A Twenty-First Century Scopes Trial
Donald Trump has always been his own worst enemy. The most damaging wounds to his political career have all proceeded from self-inflicted incidents: firing Jim Comey, releasing the Zelenskyy transcript, and above all, promoting the Big Lie of the election that was supposedly “stolen” from him.
But the own goal of all time was the January 6 insurrection.
Imagine if he had not fomented that violent attempt to overturn the election and murder various federal officials. He would be in an infinitely stronger position right now, to say the least, and perhaps even poised to run again in 2024.
Instead? Not so much.
I realize that others suffered far more from the events of that day, including the people who were murdered, and American democracy itself. And he may yet survive this, politically, and even rise again to menace the republic — indeed, that is one of the very things at stake in this trial. Own goal or no, his chokehold on the Republican Party is currently very much in evidence, given that the Senate is all but sure to acquit him.
But history’s judgment has already begun, and the trial is a watershed in that process, and all the shameless Republican rank-closing in the world will not change that.
That has surprised me. As important as impeachment is on principle, I somehow expected this trial to be more or less a formality. Knowing that the craven Republican caucus will surely block his conviction, the point of the trial seemed to be to draw a line in the sand — to fall back on Gulf war tropes — to say that such behavior cannot be allowed to stand, even if the GOP is perfectly fine with it. I did not expect the trial to be such a powerful indictment defining Trump’s shameful legacy, or to reshape political dialogue in the US going forward, which it is now clear that it is doing.
Position #31
The Republican position (check your kama sutra) is that Donald Trump gave one little speech at a rally, said nothing untoward, and then a bunch of folks spontaneously got out of hand just by sheer coincidence. If some of them came to that rally already prepared for violence, well, that’s all the more proof that it had nothing to do with what Trump said that day.
This is what the members of the GOP would have us believe, though most of them don’t believe it themselves, desperate as they are to convince us that they do.
That fairy tale was always ridiculous on its face. But this past week, the House impeachment managers obliterated it for all time, in the process powerfully defining for all America — and for posterity — the chilling truth of what really happened on January 6, 2021. The counternarrative will continue to persist in the swamps of right wing media, (which includes four million Fox viewers nightly). This is a party where gaslighting has become not just a technique but the entirety of its ideology. But for the rational world and the judgment of history, the facts have now been dramatically established.
Shall we recap, briefly? Let’s just begin with the day’s events, setting aside for now all that led up to it.
Trump chose the date for the rally, taking over an event that had been originally set for four days earlier by its organizers, a group called Women for America First — a legally very significant fact in its own right. He and his White House team were intimately involved in its planning, right down to choosing the speakers, setting the order of events, and even selecting the music. Trump promoted it heavily, for weeks, including his famous tweet “be there, will be wild.” His two adult sons spoke at the rally, as did their wives or girlfriends, and his personal lawyer Mr. Giuliani (who exhorted the crowd to engage in “trial by combat”). Trump himself spoke in the fiery language of political rabblerousing and incitement to violence, familiar to anyone with brainwave activity, egging the crowd on and using the words “fight” or “fightIng” 20 times — “peacefully” only once. (Or is this another case where we’re supposed to take him seriously but not literally….or is it the other way around? I can never remember.) In any event, video of the crowd’s reaction makes it clear how much this galvanized them.
Needless to say, Trump has a long tradition of encouraging physical violence, and has celebrated and defended it over and over, from Charlottesville, to the “Liberate” rallies and the attempted kidnapping of Gretchen Whitmer, to running a Biden campaign bus off the road. Trump had seen his supporters engage in violence before, and thrilled to it, and he knew he could get them to do it again. Online chatter from right wing extremists shows the same thing, and the House managers keyed the rise in discussions of violence to precise moments in Trump’s speech on the Ellipse.
Of crucial legal significance, the rallygoers had no permit to march to the Capitol; that was a plan Trump himself put in their collective head in knowing violation of the rules, and they did so at his urging. (Perhaps the Senate will convict him holding a march without a permit — $25 fine.) After all, there was no event planned at the Capitol to which they would go; their only purpose there would be to “stop the steal,” which had been the focus of his remarks.
Despite telling the crowd that “I’ll be there with you,” Trump watched the events unfold on TV from the White House, where he was reported to have been delighted at the violence, and confused why his aides didn’t think it was great that these people were fighting so hard for him.
The video of the attack that the House managers showed — much of it never before seen, from Capitol surveillance cameras — was beyond chilling. Several officials, including Mike Pence, Nancy Pelosi, Mitt Romney, and Chuck Schumer — came within moments of being captured by the mob, and we can be confident what grisly fate awaited them had that happened. We can see the absolute viciousness and bloodlust of the insurrectionists, who killed a police officer by smashing his head with a fire extinguisher, savagely beat others with hockey sticks, crutches, their own shields, and even flagpoles bearing the Stars & Stripes (a bit on the nose, don’t you think?), all the while calling the cops “traitors” and chanting “USA! USA!” (ruining the 1980 Olympics for me) and “Fuck you, police” and “Fuck the blue!”
When NWA said that, they were vilified, but at least they weren’t simultaneously claiming to be members of the Police Athletic League.
In one video that serves as a companion to the Stars & Stripes moment, rioters can be seen viciously beating police officers while waving a Blue Lives Matter flag. (But I guess that jibes with Lindsey Graham, who screamed at Capitol Police officers during the siege for allowing the building to be breached, and even now continues to blame them for not doing a better job of protecting him.)
Those battle cries, along with “Hang Mike Pence!,” will live in infamy, but to my ears, the one that was most chilling, and most telling, was the one heard over and over throughout the day, the one that went: “Fight for Trump! Fight for Trump! Fight for Trump!”
Kinda says it all.
To that point, the rioters themselves are powerful witnesses for Trump’s culpability, so overt and self-acknowledged is their slavish devotion to the orders issued by their Dear Leader.
Multiple insurrectionists, many of them now under arrest, have proudly proclaimed that they did what they did because Trump told them to. Some of that testimony took place on camera during the riot. One rioter screamed at a cop, “There are a million of us, and we are listening to Trump!” Another can be heard shouting at the police, “We were invited by The President of the United States!” The rioters even read a Trump tweet verbatim through a bullhorn….and not just any tweet, but one Trump sent attacking Pence as a coward right after being told the Vice President and his family were being evacuated by the Secret Service to save them from the mob that was hunting Pence down in order to lynch him. In other words, Trump launched an attack on his own VP at the exact moment when Pence was in maximum danger, and Trump knew it.
The mind reels.
Even after the horrific scope of the situation had become clear, Trump had to be pressured into making a statement telling the rioters to stand down, and it took hours until he finally, grudgingly agreed to do so (kind of). Similarly, he had to be strongarmed into including any appeal for calm in that videotaped message, which — incredibly — began with a repetition of the claim that the election had been stolen and an affirmation of the rightness of his followers’ fury, ad-libbing the infamous lines “You’re very special,” and “We love you.”
(As calls for calm go, it wasn’t going into any textbooks. By contrast, House manager Rep. Joaquin Castro of Texas showed samples of Trump’s all-caps tweets like STOP THE STEAL and STOP THE COUNT, noting that that is what it looks like when Trump genuinely tells someone to stop doing something.)
Even the fact that the mob eventually did begin to disperse when Trump finally spoke, albeit weakly, speaks to their fealty to him and his control over them.
That evening, long after it was clear just how horrific the day’s events had been, Trump tweeted this:
These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love and in peace. Remember this day forever!
Confronted about his behavior a few days later, Trump said his speech at the rally was “totally appropriate.”
Worst Heist Movie Ever
Trump’s own former advisors H.R. McMaster, John Bolton, John Kelly, Jim Mattis, and even Mick Mulvaney and Bill Barr (Bill Barr!) have laid the blame for January 6th at his feet. (Libtards!) Even McConnell did so in its immediate aftermath, though he is now hedging his bets, as did Kevin McCarthy before Trump reminded him who his daddy was.
But of course Trump’s culpability is not limited only to what happened on the 24 hours of January 6th. If anything, his actions leading up to that date are even more damning.
As the former US Attorney Chuck Rosenberg noted, the story of a bank robbery is not just the story of the moment the gun is pointed at the teller. It’s the story of the planning, the recruiting of the crew, the reconnaissance of the target, the purchase of the getaway car, the acquisition of the guns, the construction of the alibis, the rehearsals, the stickup itself of course, and then also the escape, the dividing of the loot, the laundering of the cash, and on and on and on.
So too with this violent attempt at a self-coup.
Let’s state for the record what we all know: for months, both before and after November 3rd, Trump spread the vicious Big Lie that the election was rigged and that it was being “stolen” from him. This was the animating force behind the entire “stop the steal” movement that culminated with invasion of the Capitol, and — make no mistake — continues even now as a low-boiling domestic insurgency that regards Trump as still the rightful president-in-exile.
That alone is impeachable, irrespective of any violence.
The Capitol insurrection was no spontaneous event, a rally that simply got out of hand, with a few rogue criminals operating independent of White House guidance. It was a deliberately organized attack by a desperate defeated president who had run out of other options in his quest to hang on to power, and turned finally to outright armed sedition. This rally was held on January 6th for a very specific reason: because that was the day that Congress was to certify the Electoral College vote, and Trump’s last chance to overturn the election, short of declaring martial law. (Which his disgraced national security adviser and convicted felon Lieutenant General [Ret.] Michael Flynn was urging him to do. Trump reportedly considered making Flynn his chief of staff and/or director of the FBI in the closing weeks of his term.)
Writing in Slate, William Saletan asks the pertinent question that Trump’s lawyers must, if this were a proper trial, without a foreordained outcome, be forced to answer: “If Trump wasn’t directing the mob to attack or threaten Congress, what was he telling it to do?”
(Along those same lines, my friend Scott Matthews points out that the focus on Trump’s culpability for inciting violence is understandable, but a bit of a red herring. Even absent violence, his mere — mere! — rhetorical attacks on the integrity of the election and the peaceful transfer of power have done grievous harm and are deserving of impeachment and banning from future office-holding.)
Meanwhile, significantly more evidence has also come out about pre-coordination for the insurrection.
Trump’s purge of DOD and US IC officials in December, for example, suddenly makes a lot more sense. One of the puppets installed in that purge, Acting SecDef Chris Miller, issued a preemptive order on January 5th limiting National Guard intervention in the next day’s events, strongly suggesting that the Trump administration knew that there was going to be violence, and blocking in advance federal authorities’ ability to contain it. (Steve Bannon and others are on record with statements suggesting that they too knew there would be violence, and encouraging it.)
On that same day, January 5th, numerous Congressmembers are credibly alleged to have given private tours to individuals who would storm the Capitol the next day, tours that functioned as reconnaissance. Small but significant numbers of the insurrectionists did seem to have alarmingly suspicious and specific knowledge of the layout of the notoriously confusing Capitol building (and even maps), including the location of the offices of their key targets, like Pelosi and Alexandria Ocasio-Cortez, who recently revealed just how close she came to being murdered as well.
We also know now that Michael Flynn’s brother Charles, an active duty lieutenant general and the Deputy Chief of Staff for Operations for the whole US Army, was in the room at the Pentagon when the decisions were being made not to send the NG to the scene of the insurrection. Not that anyone is saying he shares his brother’s views, and he would rightly be involved in that decision-making process in his job as DCSOPS, but it’s not a great look, especially since the Army initially denied he was there. (He has since been given a fourth star and a high-profile command.)
On the follow-the-money front, the Trump campaign gave $3.5 million to the organizers of the rally. (For that matter, a great deal of Super PAC money went to the members of Congress like Josh Hawley and Ted Cruz who were trying to decertify the Electoral College vote, not to mention Trump himself.)
Meanwhile, the FBI reports that it has found “evidence detailing coordination of an assault. But I don’t need an FBI investigation to tell you that the people who arrived with Kevlar helmets and body armor and zip ties and tasers had more on their mind than just a polite expression of their First Amendment right to peaceful dissent. And I don’t need a weatherman to tell me that they did so because they’d been given the go sign from the highest levels that their behavior was welcome.
See No Evil
In short, the only people who can see Trump’s words and actions and still refuse to hold him accountable — at least politically and morally, if not legally — are those engaged in willful denial. Unfortunately, that group includes some forty-odd Republican US Senators. Witness the highly performative expressions of outrage by Graham, Hawley, Rick Scott, et al in attacking the House managers for having the temerity even to bring this case.
Needless to say, it’s hard to imagine that they would be so forgiving if it was a “Democrat” president who had done this.
As many have noted, the Senators are not only the jurors in this trial but also among the victims of the crime, witnesses to it, and in some cases, accomplices in its commission. Surreally, the trial is taking place in the crime scene itself; some of the Senators are sitting in the very desks that violent insurrectionists commandeered five short weeks ago. Yet none of that seems to have done anything at all to penetrate the all-powerful bubble of GOP venality.
Charlie Sykes summarized matters nicely in The Bulwark:
Donald Trump (1) stoked the fire by lying about the election (2) summoned the mob, (3) incited the assault on the Capitol, (4) failed to condemn it even once, (5) tweeted attacks on VP Mike Pence even as he sheltered in place, (6) was derelict in his duty, and (7) afterward, celebrated the insurrection.
This ought to test the capacity of even the most hardened Trumpist to deny the enormity of Trump’s conduct. But, don’t worry, they will find a way.
“Both sides” are just as partisan, you say? We don’t know, because no US president has ever done anything even remotely like this before. But even if that were so, it of course does not justify excusing Trump or anyone else now.
As Chris Truax writes, also in The Bulwark:
As a matter of principle, Trump should be convicted. He spent two months telling flat-out lies designed to undermine American democracy and keep him in power even though he had lost the election. He demanded that the vice president of the United States violate the Constitution. When Mike Pence refused, he ordered a violent mob to march on the US Capitol, which they did while chanting “Hang Mike Pence!”
But that argument falls apart right at the top, with the words “As a matter of principle.”
We’re talking about Republicans, folks.
The behavior of Senate Republicans is setting a new low for moral cowardice and dereliction of duty. I wrote last weekthat I looked forward to the spectacle of these venal bastards gazing at their shoes and cringing when presented with video evidence of what Trump wrought. It turned out not to be that much fun….but it was certainly a stark display of history’s verdict being rendered in real time.
Truax again:
The trial has already achieved one of its major objectives by creating an indelible historical record of the events of January 6. The “timeline” video introduced into evidence on Tuesday was a stunning, damning record of the events of the day as they unfolded. That 14-minute video will come to define the Trump administration for future generations. A hundred years from now, children will study it in school.
Of course, for that very reason, numerous Republicans chose not even to watch it. “During the video of the insurrection, Trump supporters Senators Marco Rubio (R-FL) and Tom Cotton (R-AR) looked at papers on their desks, Rick Scott (R-FL) looked at papers on his lap, and Rand Paul (R-KY) doodled.”
And Josh Hawley sat with his feet up, ignoring the trial and working on his “Magnum PI” fan fiction. I thought my opinion of Hawley was already lower than the Marianas Trench. Then I read this and discovered, hey whaddaya know, it can actually sink even lower. (You might recall that the right wing wanted Obama impeached, or worse, for putting his feet up in the Oval Office. One man’s nonchalance is another man’s uppity, I guess.)
Anne Applebaum tweeted:
(The mob was) looking for Pence, and shouting Pelosi’s name. They were carrying weapons. We were minutes away from an even bigger tragedy. And the Republican Senate still can’t bring itself to condemn the man who inspired them, incited them, told them they were patriots.
D-Fence
So what of Donald’s actual legal defense? Paul Begala nailed it during the opening statements when he tweeted, “Trump is apparently being represented by the law firm of Meandering & Furious.” It’s funny because it’s true, as comedians like to say. (Not.) What’s really infuriating is that Trump has bozos like this as his legal team and yet he will still get acquitted.
But as Amy Davidson Sorkin wrote in The New Yorker, “what looks like incompetence may be better understood as contempt for the process.”
In response to the chilling videos of violence at the Capitol, Republicans have already deployed their defense: “Yes, that was horrible, but it was just the actions of a few criminals. Nothing to do with Donald.” This claim flies in the face of everything we’ve just discussed, but that is the flag they are planting.
This argument is essentially a First Amendment one, which I’m sure we’ll hear more of when Trump’s team has its sixteen hours beginning today. But the First Amendment defense is a particularly dishonest one.
In a contentious appearance on MSNBC, the vile Robert Ray, Ken Starr’s successor in the Whitewater investigation, who was also on Trump legal team for his first impeachment, was one of many right wing lawyers sneering at the idea that Trump’s words constitute “incitement to violence” by the standard of a criminal trial. But Ray and his ilk all know very well that an impeachment trial is not a criminal proceeding but a political one, and the same First Amendment protections don’t apply. (Ray’s main point, however, which he kept repeating over and over, was that none of this matters because there won’t be enough votes to convict regardless. But he meant it as a boast, not a disgrace, which is what it is.)
Ironically, the case the House managers laid out probably does meet the standard for a criminal incitement, but that doesn’t matter either, as stated bluntly in an open letter from 144 constitutional law and free speech scholars ahead of the trial, as reported in New York Times:
(T)he First Amendment, which is meant to protect citizens from the government limiting their free speech and other rights, has no real place in an impeachment trial. Senators are not determining whether Mr. Trump’s conduct was criminal, but whether it sufficiently violated his oath of office to warrant conviction and potential disqualification from holding future office.
Among those 144 lawyers was legendary constitutional law attorney Floyd Abrams, who noted that there are lots of things that are protected speech that the President of the United States could legally say that would still be impeachable offenses. A sampling:
“I think it would be great if China invaded and occupied the US and I’m going to work to make that happen.”
“Black people shouldn’t have the same rights as White people.”
“Anyone who wants a pardon should make an appointment to see Corey Lewandowski.”
All those things are betrayals of the presidential oath that would be high crimes and misdemeanors justifying impeachment and removal. So is a president telling millions of his slavish followers that the election was rigged.
Steve Coll writes in the New Yorker:
There is no doubt that Trump’s abuse of office — his lies about election fraud, his strong-arming of state election officials including Georgia’s Secretary of State Brad Raffensperger, his advocacy for unconstitutional interventions in the Electoral College, and, finally, his incitement of protesters to march on the Capitol — warrant impeachment and conviction. The House prosecution brief prominently quotes Republican Representative Liz Cheney’s emphatic judgment: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
Then there are the specious Republican claims about how we as a nation ought to “move on” and forget about January 6th, and oh yes, Trump’s responsibility for it, and their own. My favorite was Sen. Ron Johnson of Wisconsin, scolding Democrats for wasting the Senate’s time when it should be focusing on COVID relief…..after Senate Republicans sat on House Democrats’ proposals for COVID relief for months. Which he opposes in any case.
We’ve dismantled these cries previously in this blog, but they’re like the unkillable Michael Meyers in those Halloweenmovies.
In live commentary on the trial’s opening statements, Alan Rappeport of the Washington Post noted that Trump lawyer David Schoen argued “that the impeachment proceedings — rather than the insurrection — weaken America’s image around the world.” The WaPo’s Katie Benner followed up, seizing on Schoen’s claim that “the trial “will tear this country apart” and “bring us to the brink of civil war,” noting that he “does not address the idea that a violent attack on Congress in order to undo an election could have a deleterious impact on the nation.”
But the Republican abomination goes beyond these rhetorical ploys and into overt, flagrant perversion of justice. Cruz, Graham, and Mike Lee of Utah openly met with Trump’s defense team on Thursday to discuss strategy — you know, the way jurors always coordinate with the defense in a trial? (Much the same way Mitch McConnell brazenly told the press he was coordinating with the White House during Trump’s first impeachment.) It goes without saying that they ought to be summarily disqualified and removed as jurors, had we not become accustomed to such rank contempt for proper jurisprudence, even in a purely political procedure.
History Has Its Eye on Us
As I write this, Trump’s legal team (such as it is) is about to begin the detailed presentation of its defense, one that promises to be a festival of lies, deceit, and misdirection building on their specious opening argument and taking the aforementioned gaslighting to a whole new level.
The infuriating part, of course, as Robert Ray boasted, is that it almost certainly won’t matter, as a majority of Republican Senators have already made it clear that they are not impartial jurors as demanded by their oath and are going to acquit no matter what. In fact, they have been shameless in flaunting their contempt for the very process.
But we should not be surprised. As Hillary Clinton tweeted, “If Senate Republicans fail to convict Donald Trump, it won’t be because the facts were with him or his lawyers mounted a competent defense. It will be because the jury includes his co-conspirators.”
So with little hope of conviction (and the practical benefits of Trump being disqualified from holding office again), Democrats are instead using the trial to disqualify him by a different means. As Professor Melissa Murray of NYU law school notes, the Democrats are cleverly making their case directly to the American people that Trump is unfit to hold office, irrespective of an acquittal…..and that the party that is defending him is unworthy of the support of any thinking American with a shred of respect for the rule of law.
Therefore, as Truax notes, “Trump isn’t on trial — the Republican Party is.”
The pundits are constantly reminding us that impeachment is a political process, not a legal one. (I got it already.) That is the unspoken crux of Republican willingness to acquit Trump despite the manifest evidence of his guilt. So it’s gratifying to see Democrats approaching the process with the same political calculations.
The putative winner of a trial is not always the actual winner. No one thinks of the Scopes trial and remembers what a great defense of creationism William Jennings Bryan made, even though he “won.” Does OJ walk the streets a national hero and appear on our TV screens in ads for Hertz and Dingo and Schick and Foster Grant after being “exonerated” in a LA courtroom?
Not so much.
So Trump’s legacy in not in question. But this is not merely a matter of history; it is very much an ongoing crisis. We dodged a bullet (so to speak) in getting Trump out of office. If we don’t hold him accountable for commanding an army of violent thugs in an effort to overturn an election, and we don’t bar him from running again, we may find ourselves in a situation where he is President again, and feels utterly unshackled in using those forces and other forms of violence to stay there for life.
And we won’t be able to act surprised.
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More to come next week…..
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