The first and abiding reaction to Trump Trial Two is that the only comparable experience in this life was the mid-September 2001 repetitive viewing of the towers collapsing, a place where we had once worked. Having testified numerous times in the House and Senate, the terrorism images from 1/6/2021 are no less painful but scarier than those from 9/11/2001.
The second and ongoing reaction is also suffused with pain, at how badly many Senators are behaving in response to the superb prosecution led by heroic Representative Jamie Raskin and whose breakout star is Stacey Plaskett, the non-voting House delegate for the American Virgin Islands.
While true that impeachment and trial under the Constitution is its own thing, and/so not formally governed by the laws governing criminal or quasi-criminal proceedings, still the rules of the road there and those in the Constitution itself, reveal many Senators’ misbehavior and cluelessness.
In this trial, Senators are jurors sworn to impartially receive and weigh the evidence before rendering a verdict. But they are giving media interviews about the evidence mid-trial, as we watched Lindsey Graham, Cory Booker, Ted Cruz and Jeff Merkley, among many others, do.
As bad as that is – very – beyond category is Senators meeting mid-trial with the advocates – as Trump’s lawyers admitted about Cruz, Graham and Mike Lee of Utah. The latter seems to have become part of the defense team, as he awkwardly and unsuccessfully attempted to take the razor’s edge off the House Mangers’ 1/10/2021 presentation, by asking for innocuous evidence involving him to be stricken from the trial record.
The questions of which Senator is behaving worst and which we disrespect most are tough, with so many outstanding choices. But the winner in both categories is Cruz. Yet Cruz while flaunting his pre-trial verdict makes one serious point, saying that Trump’s “conduct does not come close to meeting the [criminal] legal standard for incitement.” Deferring for a moment how this First Amendment professor will grade Cruz – the implicit point is that the Constitution textually specifies impeachment and trial for “high crimes [felonies] and misdemeanors” not just anything Congress chooses.
We’ve read the group letters signed by a trillion constitutional scholars including a billion from the Federalist Society, who challenge that literal interpretation. But it raises a fair and open question that will remain open unless and until? Till someone is convicted of conduct either not a crime or a crime, but one either not proven or unconstitutional.
Say Trump is convicted, barred from holding federal office again, tries to enter the 2024 primaries, is rejected and goes to court making Cruz’ argument. Then and only then we will get an answer to that open question, because a court – probably SCOTUS – will give it – and will because “it is emphatically the province and duty of the judicial department to say what the law is.” SCOTUS told that to another seeking government employment, a Mr. Marbury.
Back to Señor Cruz, he whose father and wife, were both maligned by Trump, but since has repeatedly begged “thank you sir give me another.” Well, his pronouncement about what constitutes criminal incitement is ludicrous.
We’ve constantly been reminded of Brandenburg v. Ohio, the 1969 I Ching on criminal incitement. Brandenburg in contrast to the January 6 Trump events, involved only a threatened July 4, 1964 Klan march and “revengeance . . . on Congress” for “surpressing the white Caucasian race” as Klan leader Clarence Bradenburg stated. Because the statute that he violated was not limited to speech that “is [not only] directed to inciting or producing imminent lawless action [but] is likely to produce such action,” Bradenburg’s conviction and the statute violated the First Amendment.
The two elements necessary to criminally punish speech (1) intent to incite lawlessness and (2) likelihood of that result, were powerfully, comprehensively and unequivocally demonstrated by the House Managers. Either watch the eight-hour presentation from 1/10/2021 or review the Cliff Notes versions that the Times and other newspapers have put in their digital editions. That Trump incited lawless conduct does not even require the self-evident conclusion that he incited the violence of 1/6/2021 – since he was indisputably urging everyone, including Georgia’s Secretary of State, his Veep and his mob to defy laws involving the electorate, the certificates issued by all 51 jurisdictions with electors and the rulings of 61 courts. As Senator McConnell stated just before the insurrection: “the voters, the courts and the states have all spoken . . . if we overrule them . . .The electoral college would cease to exist [and] our democracy would enter a death spiral.”
The “likelihood” element is much easier in this case than any SCOTUS has ever confronted involving Klan members, Nazis, anarchists and insurrectionists – all well represented in Trump’s horde – because lawlessness was not merely likely, but happened. As we knew it would after some of the same folks had plotted to seize Michigan’s Capitol and its Governor and execute her in Wisconsin. So, Ted your wife is cute, your dad didn’t kill JFK, but you still get an F.