On Tuesday, 9 February, the impeachment trial of the 45th president began in the US Senate. The military on duty to guard the Capitol and the security fencing remains after the events of 6 January 2021.

This is only the fourth time an American president is being judged by the country’s senior legislative body over “high crimes and misdemeanours”, as stipulated in the country’s constitution, following the vote for impeachment by the House of Representatives. Moreover, this trial is the first time one American president has been impeached twice, and it is the first time, too, that a president has been put on trial in the Senate after his term of office has ended. 

And just by the way, this is the first time much of the evidence of those “high crimes and misdemeanours” consists of online communications from the then-president and video footage that had been broadcast live, just as it happened, to an astonished world via televised news channels. However, one thing the trial presentations have also shown is that there was yet more appalling video evidence not seen earlier. The cumulative effect of the images shown on Wednesday by the prosecuting managers is what every senator should contemplate as they commune with their respective consciences as the day of the vote comes closer over whether they should convict the former president.

The opening moments of the trial took place on Tuesday over its rules, including arguments and a vote on the constitutionality of carrying out the proceedings in the first place, given that the man in the dock was already out of office, courtesy of the results of the 3 November election. That argument, at least, has been settled, if for no other reason than that there is precedent for such an action — the 1876 impeachment trial of William Belknap who as secretary of war had been caught in a corruption scandal, and who had resigned before his Senate trial. (The prosecution even made reference to an 18th-century British parliamentary trial of Warren Hastings over his behaviour as a colonial ruler in India, after he had left that position. Deep research, that, as the prosecutors argued the framers of the American Constitution would have been well aware of that trial and so did not prevent such actions.)

Former US president Donald Trump’s defence team members Michael van der Veen (right) and Bruce Castor Jr. (Photo: EPA-EFE / Mandel Ngan / Pool)

With the vote on constitutionality having been decided in the affirmative (but with only a handful of Republicans supporting the measure), the prosecution floor managers led by Maryland Congressman Jamie Raskin (a constitutional law professor), with a roster of other Democratic members of the House of Representatives — Diana DeGette, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Madeleine Dean and Joe Neguse, as well as Delegate Stacey Plaskett of the US Virgin Islands — jointly presented the prosecution’s case. The ex-president’s defence team was led by two attorneys, David Schoen (who had earlier defended the ex-president’s semi-“second story man” Roger Stone) and Bruce Castor, a Pennsylvania state prosecutor, who then provided their overview of the case. 

Besides that original constitutionality issue, the defence team argued, regardless of what they may have sounded like, the then president’s words at his rally were metaphorical statements, rather than direct calls for the assembled mob to seize the Capitol and carry out its depredations. Accordingly, the defence is betting that the prosecution will be unable to make a causal link between the then president’s wild, riotous words and the illegal, despicable actions of the mob. Moreover, the then president specifically — albeit eventually — did tell his mob to go home peaceably, countering the public charges made about his words. 

In contrast, the prosecution argued this impeachment and trial is within the spirit and the letter of the Constitution, including that earlier precedent of a trial after a cabinet officer had resigned from his office. Moreover, an impeachment conviction punishment need not be limited to removal from office — the 14th Amendment also allows for the prohibition of a former office holder from again serving in high office after having carried out insurrection or rebellion against the United States. 

Watch: Senate Impeachment Trial: January 6 Video Montage (Age-restricted)

Further, if there was no possibility of punishment as the end of a term office approached, then a president could carry out illegal acts, engage in or encourage rebellion against the Congress, or any other unconstitutional acts with the knowledge they would face no punishment after their term of office ended. Or, if the outcome was increasingly clear someone might be impeached and convicted, they could just resign in the face of an impending Senate trial. Such licence would be an open door for every form of bad behaviour by a president since no punishment could be exacted after the crime, and after the whistle blew on time in the Oval Office.

The Democratic Party’s prosecutors have been working to show direct causal links between the words of the president — from before the 3 November election and onward — and the incitement to riot that led to the storming the Capitol. In particular, on Thursday, they have been working to demonstrate that members of the mob fully believed they were carrying out the then president’s direct instructions. The then president had, after all, called for the rally on 6 January when it was well known the electoral college vote was taking place on that day. If the link is there, the charges should stand and penalties must be pursued. 

Speaking on Thursday night, for example, Congressman Raskin demonstrated the former president’s long history of calling for violence against people who opposed him, including his public support for an earlier example in April 2020 of the same kind of thing in the Michigan state capital.

Raskin and his colleagues garnered accolades for tightly reasoned, vivid arguments in their initial presentation, and then for their detailed presentation of the case in succeeding days as well. There was even surprise that the prosecutors offered praise of then vice president Mike Pence for doing his job faithfully as the presiding officer of the electoral vote certification on 6 January, in the face of immense White House pressure to do otherwise. As The Washington Post’s The Daily 202 reported on Thursday, “ ‘Mike Pence is not a traitor to this country, he’s a patriot,’ said Rep. Joaquin Castro (D-Tex.). ‘And he, and his family who was with him that day didn’t deserve this — didn’t deserve a president unleashing a mob on them, especially because he was just doing his job.’ ” 

Historian Heather Cox Richardson, in summing up the first days of the trial, argued that the question of whether it was permissible to try a former official had been “designed to get Republican senators off the hook: if not, they could avoid voting on the article of impeachment”.

“The proceedings went badly for the defense. Lead House impeachment manager Jamie Raskin (D-MD) began the session by pointing out that Trump’s lawyers were arguing for a brand new ‘January exception to the Constitution of the United States of America.’ Constitutional lawyers from across the political spectrum, he pointed out, agree that former officials must be held accountable for their actions after they leave office. 

“Otherwise, officeholders could commit high crimes and misdemeanors and then promptly resign, putting themselves beyond reach of impeachment.

“ ‘It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door to hang on the Oval Office at all costs and to block the peaceful transfer of power,’ Raskin said. ‘In other words, the January exception is an invitation to our Founders’ worst nightmare. And if we buy this radical argument… we risk allowing January 6 to become our future.’ 

“What would that look like? Raskin answered his own question with a 13-minute video that revisited exactly what happened on January 6. Using footage and tweets from the attack on the Capitol, the video laid out the direct relationship between Trump’s speech at his rally that day and his supporters’ attack on Congress. It was devastating. Seeing the events of the day laid out in chronological order, with Trump’s words echoing from the mouths of furious insurrectionists attacking the Capitol, was even worse than seeing it happen in real time on January 6.” 

By contrast, the defence’s initial efforts were derided (even by Republican senators) as confused, meandering, sometimes demeaning and insulting, and poorly reasoned and unconvincing. Perhaps this is what the ex-presidential defendant should have expected as he kept changing his attorneys, and after his originally appointed lawyers had elected to drop out of the case because the former president reportedly had insisted their core argument should have been the election of Joe Biden was fraudulent — and thus the real crime, not whatever he did.

Cox Richardson noted further, “The two men, Bruce Castor and David Schoen, only joined the defense team a little over a week ago, after Trump’s original team leaders all quit, and so have had little time to prepare. They were also apparently surprised by the quality of the prosecution’s presentation today, and so tried to change their own presentations on the fly.

“Castor spoke first, coming across as condescending and meandering — Schoen later defended him by saying Castor had not known he would be speaking today. Even Trump supporter Alan Dershowitz, who defended Trump in his first impeachment trial, seemed put off. ‘I have no idea what he’s doing,’ Dershowitz told Newsmax. 

“Next up was Schoen, who insisted that the Trump voters whose candidate lost the election must be heard. He appeared to threaten the senators with civil war. ‘This trial will tear the country apart, perhaps like we’ve only ever seen once in history.’ 

“The two men seemed badly outmatched, rambling and unprepared. While the Democrats’ presentations were clear, organized, and illustrated with slick videos and graphics, the defense had none of that. Watching from Florida, the former president was allegedly irate. The goal for the defense today was simply to give cover to Republicans who wanted to avoid voting on the merits of the case by giving them room to dismiss the case on the grounds it was unconstitutional. Castor and Schoen did not give them that cover.”

Once the opening arguments had concluded, the actual presentation of evidence and argument began with 16 hours allocated to each side — with the prosecutors going first. The prosecutors did their presentations on Wednesday and Thursday, and, within it, graphic, deeply unsettling video of the mob’s rampages inside the Capitol, as well as that frightening evacuation of senators, representatives, staffers and family members. 

Republican Senator from Utah Mitt Romney responds to members of the news media on arrival on the third day of the second impeachment trial of former US president Donald Trump at the Capitol in Washington, DC. (Photo: EPA-EFE / Michael Reynolds / Pool)

Left unsaid, but now in the minds of many senators was how close many of them — including Senator Mitt Romney — had come to mob violence. The prosecutors’ argument was not just about 6 January when the electoral votes for the presidency were being recorded. It was also about how the ex-president had beaten the drum over false claims of election fraud for weeks on end (and, indeed, throughout his entire term of office about the possibilities of fighting back against Democratic victories). And then, after multiple Republican court challenges over the election failed, the ex-president had tried one last gambit. Their argument is that he directly created conditions for a riot that nearly sacrificed the Capitol and those serving in it to mob violence — violence he had egged on, failing even to call for rational behaviour on the part of the mob until hours later. 

In their final presentations, the prosecution is expected to focus tightly on the actual human cost of this riot, the traducing of centuries of democratic tradition, and explanations as to why a president does not have unlimited freedom of speech such that he can encourage mob violence based on demonstrably false information. (This latter will come in response to hints the defence will contend that a president has untrammelled rights to freedom of speech, regardless of consequences.)

By Thursday afternoon, The Washington Post was reporting, “An aide to the House impeachment managers said Thursday that they will also look at “the president’s lack of remorse” as the pro-Trump mob laid siege to the Capitol. The aide spoke to reporters on the condition of anonymity.

Once this portion of the trial has wrapped up, the Senate — all one hundred of them — will debate the actual motion for conviction and vote on it, and the possibility of barring the ex-president from any future federal office under the 14th Amendment to the Constitution (originally framed to limit former Confederate officers from serving in federal positions).

As this decision is a constitutional prerogative of the Senate, there is no further appeal over a conviction or an acquittal, although criminal charges at the federal and state levels are being pursued against leaders and members of the mob. Presumably, the ex-president himself may also face charges over a variety of financial missteps, and even the possibility of criminal charges due to his efforts to illegally obtain a win in the Georgia voting.

An impeachment conviction requires support by two thirds of senators voting. While the Democrats hold a 50-50 majority — with Vice President Kamala Harris voting for the Democrats as president of the Senate in the event of a tie. At least by present estimates, it seems unlikely that argument and evidence will convince at least 17 Republican senators to break ranks with their party’s embrace of their ex-president and vote to convict instead.

However, they may be holding well-founded fears of primary challenges in future elections by angry populists like Marjorie Taylor-Greene who would try to take their seats. At this point, it seems likely the trial will be wrapped up by the coming week and that some Republicans will vote for conviction, but not enough to reach a two-thirds majority.

In the face of all the evidence about the ex-president’s embrace of groups like the Proud Boys and cheering for the attempted takeover of Capitol Hill to force the end of the electoral vote certification, Republican senators and congressmen (and many ordinary Republican supporters) face a fundamental challenge. Do they allow their party to fall completely to the conspiracy theorists, miscellaneous cranks and the deluded, instead of reclaiming what is left of their party for older, long-standing, more principled conservative values? 

If it is to be the latter, how do they create a different centre of power and begin denouncing and educating about the false narratives that have the upper hand now? And once this impeachment trial is over, regardless of the outcome, how do they find ways to achieve at least some elements of bipartisanship with Democrats in Congress and a Democratic president, in the face of the twin national challenges of the Covid pandemic and the current economic malaise?

Embracing the dangerous madness of QAnon may be fun for some, but addressing and solving national crises is why they have been elected. The choice is theirs. DM