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Here we are again, impeaching Donald Trump. The former president—the first in history to have been impeached twice—has only been charged with a single article: high crimes and misdemeanors for inciting an insurrection at the Capitol. When the House impeachment managers begin to make their case today, they’re going to attempt to prove that Trump’s words and actions on and leading up to the events on Jan. 6 directly influenced the mob that stormed the building in an attempt to stop Joe Biden’s election certification. The House’s 80-page brief points to social media video, police body cam footage, and Trump’s own words to paint a picture of how the Capitol was breached. Then, it’s up to the politicians in the Senate, who all lived through the same traumatic events but have very different ideas about what those events mean. I spoke with Slate’s own Dahlia Lithwick on Tuesday’s episode of What Next, ahead of the trial, to get a sense of why these impeachment proceedings can’t possibly meet our usual standards of “fairness” and why we’ll be watching a real-time Rorschach test for our democracy. Our conversation has been edited and condensed for clarity.
Mary Harris: Last month, you interviewed the lawyer who helped lead the House impeachment proceedings the first time around, Daniel Goldman, to see how he saw this impeachment sequel.
Dahlia Lithwick: He said it’s just not a legal proceeding. Goldman has years of law history, having prevailed in big mob trials and white-collar conspiracy trials. He went into this proceeding thinking it was a legal proceeding and walked away realizing it was politics all the way down. The thing he said that really has stuck with me is that if impeachment were a legal proceeding, half of the people who are jurors—the senators—would have to be excluded, right? They were either eyewitnesses or victims. Some of them were implicated. If this were a trial on opening day, you would go to the judge say, strike this juror, this person can’t be here,, this person has a conflict of interest. None of that is going to happen!
The website Just Security put together a video that shows the direct relationship between Trump’s words and the crowd’s actions, beginning with a kind of call and response as the president spoke at the Ellipse. When Trump says, “We’re going to walk down to the Capitol,” those watching begin echoing him.
You get the sense that the mob is reacting to line after line, like he literally is fomenting this violent response. I think this video goes a long way to saying that speech alone elicited from the rioters some kind of sense that they were authorized to go rioting.
We’ve seen in legal documents many of the rioters saying the reason they were there was because of the president. It seems to me like if I’m an impeachment manager, that’s more evidence for me to present and demonstrate a causal relationship here between what the president had been saying for a number of weeks, and especially on Jan. 6, itself and what happened later that day.
That’s right. But then the defense—Republicans—are going to try to raise that this riot was weeks, if not months, in the making, that it was well-planned and well-financed, that the more we learn about that, the more it lets the president off the hook.
They’ll say this was going on with or without him.
Right. They’ll say nothing he did or said on the afternoon of Jan. 6 in a speech was going to trigger the violence, because the rioters already came intent on doing violence. But when you read those pleadings you mentioned, that’s completely debunked, because what they’re saying is: I answered the call. He was telling us in October that if he lost, it would be because the election was stolen. And he started saying in December, everybody come to the Capitol on Jan. 6 and get wild.
The Trump team’s main defense actually doesn’t have much to do about what the former president may or may not have incited. It’s all about process.
A lot of Senate Republicans have latched themselves to the purely arcane argument that you cannot convict and impeach a former president. The lame-duck analysis that was debunked this week by no less a person than Chuck Cooper, who has been a prominent Republican lawyer even during the Trump administration. He wrote in the Wall Street Journal that this argument is garbage. And I think we can agree: The bulk of the scholarship suggests it is garbage. We know that there has been an impeachment for the removed secretary of the treasury. So the theory is not very well supported, but it’s a sufficiently abstract argument that it gets you off the hook from dealing with all the blood and guts and feces.
I was fascinated by the attempt by Sen. Rand Paul last week to force this issue, to do a pretty forced a vote on a procedural vote even in advance of the Senate trial, getting people on the record saying, We shouldn’t be here, there is no jurisdiction for the Senate to do this, John Roberts is not presiding. There’s no mechanism to try a lame-duck president even if we wanted it. People were probably not surprised but not delighted to see that many, many Republicans were willing to vote with him to just do away with this.
Many people saw that as a sign that there’s no way the Senate will vote to convict.
Right. Slate’s Jim Newell made the really good point that this wasn’t a vote on the merits. And we have certainly seen several Republican senators say they weren’t voting on the merits, that they thought the process might be unconstitutional. What Chuck Cooper’s piece does is give those people a little bit of space to say, “I hadn’t studied the subject. I spent the weekend curled up with the Federalist Papers, and now I understand that this has happened before. That vote represented a procedural point, but it is not reflective of my final views on what the merits are.” So maybe it will peel off a few people
The last time we impeached Trump, Republicans argued we should let the voters decide and that by impeaching him, Dems are taking away voters’ agency. Now that he’s out of office, they say you can’t impeach him because he’s out of office. And it raises this question of, whom can you impeach?
In both cases, I think it’s a way of stepping out of having any agency, any responsibility, and saying, “There’s no place for the Senate in the impeachment process.” And we know from the Constitution that is wrong.
According to a recent AP poll, nearly two-thirds of Americans think Trump bears at least some responsibility for what happened on Jan. 6. An ABC News poll shows 56 percent of Americans want the Senate to convict Trump. So if this process is not so much legal as political, wouldn’t numbers like that have some weight? Wouldn’t that mean a conviction in the Senate would be a foregone conclusion?
It’s a simple “we don’t live in a democracy” problem. By which I simply mean, if you map that polling and the other polling that’s come out this week, it suggests that as a matter of preference, most Americans do think that something went horribly wrong and there should be accountability. But then, map that against gerrymandering, map that against a nonrepresentative and wildly malapportioned Senate, map that against dark money in politics, and all the things that are broken in politics that don’t have anything to do with this trial. It’s really clear that these things have so distorted representative democracy that it doesn’t matter.
So you’re saying that if the Senate doesn’t vote to convict, it actually serves as more proof that our representative democracy is broken?
I think so. Our democracy is so fundamentally malapportioned and nonrepresentative that the general public’s sense—that we saw what we saw, we heard what we heard, and something needs to be done about it—is completely diluted by the way electoral politics works here.
Is there another mechanism after impeachment that that we would turn to?
So many of the pathologies we are seeing play out are reflective of the fact that some sizable proportion, but certainly not a majority of the country, believes truly crazy things that are not rooted in truth or injustice, and somehow they have captured massive parts of democratic governance. And if the measures we’ve been seeing in the past week or two that are being rammed through in the states to further curb voting, to further encourage gerrymandering, to further invite dark money into politics—if all of those things are allowed to continue, this is not the end of something. This is the very earnest continuation of something much worse. The other mechanism is to have a functional representative democracy, and that means fighting very quickly for things like the new voting rights act and Senate reform and court reform and the boring process stuff nobody wants to talk about. If you have a truly maladaptive, dysfunctional democracy that is being rewarded for moving further and further into the land of denialism and blame, the only way to fix that is to make sure that the boring work of protecting voting rights, protecting “one person, one vote,” is done in time for the next election and the elections after that.
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