The rules of Donald Trump’s impeachment trial, as agreed upon by both Republican and Democratic leaders, allowed for an opening day Tuesday that was largely a law school class about one question: Was it constitutional for the US Senate to vote to convict the president even after he has left office?
The impeachment trial began on Tuesday with 3 1/2 hours of debate on this question and a subsequent vote about whether the Senate should even be allowed to proceed. (In fairness, Trump’s lawyers were so bad arguing this point that reportedly Trump was even screaming at the television.) In the end, the Democratic-controlled Senate voted they could continue. The vote was 56-44, with six Republicans joining Democrats.
The day foreshowed the talking point that Republicans will likely repeat on Wednesday and throughout the proceedings: the trial itself is on trial. To them, the question isn’t whether Trump should be convicted, it is whether he can be convicted.
In this argument, Republicans who support Trump believe they have found something of a loophole that allows them to avoid defending Trump’s actions. Since Trump is out of office, the trial could have put Republican Senators in the spotlight as to where they stand on Trump’s actions in the time between his November loss and the attack on the Capitol. In that, it could be a defining vote not just for their own career and legacies, but also for the future of the Republican Party. But by focusing simply on process arguments Republicans get to at least delay that discussion for another day.
The thing is, these senators do have an answer as to whether Trump played a role in the attack on January 6. After all, they were at the Capitol the very day it occurred. And recall, the attack was meant to disrupt proceedings in the House and Senate chambers.
Immediately after that happened Republicans appeared to be done with Trump. Even Trump’s close friend, Republican Senator Lindsey Graham, wanted more answers. Days later then-Senate Majority Leader Mitch McConnell created political space for his fellow Republicans to consider convicting Trump if only as a way for the Republican Party to move on from Trump’s toxic brand. Trump left the office with the lowest approval rating for a president in memory.
But in the weeks since, it became clear that there just weren’t anything close to the 17 Republican votes needed to join Democrats in making Trump the first president ever convicted by the Senate.
The only question, then, became about how Republicans would find a rhetorical way out of voting to convict without sharply dividing the caucus.
That’s just politics. Perhaps more interesting is that Trump’s own lawyers indicate they’ll (mostly) sidestep the issue of whether Trump is complicit in inciting the attack. In fact, in legal briefs, they largely accept the premise that he may have been, but simply suggest that Trump had a First Amendment right to say what he said.
Of course, the Senate is not a court of law. There will even be a vote on whether to include witnesses. It is, by definition, a political vote.
What should worry Trump is that his actions before and during the attack could be addressed by a real prosecutor and a real court for real criminal charges. As Trump’s lawyers argue, the former president is a private citizen now and not legally protected, as sitting president would be.
It is for that reason that it might end up being unwise legally that Republicans and Trump’s lawyers are taking this approach — even if it is smart politically in the short term.