Last night, the House prosecutors decided to try to call at least one witness, or maybe a bunch of witnesses. This morning, they got the Senate to vote in their favor. Then they backed off. This was not an elegant serious of maneuvers. That said, this is the sort of thing that happens in the heat of a trial.
I don’t want to second guess their tactics, but I do think it’s worth commenting on the big picture. Let’s begin with …
A Little Thought Experiment
Suppose, for the sake of discussion, that Trump had given exactly the same speech he did give on January 6. And further suppose, counterfactually, that the crowd had all marched to the vicinity of the Capitol, yelling, scream, and waving flags, but that no one broke into the Capitol or otherwise violated the law. Could have happened, you know. Not beyond the realm of possibility.
Now, in that circumstance, would anyone be claiming that Trump’s speech incited a riot? Would anyone be trying to parse the finer points of Brandenburg v. Ohio? Would anyone be engaged in legalistic, metaphysical debate about the outer limits of the First Amendment?
No, ladies and germs, the answer to all these questions is no, that would not be happening.
Back to the Real World
But there was a riot. And, while we have a general idea of what Trump was doing at the time of the riot, and what he did, or rather didn’t do, to stop the riot, we most assuredly do not have all the damning details.
Rep. Herrera Beutler’s statement gives us some compelling hearsay testimony, but the thing is by no means nailed down.
My Bottom Line
While I don’t want to quibble with the prosecution’s tactics, I do, on reflection, want to fault them for holding a trial without nailing down the key unresolved point: what was Trump saying and doing while the riot was going on, and who was responsible for finally getting the troops to the Capitol to put an end to the insurrection?
Further to the point, let me quote what Jonathan Chait wrote at 10:30 this morning:
There has always been one small hole in the prosecution’s case for Donald Trump’s second impeachment. Trump encouraged a public demonstration, promised in advance it would be “wild,” instructed his supporters that extraordinary measures were needed to save the republic from his “landslide” election being stolen, and repeatedly urged them to take off the gloves and fight dirtier. But there’s been no evidence that Trump knew beforehand that his supporters would actually break into the Capitol building.
Last night CNN added a key new piece of evidence: In an angry phone call with then-House Majority Leader Kevin McCarthy during the insurrection, Trump refused to call off his supporters, and praised them for their commitment to his cause.
According to CNN, and confirmed by Republican representative Jaime Herrera Beutler, a witness to the call, McCarthy pleaded with the president to make a public statement to end the riot. Trump at first told McCarthy the rioters were “antifa.” (This is in keeping with his habit of privately repeating lines to his supporters that both know are lies, like the way he instructed Michael Cohen to testify “there’s no business with Russia” when both were perfectly aware there had been.) When McCarthy insisted on correcting him, Trump switched to a new line: “Well, Kevin, I guess these people are more upset about the election than you are.”
This is extraordinarily incriminating. Not only was Trump taking sides with the rioters after they had violently sacked the Capitol, he was leveraging the violent threat they posed to pressure McCarthy to work more energetically to defend him.
Indeed, Trump continued his attempts to pressure Republicans to support his attempt to overturn the election results after this call with McCarthy. One of those attempts is known, because he mistakenly called Senator Mike Lee when he meant to reach Senator Tommy Tuberville. Rather than stop the attack, Herrera Beutler writes, “[Trump] and his lawyer were busy making calls to senators who were still in lockdown, seeking their support to further delay the Electoral College certification.”
Yesterday, Michael van der Veen, Trump’s impeachment lawyer, claimed that “at no point” was Trump aware that Mike Pence was in physical danger on January 6. A source close to Pence tells CNN that is false.
Trump created the conditions for his most deranged supporters to commit violence. It was not inevitable that his incendiary rhetoric would lead them to a physical invasion, nor was it inevitable that the invasion would overwhelm the Capitol’s defenses, though he bears responsibility for elevating the risks.
But his behavior afterward is what truly damns him. When the demonstration took a violent turn and the violence overwhelmed law enforcement, Trump had a choice. He could have seen it as a tragic turn of events. Or he could have seen it as a lucky break. He saw it as a lucky break, and set out to use the violent threat as the final effort to overturn the results and install himself in office for a second, unelected term.