After Trump’s let-off once again, there’s still a lifetime of legal troubles to follow

After Trump’s let-off once again, there’s still a lifetime of legal troubles to follow
President Donald Trump. (Photo: Tasos Katopodis / Getty Images)

The second impeachment trial is over and the ex-president was ultimately not convicted by the necessary two-thirds majority of the charge of inciting insurrection. But his personal and political future is surely crowded with a swarm of legal challenges he will find difficult to fend off. (Even Mitch McConnell believes this.) Meanwhile, Republicans and Democrats must figure out what this decision means for their respective political futures.

In the end, America’s controversial ex-president survived his second trial in the Senate. While 57 out of 100 senators in that body voted to convict him, that was still fewer than the required two-thirds of senators present and voting.

Ultimately, seven Republican senators broke ranks with their party and voted with the 50 Democrats, producing the most bipartisan of any impeachment trial in the past. Historically, there have been four trials of presidents: Andrew Johnson, Bill Clinton and Donald Trump, twice.

Led by Representative Jamie Raskin, the House of Representatives’ trial managers gave a compelling recapitulation of the 6 January mob attack on the Capitol and traced it back through the full four years of the 45th president’s time in office. In essence, their argument was the then-president had groomed his followers for years into believing he was the inevitable choice of American voters, and that if he lost, it could only be through vote-rigging, other cheating, and still more sinister frauds. 

Once he lost, though, his constant drumbeat was that the election had been stolen from him and that his increasingly belligerent followers would have no alternative but to undertake direct action to stop the final — ceremonial — electoral vote count in the Capitol, this as the culmination of a raucous rally on the green spaces adjacent to the White House.

The rowdiest of the rallygoers were clearly stoked by antagonistic speeches from the then-president and several of his supporters. And, in fact, numerous rallygoers have said (especially after they had been apprehended by police or the FBI in the aftermath of the riot) they believed they were acting on orders from their president. 

As everyone now knows, the mob broke into the Capitol, ransacking offices and stopped the vote count for hours. In the end, five people died and a democratic tradition of more than two centuries of peaceable transfers of power had been shattered. 

By the time the Senate trial actually began, Joe Biden had been sworn into office as the new president, thereby giving oxygen to the president’s defence attorneys in the Senate trial that having an impeachment trial after a president had been voted out of office made the trial extra-constitutional. That was apparently a convenient fig leaf some Republican senators chose to hide behind in voting to acquit the former president. 

The prosecution had argued — and a preliminary vote had supported this view — that such an escape hatch created opportunities for future presidents to do all kinds of depredations and then conveniently resign just before a Senate trial might begin. Moreover, the constitution did not make such a chronological distinction and that, besides, there were actual precedents for just such a trial.

The ex-president’s defenders, meanwhile, insisted that despite a well-documented train of incendiary rhetoric from the chief executive and his lackeys right up to 6 January, it was impossible for the prosecution to cinch the case that there was a direct, undeniable connection between those words and their deeds. 

Still, had the actual article of impeachment been more broadly phrased, it might have put yet more pressure on senators to vote to convict. Retired federal appeals judge Michael McConnell (appointed by a Republican president) argued in The New York Times just the other day that “It is far from clear that Mr Trump incited the violence of Jan 6 in a technical legal sense, but it is abundantly clear that he sought to intimidate members of Congress and other officials to block Mr Biden’s election, and that he failed in his duty to do what he could to end the violence once it started. Those would be ample grounds for conviction, quite apart from whether Mr Trump committed the crime of incitement.”

In defending the former president, moreover, his legal team also insisted that the president’s admittedly incendiary language was protected speech under the free speech protection of the First Amendment to the constitution, although prosecutors countered no president should be able to claim such protection when their words and deeds explicitly violate their oath of office, the nation’s laws and its constitution, as it would by calling for an enemy invasion of the nation to support preserving his hold on the presidency. 

In the end, of course, 43 Republican senators embraced their inner spinelessness, even to the point of Republican Senate Minority Leader Mitch McConnell speaking after the vote to insist he had found the ex-president’s words and deeds reprehensible, cringeworthy, and appalling, and that he was “morally responsible” for what happened; but, the clock had run out on that president’s time in office, so it simply was not worth doing. So ultimately he voted to acquit, even if his heart was heavy. And besides, McConnell offered the salve the ex-president could need to face civil and criminal actions at the state or federal level on what he had done. 

Meanwhile, Speaker of the House Nancy Pelosi called McConnell’s explanation, “pathetic”, especially since he had refused to schedule any action on the article of impeachment while he was still senate majority leader, before the president became an ex-president. The other 42 senators didn’t really bother to explain themselves, apparently slinking away to commune with their respective souls in the dark corners of their world.

And so, where does this leave all of the principal protagonists in this drama? Start with the ex-president. He is now skulking at his club, Mar-a-Lago, in Florida where he plans (or hopes) to establish his new permanent home, rather than back in Manhattan. To do this, though, he must still contend with his prior agreement with the city of Palm Beach that pursuant to his purchase of the estate and turning it into a members club, he would not establish a permanent residence there for himself.

While he has been playing lots of golf (and spending lots of phone time with supporters), and now that he has dodged yet one more bullet, he is reported to be increasingly consumed by fears about the welter of potential state and federal court actions over his financial and other shenanigans. Those are said to be coming soon in various cases in New York, in Georgia (for trying to get others to mess with the vote count in that state in the 3 November election) and in Washington, DC over the possibilities of being criminally liable for the damage and death on 6 January. At the minimum, he and his expensive lawyers will be busy for a long time to come. 

And then, of course, there is his flailing hospitality, real estate, entertainment, and branding empire and the reported facts he personally signed off on hundreds of millions of dollars worth of loans that come due in the next several years — and whose servicing was predicated on the idea his empire would generate the revenue for it all. But between the pandemic, the economic slowdown and the fact that for many people the ex-president’s very name is radioactive, generating the kind of revenue needed is going to be a tough slog. 

While he has made all manner of implicit promises he will be back for another run for the presidency in 2024, there are those above-mentioned challenges, as well as the inevitable march of time. Numerous other Republican Party figures may well try to make their own moves in that regard, either as the rightful heirs to the Trumpian movement or as transformative politicians keen to reorient their party for the future. At the minimum, think of former Secretary of State Mike Pompeo, Senators Ted Cruz and Marco Rubio, and Nikki Haley, the former US ambassador to the UN and former governor of South Carolina. But there will be more.

Notice this list no longer includes the former vice president, Mike Pence. He was seen for years as the ostensible heir apparent in 2024. But by electing to adhere to the constitution and not obstruct the certification of the electoral votes, thereby eliminating the last hope of a delusional president and his equally deluded followers that the former president could hang on for a second term, Pence has been exiled from the circle of trust and consigned to a Republican version of Dante’s circles of purgatory. 

Now he is hanging out as a “Distinguished Visiting Fellow” at the Heritage Foundation in Washington, DC, a historically right-wing, conservative think tank, rather than with any programme more closely linked to the GOP’s current addiction to the cult of personality-style populism. But at least at this point, Pence has been ejected from the charmed circle, what with an ad hoc gallows erected for him on the grounds of the Capitol no less, and chants of traitor ringing in his ears. 

Accordingly, for the next several years, among Republicans, there will be an increasingly unruly, sharp-elbowed but discreet scrum for front-runner position, well before the actual primary season for 2024 begins. It will not be pretty, especially as all of these possible contenders, and maybe additional ones, will keep watching over their shoulders for any real signs of political campaign life emanating from Palm Beach, Florida. 

Meanwhile, the newly elected president, Joe Biden and his closest advisers steered well away from this trial, on the reasonable calculation that regardless of the outcome, an extended trial (say one with a long stream of witnesses and lengthy cross-examinations of all those witnesses) could well be anathema for progress with the Biden agenda.

At this point, Biden’s top-tier priorities are the pandemic, reigniting the economy, and getting the senior nominations for his administration past Senate confirmation votes and on to work. Given the precarious Democratic margins in Congress, an extended, even more fractious trial could only slow down the work of the Congress, thereby allowing his opponents in the Republican caucus to deflect, weaken, or defeat that agenda in whole or in part. And besides, allowing the Republicans to keep their fighting in-house among themselves, rather than in partisan fights in Congress, might even take some of the stress off of gaining passage for key parts of the Biden agenda.

This now brings us the Republican Party’s future. It is clear that among those who self-identify as Republicans in America, survey data indicates a growing number of individuals are choosing to deregister as Republican voters. At the same time, however, a significant minority of Republican voters agree with the idea that violence is sometimes necessary. As NPR reported the other day, “The mob that attacked the US Capitol may have been a fringe group of extremists, but politically motivated violence has the support of a significant share of the US public, according to a new survey by the American Enterprise Institute.

“The survey found that nearly three in 10 Americans, including 39% of Republicans, agreed that ‘if elected leaders will not protect America, the people must do it themselves, even if it requires violent actions’. 

“That result was ‘a really dramatic finding,’ says Daniel Cox, director of the AEI Survey Centre on American Life. “I think any time you have a significant number of the public saying use of force can be justified in our political system, that’s pretty scary. 

“The survey found stark divisions between Republicans and Democrats on the 2020 presidential election, with two out of three Republicans saying President Biden was not legitimately elected, while 98% of Democrats and 73% of independents acknowledged Biden’s victory.”

With the defection of seven senators in this most recent impeachment trial, as well as the principled public criticism of the president by such people as Illinois GOP Congressman Adam Kinzinger, there are obviously some Republicans swimming against the presumably pre-eminent tide. 

The Economist noted in a recent profile of Kinzinger’s views, “He knows he is up against it. The Trumpists are in charge because that is what Republican voters seem to want. Yet he makes a reasonable political and stronger personal case for sticking it to them anyhow. He suggests many Republicans are backing Mr Trump for want of alternative leaders. ‘People need to be reminded that the Republican Party has this rich history. We used to be optimistic,’ he says.

“He then compares the current state of Abraham Lincoln’s party to a drunk awaking after a ‘massive bender’. ‘You’re like, what the hell did I do last night? And you have a choice. You can take a delicious Bloody Mary, or actually confront your choices and become a better person.’ Mr Kinzinger, a former college dropout, speaks with the authority of one who knows what it is to err. He also has logic on his side. Republicans need to expand their support, which post-insurrection Trumpism cannot do. ‘There’s just not enough Proud Boys or far-right fringe groups to compensate for the people we’ve alienated,’ he says.”

Given the split in the country identified by the AEI study, the growing numbers of registered Republican voters eschewing their former party, and the division within the Republican Party demonstrated by the seven senators siding with Democrats and the views of people such as Congressman Adam Kinzinger, the Republican Party has a deep rift within it. To look to history for parallels, one comes upon the disappearance of the Whig Party in the mid-1850s. Musty history? Perhaps not.

Born in the 1830s as the country was growing quickly, the Whig political party had stressed major government investments in infrastructure, maintenance of protective tariffs, and avoidance of any political discourse that would focus on the system of slavery — and thus led to political disruptions and even a possible split in the country. By the 1850s, however, the debate about slavery — whether it should remain that legally protected “peculiar institution”, be allowed to expand into newly acquired western territory, or even be abolished — had become the central theme in American political discourse. 

The Whigs had tried to straddle this issue awkwardly so was doomed. By 1856, it had effectively evaporated as a political force. Former figures such as Abraham Lincoln had abandoned it and joined the newly declared Republican Party instead. 

Perhaps Republicans — at least the rational ones not under the toxic spell of QAnon or the Proud Boys and their ilk — should study their own party’s origins and contemplate whether they want to see their organisation follow the splitting and ultimate demise of the Whigs. Or, perhaps they must undergo a painful purge of the conspiracy spreaders and then figure out what economic and political policies they want to advocate and embrace — and that citizens are demanding. DM


Comments - Please in order to comment.

  • Johan Buys says:

    one recent poll indicated more than half Republican voters would consider switching to a new party under trump leadership. That would be wonderful for the Democrats.

    It is incredible that ordinary conservative Americans could fall for this tax-cheating, wife-cheating, lying, multiple bankrupt fool.

  • Con Tester says:

    It seems to me that, for decades now, the post of US President is bedevilled by a dilemma of Gordian knot intricacy: Anyone willing or eager to don the POTUS mantle is, almost by definition, wholly unsuitable for the job, and anyone who would be suitable assiduously avoids getting anywhere near it.

    In support of the above view, consider that out of a population of around 330-million, Biden and Trump are the best candidates the US electoral system saw fit to field. The oft-mentioned counter, namely that the US presidential election is about money and political capital, doesn’t even begin to explain this evident anomaly.

  • DONALD MOORE says:

    What has happened to the interest in Trumps tax records? It cannot only be relevant while he was President. Surely it is at least relevant to a possible attempt to stand again for the presidency?

  • Colleen Dardagan says:

    Not so different from the ANC back home!

  • Bruce MacDonald says:

    With regard to the Republican senators who refused to vote for impeachment: I believe that there are many of them who would be only too glad to see the orange horror in matching overalls. However, given the propensity of Southern gun-owning good ole boys to shoot first and ask questions later, the chances of these senators being taken out by some rabid right-winger cannot be discounted. And if the militias wanted to hang Mike Pence for refusing to support Trump, how much more treasonous would an anti-Trump Senate vote be regarded? Better to keep heads down and hope like hell that Trump gets taken down in the courts before he can stand again for office.

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