The attorneys representing Donald Trump in his second impeachment trial, Bruce Castor and David Schoen, have received a lot of criticism concerning their presentation to the Senate. Indeed, some of it has come from their client. Yet, in some ways, the time constraints that contributed to their apparent lack of polish worked in their favor. They couldn’t call in professional filmmakers to produce a slick and deceptive video montage. They had no time to throw together an 80-page word salad in lieu of legitimate legal arguments. But they did have the facts, the Constitution, and one crucial question they wanted to ask the Democrats.
Attorney Castor posed that question 40 minutes into his opening remarks on Tuesday: “Why is the majority of the House of Representatives afraid of the American people?” Castor went on to explain why that question had to be asked and how the answer lays bare the cynical motivation behind the precipitous House impeachment: “Let’s understand why we are really here. We are really here because the majority in the House of Representatives does not want to face Donald Trump as a political rival in the future.” He’s right, of course. Democratic fear of a Trump reelection has provided the primary impetus for both impeachments, as Rep. Al Green (D-Texas) made obvious as early as May 2019:
I’m concerned if we don’t impeach this president, he will get re-elected. If we don’t impeach him, he will say he’s been vindicated. He will say the Democrats had an overwhelming majority in the House and they didn’t take up impeachment. He will say that we had a constitutional duty to do it if it was there, and we didn’t. He will say he’s been vindicated … Here’s what I say, we’re confronting a constitutional crisis as I speak to you…. We must impeach him.
The Democrats simply don’t trust the electorate to make the “right choice” if Trump is on the ballot. The first impeachment was meant to detach him from his supporters, but it produced the opposite result. Despite that farce, he received 10 million more votes in 2020 than he won in 2016. Having nonetheless lost the election pursuant to the efforts of what TIME magazine’s Molly Ball gleefully describes as “a well-funded cabal of powerful people,” Trump unnerved the Democrats by hinting that he might run again in 2024. Consequently, they used the January 6 “insurrection” as a pretext for another impeachment whose express purpose is to deny the electorate the opportunity to vote for Trump again.
The Senate is not going to convict Trump based on a conspiracy theory the House managers are making up on the fly because their original case is collapsing around their ears.
It is by no means clear that the public supports the Democrats on this, however. An AP-NORC poll released last week indicates that fewer than half of all Americans believe Trump should be convicted by the Senate. As David Schoen put it in his opening remarks, “A great many Americans see this for exactly what it is: a chance by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million-plus American voters.” Moreover, the House impeachment managers are unintentionally reinforcing this impression in the Senate. As Sen. Lindsey Graham (R-S.C.) told Sean Hannity Wednesday evening:
I think most Republicans found the presentation by the House managers offensive and absurd.… The managers have got this cockamamie idea absurd theory that Donald Trump was monitoring the Proud Boys’ website, and other far right websites, and that he … knew this was going to happen and encouraged it. That is Looney Tunes. And you know why they are saying that? Because if the president didn’t know, and it was actually preplanned, he is not guilty.
In other words, the new narrative peddled by the House impeachment managers implicitly confirms mounting evidence that the Capitol riot was pre-planned. They are, for all intents and purposes, admitting that their hastily cobbled together article of impeachment charging Trump with “incitement of insurrection” is nonsense. The Senate is obviously not going to convict Trump based on a conspiracy theory the House managers are making up on the fly because their original case is collapsing around their ears. Absent a conviction, the flimsy case for disqualifying him from holding public office and depriving the voters of the right to nominate and elect him for president evaporates.
Still, it’s all but certain that every Democratic senator — plus a few Republicans — will vote to convict without regard to the evidence. The motion won’t pass, however, because the required 67 votes just aren’t there. That should preclude a subsequent disqualification vote, but that doesn’t mean the Democrats won’t attempt it anyway. Barring Trump from holding future office is, after all, their main goal. Thus, it’s likely that they will pursue some parliamentary maneuver in the hope of bringing it up for a vote that requires only a simple majority to pass. The constitutionality of such a disqualification in the absence of a conviction would almost certainly be decided in the U.S. Supreme Court.
All of which brings us back to Attorney Castor’s original question: “Why is the majority of the House of Representatives afraid of the American people?” Aside from the presidency, the voters weren’t kind to the Democrats in 2020. They lost seats in the House, barely eked out a tie in the Senate, and suffered crucial losses in gubernatorial as well as state legislative races. That is, of course, why the Democrats distrust the voters. They’re afraid the American people will measure them up and once again find them wanting. If they lose half a dozen seats in the House and a couple of Senate seats in 2022, the Biden administration is done. And two years later Trump will show up at the feast like Banquo’s ghost.