House impeachment managers on Tuesday submitted their brief in advance of the impeachment trial scheduled to begin next week. The brief begins with a statement of incontrovertible facts:
The conclusion of the brief — that such behavior, if it is not punished, will be repeated — is so elementary and the conduct is so egregious that one is tempted to ask why a trial is even needed. The misconduct is indisputably a “high crime and misdemeanor” and the need for deterrence is so obvious that one is hard-pressed to think of any principled objection. As Rep. Liz Cheney (R-Wyo.) said in her written statement supporting impeachment: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
But Republicans do object, and for that reason, the trial is necessary. It is necessary to remind the country of the Big Lie that Republicans embraced and the horrendous violence that ensued. It is necessary to force Republicans to make a choice: Support sedition, or support the Constitution.
It is amusing that Republican apologists keep “warning” the impeachment managers not to put forward a factual case. Yes, the facts would be “prejudicial” — insofar as they leave no doubt as to the guilt of both the former president and his Republican enablers. Sen. Lindsey O. Graham (R-S.C.) “threatened” to call the FBI as witnesses if the Democrats brought forward witnesses. In fact, Democrats could call on FBI agents as part of their case, too.
Impeachment trials are exercises in public education and accountability, which is precisely why Republicans refused to allow a factual presentation at the first impeachment trial. Democrats do not want to repeat that travesty, but there is a way to avoid a lengthy factual case: Have the ex-president’s lawyers and the Senate as a whole stipulate to the facts set out in the brief. The stipulation should be specific (e.g., it should cite Donald Trump’s tweets and his speech that incited the violence), it should repudiate claims that the election was illegitimate, and it should include observations from members of Congress about the trauma inflicted that day.
Unanimous agreement as to the ex-president’s seditious conduct would be one way to “move on” and to instill “unity.” If Republicans still want to acquit after all that, they can do so — at the price of revealing their own fidelity to a disgraced leader and contempt for democracy.
Republicans want to escape responsibility by clinging to a patently ridiculous argument that the Senate cannot proceed with a trial now that Trump is out of office (after Senate Minority Leader Mitch McConnell (R-Ky.) refused to let a trial begin before Jan. 20). But as the managers write in their brief: “As a matter of constitutional text and structure—not to mention common sense—Article II, Section 2 strongly supports the conclusion that former officials remain subject to impeachment and trial for grievous abuses committed during their tenure in office.” The managers point to four cases that support the impeachment trial of an official who left office before the trial. The constitutional argument is no argument at all; it is a dodge by Republicans to avoid confronting their constitutional obligations.
“This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior,” the brief concludes. “Indeed, it is difficult to imagine a case that more clearly evokes the reasons why the Framers wrote a disqualification power into the Constitution.” Failure to convict would “embolden future leaders,” they argue.
Let’s be clear: The vast majority of Republicans will refuse to convict because it would mean acknowledging their own complicity in riling up the MAGA base. It would mean acknowledging that their objections to the election results were specious and that their attempt to overthrow the election even after the mob was cleared from the Capitol was reprehensible. It would mean definitively standing up for the Constitution and democracy, instead of clinging to a seditious president’s fictitious version of events.
In choosing to acquit, Republicans will convict themselves, proving once and for all they are incapable of upholding their oaths and of putting defense of democracy over their own perceived advantage.