After a day of horrifying, searing evidence from the House managers, Republican senators are increasingly desperate to figure out how to avoid rubber-stamping the ex-president’s incitement to riot, which injured scores, resulted in five deaths, defiled the Capitol and traumatized staff and lawmakers. (Hint: Vote guilty.) Their excuses are flimsy, even laughable.
“Not constitutional.” Sorry, the Senate voted otherwise on Tuesday after a devastating presentation of law, precedent and common sense showed that they most certainly can impeach an official while in office and convict afterward. Reportedly even Sen. Ted Cruz (R-Tex.) admits the Senate could exercise jurisdiction. (He’d rather not, however.) It would be absurd for the Senate to run home in the final weeks of a president’s time in office so he can escape his impeachment trial. (Well, that is essentially what they did, right?)
“First Amendment.” Nope. A president has every right to, say, march in a neo-Nazi parade and invite a foreign country to invade. But such conduct is still impeachable. It is not a question of his right to say what he wants, but whether he committed “high crimes and misdemeanors” (in this case, incitement to sedition). Moreover, as dozens of constitutional scholars have explained, incitement to riot is not protected speech.
“No evidence he incited the mob.” That one went out the window on Wednesday, when House managers masterfully took the Senate through weeks of the ex-president’s Big Lie, his “stop the steal” campaign and his call to “fight.” He sent supporters a “save the date” for protests in the capital, whipped them into a frenzy for weeks and timed his harangue just as the Congress was beginning to count the electoral college votes. They even played a video of a rioter reading aloud the disgraced president’s tweet vilifying Vice President Mike Pence as the crowd amassed outside the Capitol. The managers presented a mound of evidence showing the insurrectionists believed they were following the then-president’s orders.
“He made that video.” The one where he said “We love you” to the mob that terrorized the Capitol, came within feet of lawmakers, bludgeoned and killed police, and sought out the speaker and vice president to kill them? Well, that only came after hours of lawmakers, some in the Senate, pleading with him to call off the mob. And he never called in the National Guard to restore order.
“What a precedent!” Yes. If another president spends months trying to undermine an election, incites a riot and, as Rep. Joaquin Castro (D-Tex.) put it, “left everyone in the Capitol for dead,” he too should be impeached.
“Let him be criminally prosecuted.” This was actually suggested by one of his own attorneys. (You get what you pay for.) The senators took an oath of office. They have an obligation to decide if he should be barred from serving future office. He is being investigated by a Georgia prosecutor for his attempt to strong-arm Secretary of State Brian Raffensperger, but that does not absolve them of the obligation to do their job. (How pathetic is it, by the way, to argue, “Other people can uphold their oaths, so we don’t have to”?)
Perhaps now it makes sense that at the end of Wednesday’s proceedings, Sen. Mike Lee (R-Utah) melted down about an irrelevant detail in the impeachment managers’ presentation (his passing a phone to another senator whom the former president had meant to call) that he claimed was false. Never has it been more true that “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither, pound the table.” (However, it would be interesting to call Lee and other senators to testify under oath.)
The unpleasant reality is that many Republican senators stoked the MAGA mob for weeks with the Big Lie. Some made spurious attempts to upend the election. It is therefore uncomfortable for them to convict the ex-president because his followers actually listened to him and lay siege to the Capitol. This discomfort compounds their constant aversion to standing up to the disgraced ex-president.
Senate Republicans are desperate to avoid the impression they are spineless careerists lacking a modicum of the courage the police showed in saving their necks on Jan. 6. Instead of resorting to obviously silly arguments, they might actually uphold their oaths and vote to convict. Nah, anything but that.
President Trump’s Senate impeachment trial
The evidence: All of the exhibits presented in the Senate trial
What happens next: A guide to Trump’s impeachment
Graphic: Where Senators stand on impeachment
Stay informed: Read the latest reporting and analysis on impeachment here.