In their drive to convict Donald Trump in his impeachment trial, the Democrats are ripping a page from Margaret Atwood, another from Ernest Hemingway and a third from Anton Chekhov. Their strategy to punish the 45th president for his role in the January rampage at the Capitol is to employ a venerable literary technique: Show, don’t tell.
So on the first day of the second Trump impeachment, they were not telling the story of the riot at the Capitol so much as they were showing the savagery of the insurrection they believe the former president fomented – retelling the events of Jan. 6 and airing a visual rerun of events they saw firsthand to senators who are acting as jurists in the trial of a crime in which they, probably uniquely in the annals of jurisprudence, were among the principal witnesses and potentially were among the principal victims.
“If that is not an impeachable offence,” Democratic Representative Jamie Raskin of Maryland, the lead impeachment manager making the case against Mr. Trump, said after showing a video of the rampage at the Capitol, “then there is no such thing.”
Ostensibly the four-hour debate on the Senate floor Tuesday – where Trump defenders had a “show-don’t-tell” video presentation of their own to demonstrate that Democrats had been determined to impeach him for years – was on the constitutionality of trying a president after he left office. That was not an insignificant argument in a chamber bitterly divided on a partisan basis; the first line of defence mounted by lawyers and legislative advocates for Mr. Trump was based on the view that the 45th president was immune to conviction because he no longer occupies the White House.
Mr. Trump’s lead defence lawyer, Bruce Castor Jr., acknowledged that the riot was “this awful thing” and spoke broadly, in regard to the Trump remarks the Democrats consider incendiary and insurrectionary, of free speech. “This assault on the Constitution will not prevail,” he said, and his colleague David Schoen argued that the proceedings constituted “unsupportable constitutional theory.”
But that very constitutional dispute, conducted with unusual erudition and emotion in a chamber where the discourse is more often political than legal and personal, allowed the principals in Washington’s greatest drama to foreshadow their positions, with all Democrats supporting conviction of Mr. Trump and the apparent majority of Republicans opposing that effort in a legislative chamber with 50 members of both parties, but where only 33 votes are required to acquit.
The final disposition of the case against Mr. Trump is days, perhaps a week, in the future. But already the lawmakers are setting out the conflicting arguments amid brave talk of “the rule of law,” “due process,” “fundamental fairness” and “democratic self-government,” with frequent references to the Founders who drafted the Constitution mixed in. In the background was the fear – unexpressed by Democrats but a lingering whisper in their collective ears – that this very trial will deepen American divisions rather than heal them and render Mr. Trump less a figure of mayhem than of martyrdom.
“Our nation cannot possibly heal with it,” Mr. Schoen said of the impeachment trial, adding that it will “tear the country in half.”
Amid all this, the resolution of the jurisdictional legitimacy of the Senate trial never was in doubt and in fact had been settled in the past. Four times – the most recent in 1926, a case against Judge George English, when the charges were dismissed at the request of the House – the Senate has proceeded to examine former officials who left office. In each case the process went forward because the official was impeached while still holding his position.
The legitimacy of the current impeachment-trial process was affirmed Tuesday by a 56-44 vote, effectively settling in these extraordinary circumstances – involving what Senate Majority Leader Chuck Schumer of New York called “the gravest charges ever brought against a president of the United States in American history” – the vital question of the reach of impeachment. At the same time the Senate vote in effect dismissed the notion, proffered by critics of the Trump impeachment trial, that this winter’s action against Mr. Trump suggested that the floodgates would be open to trials of former presidents reaching back to the early chief executives of the country.
“Impeachment is not a ‘back-to-the-future’ procedure,” Ken Gormley, a constitutional scholar who is president of Duquesne University, said in an interview. “We won’t be seeing prosecutions of former presidents. Jimmy Carter at age 96 is safe from impeachment and trial.”
Tuesday’s deliberations were conducted with intensity and sobriety in a revered building – described by Trump advocate Mr. Castor as the “citadel of our democracy” – that still is surrounded by barbed wire. The proceedings began with an invocation from Barry Black, the Senate chaplain. His prayer cited a poem by the New England poet James Russell Lowell titled, poignantly and appropriately, The Present Crisis. Written while the country was being torn apart over the issue of slavery before the Civil War, it is known widely for this passage: “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.”
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