On the opening day of Donald Trump’s second impeachment trial there was a striking chasm, a gulf as large as the Grand Canyon, between the two legal teams. The House managers, a team of congressional Democrats who made the case for conviction, were well-briefed, cogent, focused, and eloquent. Trump lawyers were fun-house mirror opposites: ill-prepared, meandering, incoherent, and, perhaps worst of all, threatening.
Although the pro-conviction case was vastly superior in both presentation and merit, it seems like only one Republican senator, Bill Cassidy of Louisiana, switched his vote on the issue of the constitutionality of the trial. The day raised a question that goes deeper than Trump’s offenses: Has American democracy become so polarized that reasoned debate is pointless? Are the Republicans so committed to power that it doesn’t even make sense to try to persuade them with evidence and logic? If so, American democracy is facing a far-reaching and perhaps terminal crisis.
In presenting the case against Trump, Joseph Neguse and David Cicilline acquitted themselves admirably, in terms of both citing historical precedence for impeachment and indicting Trump for his incitement of mob violence on January 6. But the true star was Jamie Raskin, who spoke with passion about the violence of the January 6 riot and the need for redress. Raskin shared the story about how his daughter and son-in-law were visiting and staying in the office of a colleague when the Capitol had been breached.
“I couldn’t get out there to be with them in that office,” Raskin recalled. “All around me, people were calling their wives and their husbands, their loved ones to say goodbye. Members of Congress, in the House anyway, were removing their congressional pins so they wouldn’t be identified by the mob as they tried to escape the violence. Our new chaplain got up and said a prayer for us. And we were told to put our gas masks on.”
Near the end of his oration, Raskin said, “This cannot be the future of America. We cannot have presidents inciting and mobilizing mob violence against our government and our institutions because they refuse to accept the will of the people under the constitution of the United States.”
Bruce Castor Jr., the first of the president’s lawyers, gave a widely derided presentation that called to mind a high school student giving a book report on a text he hadn’t read. In contrast to the carefully measured words of the House managers, Castor seemed to be winging it.
His talk included a long and factually dubious digression on the importance of Senates in republican governance:
The last time a body such as the United States Senate sat at the pinnacle of government with the responsibility that it has today, it was happening in Athens and it was happening in Rome. Republicanism, the form of government, republicanism, throughout history, has always and without exception, fallen because of fights from within. Because of partisanship from within. Because of bickering from within and in each one of those examples that I mentioned and there are certainly others probably that are smaller countries that lasted for less time that I don’t know about off the top of my head but each one of them, once there was the vacuum created that the greatest deliberative bodies, the Senate of Greece sitting in Athens, the Senate of Rome, the moment that they devolved into such partisanship, it’s not as though they ceased to exist. They ceased to exist as representative democracy. Both replaced by totalitarianism.
It’s hard to catalogue all ignorance packed into this irrelevant babble: Ancient senates weren’t comparable to the modern American Senate; partisanship was only one of many problems troubling ancient Athens and Rome; those societies were not representative democracies; and they never succumbed to anything that can be called totalitarianism.
Castor then went on to chatter mindlessly about Nebraska politics in a flow of rambling words that called to mind the classic stream of consciousness of James Joyce or Virginia Woolf, although completely lacking in the poetic lyricism of those writers:
I saw on television in the last couple of days, the Honorable gentlemen from Nebraska, Mr. Sasse, I saw that he faced backlash back home because of a vote he made some weeks ago, that a political party was complaining about a decision he made as a United States Senator.
You know, it’s interesting because I don’t want to steal the thunder from the other lawyers, but Nebraska, you’re going to hear, is quite a judicial thinking place, and just maybe, Senator Sasse is onto something. And you’ll hear about what it is that the Nebraska courts have to say about the issue that you all are deciding this week. There seem to be some pretty smart jurists in Nebraska and I can’t believe a United States Senator doesn’t know that.
As bad as Castor was, Trump’s other lawyer, David Schoen, was worse. While Castor came across as a small-time lawyer out of his depth, Schoen spoke more forcefully but with a frightening undercurrent of menace. Schoen bought into the Trumpian line that the former president was an avatar of the people beset by an evil elite. He called the impeachment an attempt to invalidate the democratic rights of 74 million voters.
At one point Schoen said, “This trial will tear this country apart, perhaps like we’ve only ever seen once in history.” As Matt Ford of The New Republic rightly notes, Schoen’s “allusion to the Civil War mirrors his client’s own dark mindset. During the last impeachment saga, Trump angrily referred to the process as a ‘coup’ and also hinted that it could lead to a ‘civil war.’ The former president has an unusually open thirst for violence in political contexts that’s virtually unprecedented in modern American life.”
At the end of the day’s proceedings, a vote was held to decide whether the impeachment was constitutional. All 50 Democrats voted yes. They were joined by six Republicans: Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, Patrick Toomey, and Bill Cassidy. As against these six, 44 Republicans voted that the impeachment wasn’t constitutional. Of the six, the surprise was Cassidy. The other Republicans had all previously expressed criticism of Trump’s conduct on January 6 and had previously voted to allow the trial to go forward.
Explaining his vote to reporters, Cassidy cited the “disorganized, random” presentation of Trump’s lawyers as a factor. “The issue at hand: is it constitutional to impeach a president who’s left office?” he observed. “And the House managers made a compelling, cogent case, and the president’s team did not.”
It’s likely that most, if not all, of the 44 Republicans who voted in support of Trump, would agree with Cassidy about the superior presentation of the House managers. Even so hard right a figure as Ted Cruz admitted, “I don’t think the [Trump] lawyers did the most effective job.” Lindsey Graham also said he wasn’t sure what Trump’s lawyers were getting at. But Graham added that, aside from Cassidy, “nobody’s mind was changed one way or the other.”
What this means is that for most Republicans partisan affiliation has triumphed over every other consideration. The House mangers could make the most effective case possible, but the vast majority of Republicans simply aren’t willing to listen.
This is the parliamentary counterpart to Trump’s notorious boast that he could shoot someone on Fifth Avenue and not lose any voters. Senate Republicans are saying that they will tolerate almost any act of a GOP president. If so, then the whole impeachment mechanism of the constitution is moot, at least in terms of punishing Republicans.
Trump certainly deserves to be convicted and barred from ever holding federal office. But America’s problems go far beyond Trump. One of the two major parties has effectively abandoned the field of rational debate. If so, America is facing an intractable democratic crisis.