In the 1987 movie “The Untouchables,” Eliot Ness, played by Kevin Costner, uncovers last-minute evidence that Al Capone (Robert De Niro) bribed the jury that is trying him on tax evasion charges. When Ness presents the evidence to the judge, the corrupt jury is dismissed and Capone is forced to plead guilty. Justice is done.

Imagine if the judge ignored the evidence and the corrupt jury acquitted the mob boss anyway. That is essentially what occurred in former president Donald Trump’s impeachment trial on Saturday when the Senate fell 10 votes short of the two-thirds majority needed to convict, because 43 Republicans voted to acquit.

In this case, the last-minute, incriminating evidence was a statement from Rep. Jaime Herrera Beutler (R-Wash.) highlighted by CNN on Friday night. Herrera Beutler says that House Majority Leader Kevin McCarthy (R-Calif.) told her that while the U.S. Capitol was under attack, he phoned Trump, begging him to call off the mob. Trump’s reaction? “Well, Kevin, I guess these people are more upset about the election than you are.”

This is damning — and utterly believable — evidence of Trump’s culpability not just in inciting the attack but in failing to try to stop it after it had begun. This goes straight to the biggest weakness in Trump’s generally pathetic defense. His attorneys at least had some things to say in defense of Trump’s actions before the riot. Their arguments may have been unconvincing and deceptive, but at least they had arguments: They said that Trump didn’t intend his supporters to violently attack the Capitol when he told them to “fight much harder” — he only wanted them to fight within legal and political channels.

But the Trump attorneys literally had nothing to say about Trump’s actions after the attack began. In his closing argument, lead impeachment manager Jamie B. Raskin (D-Md.) asked defense attorneys: Why didn’t Trump tell his supporters to stop the attack as soon as he learned of it? Why did he do nothing for at least two hours? And why did Trump fail to condemn the rioters? The defense attorneys had no response. Trump’s lawyers blamed House impeachment managers for not giving them any information about his actions — when the lawyers should have asked their own client for that information.

On Feb. 13, former president Donald Trump’s legal team argued for his acquittal, saying his words were protected by free speech. (The Washington Post)

It’s obvious why Trump’s lawyers couldn’t defend his conduct after the attack began. It was indefensible and inexcusable. The president was clearly rooting for the mob, at least initially. The conversation between McCarthy and Trump confirms that. So, too, does the fact that even after then-Vice President Mike Pence had to be evacuated from the Senate chamber at 2:13 p.m., Trump still inflamed the mob, which was now inside the Capitol, with a tweet critical of his vice president. (Impeachment managers played a video of rioters chanting “Hang Mike Pence.”)

Trump’s attorney Michael van der Veen said on Friday, “At no point was the president informed the vice president was in any danger.” That is clearly false. Sen. Tommy Tuberville (R-Ala.) reports that Trump called him around 2:26 p.m. to urge him to delay the electoral vote certification. Tuberville says he told the president that Pence had been hustled out and that the whole Senate was evacuating. Yet Trump still did next to nothing to attempt to rein in the rioters. Even after all the horrors of the day, Trump still said that he “loved” the mob and that they were “very special.”

Sen. Lindsey O. Graham (R-S.C.), the arch Trump lickspittle, sought to cast doubt on the new evidence by tweeting: "The source of these stories is the liberal media with an agenda.” Nope. The source of these stories is Graham’s fellow Republicans. Imagine how damaging it would have been to Trump’s defense if Herrera Beutler and Tuberville had testified under oath for the whole world to see — joined, ideally, by McCarthy, former Trump White House chief of staff Mark Meadows and others with direct knowledge of Trump’s actions on that fateful day.

Trump’s attorneys were so eager on Saturday to avoid witnesses that they agreed to stipulate that Herrera Beutler’s testimony was accurately reported by CNN (while falsely claiming that McCarthy had denied her account). The surprise is that Democrats took the Trump team up on its offer even after the Senate had voted to hear witnesses. It would not have been difficult to depose Herrera Beutler and other witnesses while the Senate continued with other business. That is what the Senate did in 1999 when it deposed three witnesses during the Bill Clinton impeachment trial.

No amount of testimony, admittedly, would change most Republican votes, because most GOP senators are too terrified of Trump to convict him. Only seven dared to vote for conviction — and that’s more than expected. But at least a trial with actual witnesses would have left a more comprehensive and accurate record of Trump’s depravity for the public and for posterity. When American democracy has faced an unprecedented assault from an American president, it behooves the Senate to at least pretend to care.

It is disappointing that Democrats refused to force a fuller airing of the facts. But even without hearing from witnesses, the House impeachment managers still presented conclusive evidence of Trump’s guilt. Eighty-six percent of the Senate Republicans just didn’t care. The smoking gun was right in front of them, and they said, “What gun? What smoke?”

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