech is “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
In the interest of protecting free speech, it is a notoriously hard standard to overcome. In other words, this was Castor’s easy argument. He could have taken the podium and explained all the ways in which Trump’s actions were not likely to incite or produce violence. For example, he could have pointed to Trump’s overly broad statements (“Stop the Steal”), which lacked specific direction, or the history of Trump’s calls to action with no response (think “lock her up”). None of these would have been stellar arguments, but they would have given the Republicans at least some, albeit weak, legal shield to hide behind.
But instead, Castor delivered a long and muddled speech. One particularly hard to follow part of Castor’s speech tried to draw paralles between acting on emotion and listening to hearsay (I think).
“We are so understanding of the concept that people’s minds can be overpowered with emotion, where logic does not immediately kick in, that we have recognized examples that otherwise would be hearsay and said that, no, when you’re driving down the street, and you look over at your wife, and you say, ‘Hey, you know what, that guy is about to drive through the red light and kill that person,’ your wife can testify to what you said, because, even though it’s technically hearsay, it’s an exception, because it’s the event living through the person.”
Perhaps the clearest remarks he delivered was that he admitted that Trump lost the election.
Trump’s second lawyer, David Schoen, faired better but not well enough to give the GOP some reprieve.
Aside from challenging the logistics of what constitutes an incitement, Trump’s lawyers argued that the constitution does not allow for Congress to impeach a former president. The problem here is that a former public official has been impeached after leaving office before. In 1876, during the Ulysses S. grant administration, Secretary of War William Belknap was accused of corruption and resigned. After internal debate on whether the Constitution allowed the impeachment of a former official, the Senate then impeached Belknap, but did not convict.
Instead of grappling with this precedent, David Schoen vehemently asserted that impeachment of a former official was illegal and unconstitutional without anything other than his own firm convictions to back up his assertion.
Several GOP senators have come out to voice their concern over the less than compelling performance put on by Trump’s attorneys.
Senator Ted Cruz commented that he did not “think the lawyers did the most effective job”. Senator John Cornyn commented that “I thought the president’s lawyer — the first lawyer — just rambled on and on and on and didn’t really address the constitutional argument”. Both senators voted to halt the impeachment proceedings.
The only senator who listened to the arguments, found them unconvincing, and actually changed their votes however, was Senator Bill Cassidy. Cassidy, who voted to continue the impeachment trial, finding the Senate could impeach a former president, stated:
“If I’m there as an impartial juror, respecting my oath of office to uphold the Constitution of the U.S., and one side makes the argument, and the other side does everything but make the argument, then to live with myself, I make that vote,” Cassidy added. “I’ve always said I’m approaching this as an impartial juror.”
When asked to comment on the upcoming impeachment proceedings of Donald Trump, the GOP has always had the same response — that they are impartial jurors, and as impartial jurors, they cannot give their opinion until hearing from both sides.
It may just be only Senator Cassidy who truly believes this. Even in the face of incoherent, bewildering arguments, the GOP senators can only acknowledge these arguments as poor. Their votes however were cast as expected. There is little reason to believe they will not continue to do so.
Impeachment is a political process. It is fully carried out by the legislature and the courts have held in United States v. Nixon that they will seldom get involved. Political in name it may be, but impeachments were never meant to be carried out purely on party lines.
How can we trust a process where the outcome is determined in spite of the merits? Where personal beliefs and political motives outweigh the call to do one’s job with honor, our institutions lack the integrity which has kept them in high regard for this long. And where the GOP senators attempt to both acknowledge and ignore the legal arguments against Trump, they pick away at the soundness of our institutions which they claim to respect. Our elected officials must do better.