When a Trial Is Not a Trial

This wasn't even an episode of Law & Order

When a Trial Is Not a Trial

The jury has reached a verdict. Trump is wounded, but not destroyed.

The trial was deeply flawed. Before all the evidence was in, before summations, and with no instructions as to the law, three members of the “jury,” Senators Ted Cruz, Lindsey Graham, and Mike Lee huddled privately with defense counsel to discuss tactics and strategy. This was a trial without rules and without moorings. It is amazing that the Democratic senators didn’t move to disqualify them from voting. In a court of law, this trio of GOP senators would be thrown off the jury. This bizarre proceeding was the stuff history is made on. As the conservative Wall Street Journal editorial board observed: “Trump might be acquitted but he won’t live down his disgraceful conduct.”

The proceeding was deeply political. Certain jurors couldn’t resist talking to the press. Lindsey Graham said that the avalanche of evidence burying Donald Trump for inciting an insurrection is “offensive and absurd.” His colleague Marco Rubio thought the trial  a “waste of time,” and a “demand for vengeance from the radical left.”

Seven GOP senators voted to convict, the most bipartisan vote  in the history of presidential impeachments. After using his power to delay the trial until after January 20, Mitch McConnell intimated he would have voted to convict, but argued there was no “jurisdiction” because Trump had left office. He said:  There is no question that President Trump is practically and morally responsible for provoking the events of that day.” And the events of the day were horrific.

Had McConnell voted for conviction, and just nine other senators in his caucus joined him, there would have been enough votes for conviction.

It should come as no surprise that McConnell slithered out of his constitutional duty. Senators are political animals. No wonder Profiles in Courage is such a thin book.

McConnell’s position is dead wrong. The constitutional text sets the essential test. The prescribed remedy is removal “AND ” disqualification. Because Trump was out of office at the time of the trial, only the second remedy was available. There is ample precedent in to England antedating the Constitution for impeaching a former office holder. In America, the Blount case in 1797, the Belknap case in 1876, the statement by 200 constitutional law experts, and the ruling of the senate at the outset of the proceeding make clear there was ample jurisdiction in the senate to try the case. If certain senators sincerely believed there was no jurisdiction, they should not have voted at all. Moreover, a “January exemption” makes no sense. If  the founders of the country wanted to give a departing President a free pass for anything he did in the month of January, they would have said so.

Then, there are those who argue wrongly that Trump’s inciting statements are protected by the First Amendment. Scores of constitutional law professors, including past officials in Republican administrations, consider the argument frivolous. The First Amendment was crafted by the founders to protect the people from the government, not the other way round. Besides, Trump’s words were understood as he intended them—to provoke violent action. If free speech protected incitement to violence, incitement to violence would never be criminal.

It is unthinkable that the victims of a crime could sit in judgment on the wrongdoer. In a court of law, the entire senate would be disqualified.

It is farfetched, moreover, to think of what happened as a trial. A jury in a criminal trial takes an oath to decide the issue without fear or favor. The word “verdict” comes from the Latin, and means to tell the truth. Politicians don’t have a great reputation for truth.

Afraid of primary challenges and eager for lush contributions from Trump’s “stop the steal” PAC, the GOP members of the senate “jury” were centered on retaining political power. It is. Any Republican who votes for acquittal votes out of fear and in glad anticipation of future favor. Trump’s brooding shadow sits in the jury box, his thumb on the scales of justice.

Impeachment is a show trial, not exactly unlike Uncle Joe Stalin’s show trials in 1937 — a trial orchestrated for the public rather than a proceeding seeking a just adjudication.

There are no rules of evidence, and no cross examination in this trial. The accused was in absentia,  as Trump rejected the invitation of the House Managers to attend the proceeding.

The videotaped evidence established that Trump did not send the mob to the Capitol in peaceful protest. One wore tactical gear and carried a baseball bat. Another brought a red ladder to scale the battlements. Others brought tools and materials to erect a scaffold and a rope in case the mob found anyone to lynch. This crowd was spoiling for a fight, and Trump brought them there to fight. He had exhausted all other avenues of overturning the election–recounts, wooing state legislators, and suborning election officials. There were roughly 61 lawsuits, none of which produced evidence which would have changed the outcome. Force was the only option to stop the constitutional certification of the vote and “take back our country.”

The Jews are always vulnerable to history. There was another bearded rioter wearing a hoodie emblazoned with the chilling rubric, “Camp Auschwitz, Work Brings Freedom,” the nazi slogan that greeted arrivals at the death camp. And alongside the anti-Semites in the rabid mob, were a bad lot band of white supremacists, conspiracy theorists and racists—Proud Boys, QAnons and Oath Keepers.

Who financed these people? We are supposedly in the midst of the biggest economic downturn since the Great Depression. Who paid their transportation expense? Did they stay at the Trump International Hotel which jacked up its room rates on January 5 and 6 from $2,200 to $7,500 a night. Who paid for their sustenance? Was it Trump’s “Stop the Steal” PAC?

Who organized and assembled the small group that would storm the building, scale its hallowed walls and invade its chambers where our ruling laws are made? Who instructed the trespassers on how to do it, and where to go? Many carried or wore Trump or QAnon paraphernalia. “Trump 2020” banners  or MAGA hats, the tools and emblems of their seditious enterprise.

There is more to this than Trump’s incendiary inuendo in front of the White House exhorting the mob: “You will never take our country back with weakness.” There is more to it than Trump saying to the mob of criminals: “We love you, you‘re very special.” When House Minority Leader Kevin McCarthy told Trump to call them off, Trump responded, “Well, Kevin, I guess these people are more upset about the election than you are.”

And, most curious, why did the rioters stand down just as they had taken over parts of then building? Were they finally outnumbered and outgunned by security forces? Or were they ordered to “go home” by someone in command and control? In a real trial, juries draw inferences from the evidence before them.

And what of our security forces? Where was the intelligence which would have triggered the call-up of the National Guard? Why was the National Guard so late to the party? The heroic DC and Capitol Police were no match for the rioters without reinforcements.

Someone will investigate and find out who was behind the riot, who organized and financed it, and who plotted to launch this shameful attack on our institutions, our democracy, our constitutional system—perhaps more fragile than anyone ever thought. A number have already been indicted for conspiracy.

So what have we here?  To paraphrase Churchill, is this end of the beginning of the hooliganism and thuggery we saw in Washington? Or are we in the twilight of our fragile democracy—the beginning of the end?

What is the way forward? McConnell left Trump’s fate to the criminal justice system. True, 18 USC §2383 provides that,  “Whoever incites,… assists, or engages in …insurrection against … the United States or the laws thereof, or gives aid or comfort thereto, shall be … imprisoned not more than ten years … and shall be incapable of holding any office under the United States.” There is also a legislative remedy besides impeachment. A simple majority of Congress could pass a resolution invoking Section 3 of the 14th Amendment, which bars anyone from holding office who has “engaged in insurrection” against the United States. Where are the Democrats on this one? 

Biden’s choice for attorney general, the distinguished jurist Merrick Garland, will have his work cut out for him. He has vast experience prosecuting domestic terrorism cases. When he was in the Justice Department years ago, he supervised the prosecution of Timothy McVeigh in the Oklahoma City bombing case. Republicans in the Senate will doubtless give him a tough time in his confirmation hearings. Most of them care little about the need for full accountability for the evil of January 6, a day like another in American history “which will live in infamy.”

James D. Zirin

James D. Zirin, a lawyer, is the author of the recently published book, “Plaintiff in Chief, -A Portrait of Donald Trump in 3500 Lawsuits.”