In today’s episodic daytime drama, the Impeachment of Donald J. Trump - Part II, the House Managers rested their case-in-chief. Before they put their case to rest, the House Managers placed Trump’s incitement of the January 6 insurrection into a broader context.
The evidence introduced established a broader pattern of language used to incite his base supporters. Trump often urged his supporters at rallies to physically assault protesters, claiming he would pay all legal fees. He viciously attacked political opponents in and outside of government using the most derisive and dehumanizing language ever coming from the mouth, or thumbs, of a president.
An early key to the January 6 insurrection was the occupation of the Michigan statehouse the previous April - in the midst of the COVID pandemic. He repeatedly attacked Michigan governor Whitmer claiming that she was incompetent, responsible for closing schools and most businesses, and violating people’s “freedom” by requiring the wearing of face masks.
When various armed militia groups occupied the legislative chambers, intimidating the elected representatives of the people, what did Trump do? Did he send in federal authorities, nationalize the Michigan National Guard, or even voice his displeasure with the militias and support of the duly elected government? No. Instead he tweeted, “LIBERATE MICHIGAN!”
Michigan served as a test run, intentionally or otherwise, for last month’s assault on the Capitol. In some way it serves as the Rosetta Stone for last month’s insurrection.
The House Managers drew attention on Trump’s inaction for several hours after the Capitol was breached. He never sought to learn the fate of his vice-president. But he did have time, after the reports that insurrectionists had entered the Capitol, to call Alabama Senator Tuberville to ask that he lodge more challenges to the certification of state electoral votes in order to prolong the process. Tuberville told the president that he couldn’t talk as he was then being evacuated from the senate floor.
Tuberville confirmed this phone call thereby establishing Trump’s direct knowledge of the severity of the Capitol insurrection.
The House focused attention on the national security implications of the January 6 assault on the Capitol. And there are serious national security implications. Our foreign opponents are using the January 6 insurrection and its fallout as evidence of America’s instability and unreliability, further weakening our status on the world stage.
Of more immediate concern is the threat of domestic terrorism. Abraham Lincoln warned that the greatest threat to the survival of our nation will not come from outside our borders but from within. He was correct - over the past months, both the FBI and the Department of Homeland Security have warned us all about the rise of domestic extremism.
The House Managers focused their presentation on the spike in internet chatter of right-wing domestic groups planning future activities against our democratic institutions. The House Managers argued that if the senate failed to convict Trump for his incitement of the January 6 insurrection, these groups will take that failure as a green light for future, life threatening activities.
And it will also green light Trump to continue his attempts to incite the militia mobs.
Finally, the House Managers closed with a prebuttle of anticipated Team Trump assertions. First, they expected an argument that, because Trump is no longer in office, these impeachment proceedings are unconstitutional and therefore the Senate has no jurisdiction the hear, let alone decide, this matter.
For reasons articulated by the House Managers and I’ve written about previously, based on history and the public knowledge of the framers when they wrote the Constitution, Team Trump is wrong. And it’s not a close call.
But another point in opposition to Team Trump’s jurisdiction objection is that the senate by a vote of 56 to 44 voted that under the Constitution, they did have jurisdiction over these proceedings. In my world this is what we call the “law of the case.”
Think of it this way: in a court action both sides file pre-trial motions with the court. They can deal with any evidentiary and procedural aspect of the case: e.g., inclusion/exclusion of evidence, number of witnesses to be called, standing and jurisdiction, etc. The court rules on these motions and they become the law of the case. In other words of more current understanding, these become the rules of engagement. The court is telling the parties, “you’ve made your arguments, the court has decided, now move on and try your case.”
The Senate became a court jurisdiction to try the impeachment of Donald J. Trump. Now move on and try your case.
One other assertion Team Trump might take is that the First Amendment protects Trump’s speech and social media posts. They can be expected to argue that Trump engaged in protected “political” speech and not in unprotected incitement speech. This is a frivolous argument clothed in constitutional respectability. The law is clear since 1969 in Brandenburg v. Ohio, in which the Supreme Court in a per curium opinion stated that speech was protected unless it is, (1) “directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." Any fair reading and understanding of Trump’s social media posts and statements over the months preceding the November election, coupled with those between early morning of November 4 and noon January 6 supports the assertion that Trump engaged in unprotected speech.
We’ll see what Trump’s attorneys presents to the senate and the nation. Hopefully they will be better organized and prepared than they were on Tuesday, January 9. We are told that they will take only a few hours.
Likely they will use the pointers they got Thursday night from Senators Graham, Cruz, and Lee. Yes, jurors who took an oath to be open minded and objective in analyzing the evidence at trial engaged with the defense lawyers. But why single them out? At least they’re actively engaged, not in honoring their oaths but engaged nonetheless. What of the 15 vacant seats on the Republican side of the senate during yesterday’s presentation?
To borrow and paraphrase a tag line from Dwayne Johnson when he was know as the “Rock,” CAN YOU SMELL WHAT THE SENATE REPUBLICANS ARE COOKING?
Well whatever it is, The Whole World Is Watching!
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