I’ve been asked why I haven’t weighed in on the current impeachment hearing. Hell, I’m barely following it. We all know Trump is guilty of inciting an insurrection. We all know that the Senate won’t find him guilty.
But fine. Here’s my two cents…
This snippet from the opening statement of Trump’s defense team is worth noting up front:
“This trial will tear this country apart, perhaps like we’ve only seen once before in our history,”
I question the legal strategy behind defending your client against an incitement to insurrection by threatening an insurrection. But, hey, that’s just me.
Based on the brief filed by Trump’s defense team, their planned arguments against conviction can be summarized by three positions statements:
- Position: Trump can’t be impeached because he is no longer in office.
- Facts: The Constitution says “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”.
- Conclusion: If the only result of an impeachment was removal from office, this argument might be valid. However, since there’s an additional possible consequence, this argument is crap.
- Position: Trump was merely exercising his First Amendment right to free speech.
- Facts: A Supreme Court opinion written in 1919 by Oliver Wendell Holmes famously ruled that free speech did not extend to “shouting fire in a theatre and causing a panic.” The Court clarified that ruling in 1969 to explicitly ban such speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
- Conclusion: Free speech has limits and this argument is crap.
- Position: Trump had no intention of interfering with the counting of Electoral votes.
- Facts: Really? Just roll tape.
- Conclusion: Trump made it quite clear what he wanted and this argument is crap.
In short, there is no sane defense. On the other hand, however, none of the above matters. Not even a little bit. As I posted when we went through this the first time:
The problem is that the impeachment of a President isn’t a legal issue. It’s political. … Senators are bound by no laws and can cast their votes as they individually deem fit with no ramifications whatsoever. There is no judge that can direct them nor override even an obviously incorrect verdict. There is no appeal.
GOP Senators are perfectly free to just say: “I’m afraid that Trump will get mad at me and I won’t get re-elected if I vote to convict him.”
That is their Constitutional – albeit balls-free – prerogative.
I only wish they’d be honest about it.