The Republican defense of Donald Trump in his second Senate impeachment trial appears to hinge on two faulty arguments -- that exhorting his mob to go to the Capitol and fight was simply an exercise in free speech and that he can't be impeached because he's already out of office.
There will be a week's worth of proceedings while Trump's legal team pursues these arguments, attempting to bolster them with references to the Constitution and accusing Democrats of being political opportunists. Both of those arguments will be shown to be faulty, but most likely to no avail.
Today, as the Senate trial opened, Trump attorney David Schoen accused Democrats of exercising “pure, raw, misguided partisanship” to pursue Trump's conviction, and warned that it will make the nation even more divided than it already is -- thanks to Trump.
“This trial will tear this country apart, perhaps like we have only seen once before in our history,” Schoen said, referring to the Civil War.
Should that happen, it will be Trump's fault, not the Democrats. It is Trump's actions that were responsible for the attempted coup at the Capitol, no-one else's.
We can expect House of Representative impeachment managers to shred Trump's defense arguments to bits as they remind Senators of the horror of the January 6 incursion at the Capitol, which sent them hiding from the angry mob and resulted in five deaths directly and two more after the fact.
A taste of what's ahead came today when the House lead impeachment manager, Rep. Jamie Raskin (D-MD), presented a graphic video (above) showing Trump urging the mob to go to the Capitol and then the violent attack, which temporarily delayed certification of Joe Biden's election.
But, when it is all over and the roll is called as the trial concludes, Sen. Lindsey Graham (R-SC) will likely be right. There will be insufficient Republican votes to convict and Trump will be acquitted, left free to run for the presidency four years hence, should he not be in prison.
So, in their determination to hang onto power, most Republican senators will simply look the other way, vote no, and that will be that.
"Let's just move on," they will say as they slink back home and hope that somehow America forgets their failure to protect our democracy.
The arguments of Trump's legal team that the Constitution guarantees free speech is certainly accurate. But that does not mean the Constitution protects a president who encourages people whom he has effectively brainwashed over four years when he whips them into a violent frenzy on his behalf.
Free speech cannot protect against criminal actions that resulted in the kind of mayhem that we saw on January 6 in Washington, DC. Instead, Trump should be criminally liable for doing that.
No doubt, the House impeachment managers will make that case effectively as the Senate trial moves forward. No doubt they will demonstrate how Trump laid the groundwork over his four years in office, using his platform as president to create the us-against-them mentality among his faithful and convincing them that only fraud could defeat him at the polls. He even convinced them that he was sent to the White House by God on High.
Trump created the embers, then repeatedly fanned the flames until on January 6 they exploded with fury as the mob attacked Congress, intent on stopping the constitutional process of finalizing Biden's election. His so-called "patriots" came to Washington from all over, saying they were summoned by Trump to restore him to the presidency.
The January Exception
The Trump defense team's second contention, that it's unconstitutional to impeach 45 since he's no longer president and the purpose of impeachment is to get him out of office, also will be vigorously defended by the House impeachment managers.
They'll use all sorts of constitutional arguments and, as they did today, they'll point out that there is no "January exception" to impeachment -- in other words, a president cannot conduct an impeachable offense in his last weeks in office and get away with it because there's not enough time left to impeach.
That makes no sense from any standpoint.
But they must not forget one other important fact. The reason the Senate trial is occurring after Trump has left office is because then Senate Majority Leader Mitch McConnell (R-KY) refused to allow it to take place before January 20, when Trump officially left office.
It was a shrewd, typical McConnell action. By refusing to call the Senate into session for a trial, wily old Mitch created the basis for Trump's argument that he can't be impeached because he's already gone.
Today, Schoen claimed that doing so, and then following up with a prohibition against Trump ever holding public office again, would be a violation of his rights and a "denial of the right to vote", presumably for his supporters whom he assumes would vote for him again.
That's a specious argument, to say the least, and an ironic one since it was Trump and the Republicans who made every effort to limit voting opportunities for Americans in the midst of the coronavirus pandemic, when millions of thinking people chose to vote by mail, or early, so they could avoid standing in super-spreader voting lines on election day.
For Trump's team to use "denial of the right to vote" as an argument on behalf of Trump is preposterous.
There was also a warning from Schoen and lead defense attorney Bruce Castor Jr. that Democrats may reap what they sow in this impeachment trial, should they succeed in impeaching someone who is no longer in office.
Castor said that perhaps one day an attractive, effective candidate who once served in high public office may be put forward by the Democrats when the Republicans are in power, and to destroy him, impeachment proceedings could be initiated, even long after the fact.
And Schoen echoed that argument, arguing that "every civil officer is at risk" if an opposing political group believes they deserve to be "cancelled."
Those arguments are ridiculous. Trump was impeached by the House before he left office. The fact that the Senate trial is being held after he has gone is immaterial. He did what he did when he did it.
Crying fraud for weeks after the election, launching failed court case after court case, tweeting and whining and threatening over and over again, Trump, himself, attempted to fraudulently retain power with a violent overthrow of our election.
He must be held accountable.