Either GOP senators are loyal to Trump, or they desert him and face the consequences: The choice is entirely framed as revolving around Trump.
But that isn’t the choice GOP senators actually face, and describing this choice accurately is of paramount importance.
The real choice they face is not between sticking with Trump or going against him. Rather, it’s between sticking with Trump or remaining faithful to their oath of office, which requires them to defend the Constitution against those who would undermine or destroy it, and to the oath of impartiality they take as impeachment jurors.
Trump tried to overthrow U.S. democracy to keep himself in power illegitimately, first through corrupt legal efforts, then through nakedly extralegal means, and then by inciting intimidation and violence to disrupt the constitutionally designated process for securing the peaceful conclusion of free and fair elections.
Trump fully intended to subvert the constitutional process designating how our elections unfold, and intended this every step of the way. GOP senators cannot remain “loyal” to Trump without breaking their oaths to execute their public positions faithfully.
The weakness of Trump’s own defense will reveal the true contours of this choice — and demonstrate how his defenders, both on his legal team and in the GOP Senate caucus, will try to bury the inescapable nature of this choice under mounds of obfuscation.
Trump’s laughably weak defense
Trump’s lawyers will first argue that the Senate “lacks jurisdiction” to try Trump, on the grounds that he no longer holds office. This idea has been roundly debunked by lawyers across the political spectrum, including Chuck Cooper, a conservative legal icon.
As Cooper argued, the Constitution provides for a Senate vote not just on removal for “high crimes and misdemeanors,” but also for “disqualification” from ever holding office again, which by definition must also apply to those who are no longer in office but might run again later.
But the larger thrust of this “defense” is pernicious in another way.
GOP senators hope to take refuge in the idea that former presidents are exempt to give themselves a rhetorical and political means of dodging a direct vote on whether what Trump actually did constitutes high crimes and misdemeanors.
This has been widely depicted as mere tactical maneuvering. But it’s much worse than that: It’s an active evasion of their own duty as public officials to defend the Constitution. This defense, then, actually unmasks their dereliction of this duty.
Trump incited violent insurrection
Trump’s lawyers will also argue he is not guilty of “incitement of insurrection.” They will say he didn’t “direct anyone” to carry out the attack, as he used the word “peacefully” while haranguing the mob on Jan. 6.
And they will say that because the riots were “preplanned by a small group of criminals,” then Trump cannot have “incited” them.
All this is pure baloney. Trump spent months urging his supporters to mobilize for war over the election results, which he said could not be legitimate if he lost, meaning a struggle to overturn them would inevitably be a righteous cause in their own defense. If some preplanned the attack, they did so at what they understood — correctly — as his direction, as their own language has confirmed.
What’s more, if some preplanned the attack well in advance, many did not, and people in this latter group also attacked the Capitol. They, too, were incited by Trump’s haranguing leading up to and on Jan. 6.
And if Trump intended them to be peaceful, it’s strange that he again whipped up rage at then-Vice President Mike Pence while the mob rampaged into the Capitol looking for Pence and lawmakers who were counting electoral votes. It’s also odd that as the rampage worsened, he refused entreaties to call for the very calm his lawyers claim he wanted to see.
Acquitting Trump means declaring that these known facts do not point to high crimes and misdemeanors.
Senators have a duty
Corey Brettschneider, a constitutional scholar who focuses on the role of oaths of office in the constitutional scheme, says these two oaths complement one another.
“That second oath doesn’t replace the first,” Brettschneider tells me. “It clarifies it.”
In acting as jurors, Brettschneider says, senators are supposed to answer “the specific question” of whether the president is guilty of “high crimes and misdemeanors.”
“Trump tried to subvert a free and fair election by spreading disinformation, trying to force public officials to overturn the results and riling his supporters up to attack the Capitol,” Brettschneider continued. “That is about as paradigmatic a high crime as one can get.”
When senators are in the role of jurors, Brettschneider continues, the two oaths interlock to set the terms of their “constitutional duty,” which precludes operating out of “partisan loyalty to a president.”
In other words, it’s either the former or the latter. The choice is not just about whether they are going to be “loyal” to Trump or not. That idea actually undersells the extraordinary dereliction of duty GOP senators will be committing if and when they vote to acquit.