Michael McDowell: Second impeachment will strengthen Trump

Latitude in standard of proof bodes ill for Senate conviction of former US president

Razor wire tops the eight-foot ‘non-scalable’ fence that surrounds the US Capitol in Washington, DC. Photograph: Chip Somodevilla/Getty Images

Razor wire tops the eight-foot ‘non-scalable’ fence that surrounds the US Capitol in Washington, DC. Photograph: Chip Somodevilla/Getty Images

 

The House of Representatives put forward an article of impeachment against Donald Trump and 10 Republicans crossed the floor to impeach the president. A bare majority sufficed. The constitution of the United States provides that the Senate conducts a trial “on oath or affirmation” and a two-thirds majority is required to convict him.

Achieving such a majority requires 17 Republican senators to vote for conviction. The constitution provides that the role of the Senate “shall not extend further” than removal from office and disqualification to hold and enjoy “any office of honor, trust or profit under the United States”. A person so convicted remains liable to separate criminal trial and punishment.

The question now is whether the Democratic majority in the House has acted wisely in proceeding with the impeachment. On one hand, it is argued that a failure to impeach would be inexcusable in the light of Trump’s shocking misconduct in seeking to overthrow the result of the election. On the other, it can be forcibly argued that the Democrats will succeed only in unifying Republican senators against impeachment, that the process is doomed to failure and will strengthen Trump.

If, as appears probable, the process fails, will this strengthen or weaken Trump’s grip on the Republican party? Will he be able to argue that he stands acquitted by due process if only a slight majority of senators favours conviction?

Disqualification

The only practical purpose of impeachment after the election of President Joe Biden could be to disqualify Trump from holding future office. Failure to impeach him may well be portrayed as a rejection of the proposition that he should be so disqualified, and perversely a preservation of eligibility for re-election.

It is highly likely that individual Republican senators will come under huge pressure from Trump supporters across the Republican-leaning states to unite against the impeachment process.

Even senators such as minority leader Mitch McConnell who have verbally indicated that they hold Trump partly responsible for what happened on January 6th will be put under immense pressure simply to distinguish between moral responsibility (which is very obvious) and legal responsibility (which turns on a minute examination of his words and actions up to and including the storming of the Capitol).

The impeachment article alleges that Trump “repeatedly issued false statements” that the election results were the subject of widespread fraud and should not be accepted.

It recites Trump telling the crowd at the Ellipse on January 6th: “We won this election, and we won it by a landslide.” Ignoring the fact that Trump actually urged the crowd to “peacefully and patriotically make your voices heard”, it recites that he encouraged “lawless action” by stating to the crowd: “If you don’t fight like hell you’re not going to have a country any more.”

Incitement

The legal question for the Senate to try is not whether he inflamed the crowd (which he certainly did) but whether he “incited” the storming of the Capitol with the resultant deaths, the menacing of members of Congress, the vice-president and other personnel, or other “violent, deadly, destructive and seditious acts”.

Depending on the case law applicable, the verdict may turn on whether he is found to have encouraged those acts by telling his supporters that unless they “stopped the steal” by fighting “like hell” they would lose the country to a fraud. I doubt whether Trump’s personal lawyer Rudy Giuliani’s reference to “trial by combat” can be legally laid at Trump’s door.

The article also cites the phone call of January 2nd during which Trump threatening the Georgia secretary of state Brad Raffensperger with prosecution if he failed to find enough votes to overturn the election results in Georgia.

It is alleged that he threatened the integrity of the democratic system and interfered with the peaceful transition of power and imperilled the legislature thereby betraying his trust “to the manifest injury of the people of the United States”. It goes on to allege that Trump warrants disqualification from future office.

Must the matter be decided beyond reasonable doubt? It seems the criminal standard of proof is not applicable and, remarkably, that each senator can decide on his or her personal standard of proof. So Republicans may vote against on a reasonable doubt basis, while Democrats may vote to convict on a lesser standard. That latitude bodes ill for a conviction.

In the end it will be decided politically. “Fail to plan; plan to fail” is a well-known maxim. But are the Democrats not planning to fail by forcing the Republicans to unite against impeachment? It is hard to see how the process will not strengthen Trump’s hand. It is hard to see how moderate Republicans will be assisted in bringing their party back towards the centre. Can that be intended?

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