Saturday afternoon, 43 GOP senators betrayed both their oath of office and, more particularly, the oath that they swore to impartially hear and judge the evidence presented in Donald Trump’s impeachment trial. They cavalierly discarded that evidence, laid out so meticulously by Representative Jamie Raskin and his eight fellow House managers, and they voted to acquit Trump even though the vast majority of them surely knew—and likely would have admitted in private—that he was guilty as sin.
Indeed, immediately after voting to acquit, Mitch McConnell attempted to rescue his historical legacy by excoriating Trump in a speech from the Senate floor and claiming he had voted to acquit only on procedural grounds—that he didn’t believe the Senate should be trying a president after that president has left office. Given that McConnell had made it impossible to hold a trial while Trump was still in office, this was an entirely self-serving effort to excuse a punt that McConnell clearly took only to appease the GOP’s Trump-besotted base.
However much McConnell wants to play both sides, the “not guilty” vote by 80 percent of the GOP’s senators has to rank both as the most shameful and also by far the most dangerous vote cast by our senators in living memory. For McConnell and his colleagues have provided Trump with a glorious opportunity to, at the very least, dog the political system, and tease it with the possibility of another presidential run, backed by the mob, over the coming years.
The 43 Benedict Arnolds who cast common sense and decency aside have neutered the crucial role of the Senate as a check on presidential power by affirming that literally nothing—not even a president’s sending a lynch mob after his own vice president in an effort to sabotage the peaceful transfer of power—is enough to merit conviction by that body. And, in so doing, they have given a lifeline to extremist paramilitaries, and to demagogic politicians, who might want to use violence to promote and enforce a MAGA-type agenda in years to come.
There are, I would suggest, three remedies for this insanity. The first two are political in nature.
The 14th Amendment to the Constitution provides for a simple majority of senators to vote to prevent insurrectionists from holding public office again. Fifty-seven senators voted to convicted Trump for the crime of insurrection, ergo it ought to be an easy-lift to get at least 50 of them to activate this post–Civil War provision as a follow-up.
Building on this, whether or not Trump is ultimately barred from running for office again, Saturday’s vote showed, in the clearest possible way, that the GOP is, at this point, simply a cult, a plaything for Trump’s personal interests. It is a party void of coherent political ideology, void even of the ability to gauge its own long-term interests as an institution. When Trump was in power, it made some sense from a purely Machiavellian perspective for conservatives in the party to hide their distaste of the man and rally around him despite his criminality. With Trump out of power, however, their continuing to side with him even after his mob put their own lives at risk smacks of nothing so much as Jonestown-style End Times fanaticism. The party has made its bed with an exiled Trump and his fascist, conspiracist, acolytes, with people such as Representatives Marjorie Taylor Greene (Georgia) and Mo Brooks (Alabama); now, I suspect, moderate, principled, Republican political figures such as Senator Lisa Murkowski (Alaska) and Representative Adam Kinzinger (Illinois) will start seeking out ways to ditch the party—either with the intent of forming a third party, or, perhaps more likely, to form an independent caucus. Both outcomes would serve to help break the Trumpist stranglehold on right-of-center politics in today’s America.
The third remedy, however, might ultimately prove the most important. Trump has spent decades not only flouting the law in broad daylight but often even boasting about it. Throughout his adult life, he seems to have played fast and loose with the tax code—as detailed in a series of extraordinary investigative reports by The New York Times. As a candidate for high office, he may well have fallen afoul of campaign spending laws; as a mobster president, he gave every appearance of using the vast powers of the US federal government to channel money into his family businesses; as the loser of a reelection campaign, he was caught on tape intimidating public officials in Georgia and explicitly urging them to “find” a very specific number of votes to give him the election win; and as the desperado would-be leader of an insurrectionary mob, he inflamed that mob to attack the Capitol on January 6 of this year; and so on. Not to mince words, there has never been a president who gave up as many hostages to legal fortune as Trump; and there has never been a president whose alleged crimes were of so serious a nature.
The ball is now most assuredly in the hands of the legal system. We know that the New York State attorney general is investigating Trump and the Trump Organization finances, and we know that Trump is also under investigation in Georgia. The Washington, D.C., attorney general is also reportedly investigating the disgraced tycoon for violation of a local ordinance against inciting violence. And it’s entirely likely that there are other ongoing investigations, particularly around Trump family finances, underway at the state and federal levels too.
And those are just the criminal investigations of this most corrupt of all American presidents. Assuredly, over the coming months, Trump will also face a barrage of civil lawsuits—including, quite possibly, for damages from the victims, and their families, of the mob that Trump unleashed on January 6. It’s entirely possible that, like Rudy Giuliani and Sydney Powell, he might be sued by the companies that manufacture the voting machines that he alleged were used to flip votes to Joe Biden.
As a private citizen, Trump is entitled to the same legal rights as any other private citizen. If he is indicted, he has the right to a trial in which he is judged by a jury of his peers. If he is sued in civil court, he has a perfect right to present a rigorous legal defense as to why damages should not be awarded against him. If in the coming months and years, his vast debts are called in and he ends up beggared, his gold baubles repossessed, his gaudy artworks sold off, he would even have the right to be represented by a public defender. But what he won’t have anymore is the ludicrous and fundamentally antidemocratic protection afforded him while in office by the Department of Justice presumption that a sitting president can’t be prosecuted in criminal court.
Raskin and his team spent several days laying out a powerful chain of evidence showing that Trump incited an insurrection. A large majority of senators—though, alas, not the all-important two-thirds needed to convict—were thoroughly convinced by the evidence. It’s now up to prosecutors, to grand juries, and to courts to step in to mitigate the damage done by the 43 senators who crudely grandstanded for their base and explicitly ignored the evidence they were presented with.
Investigating, and if necessary prosecuting, Trump for the many crimes he is alleged to have committed over the years isn’t political payback; it’s simply the law doing its job against a potential felon. In fact, given the myriad, and very specific, allegations swirling around Trump, it would be an example of clear, illegitimate, favoritism at this point to not investigate the ex-president.
Bring on the evidence. Bring on the witnesses. If Trump is innocent—be it of inciting a mob, of avoiding taxes, or of threatening election officials—his top-flight lawyers will get every opportunity to prove their case, including by letting Trump himself take the stand to explain and justify his actions. But if the weight of evidence points to his malfeasance, and if juries find him to be guilty, surely even McConnell, who so cynically voted to acquit Trump and then immediately announced that he held the man responsible for the lethal acts of January 6, couldn’t really object to the historical record’s being set just a little bit straight.