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GOP’s defenses of Trump lack legal — and moral — foundation

All the potential criminal liability in the world does not relieve Marco Rubio or his colleagues of their duty to ‘do impartial justice according to the Constitution and laws.’

Impeachment managers show new security videos from attack
Impeachment managers showed new security videos from the day of insurrection. (Video via C-SPAN)

Even the most skilled legal practitioner would be hard pressed to rebut the case House impeachment managers made this week connecting Donald Trump’s repeated lies about election fraud to the deadly insurrection that ensued at the Capitol after Trump directed his mob to go there to “stop the steal.”

But that didn’t stop Republican Senator Marco Rubio of Florida from trying.

“The 6 Jan attack on the Capitol was far more dangerous than most realize,” Rubio tweeted as House Democrats presented their case Wednesday, which included never-before-seen footage of armed insurrectionists marauding the halls on a hunt for House Speaker Nancy Pelosi, Vice President Mike Pence, and others. “And we have a criminal justice system in place to address it.”


Security footage shows Senator Romney running from rioters
Security footage played during the impeachment trial shows Senator Mitt Romney running to safety after being warned by Officer Eugene Goodman. (Video via C-SPAN)

Rubio’s tweet was as woefully lacking in legal foundation as it was punctuation. (That he disabled replies to the tweet is telling.) But it was the latest in a host of lead-balloon defenses Republicans have floated in recent days, including claims that the impeachment trial was unconstitutional, that the First Amendment protected Trump’s incitement, and that the insurrectionists planned the attack on their own and Trump had nothing to do with it.

No law, precedent, or facts support any of these proffered defenses. After all, during Trump’s first impeachment last year, Republicans claimed that he should have been exonerated because he was not accused of committing a crime for his alleged efforts to pressure Ukrainian officials for political dirt on Biden. (The Government Accountability Office ruled that Trump indeed acted unlawfully in withholding congressionally approved aid to Ukraine, but that’s beside this particular point.)

Now, according to Rubio, the fact that the criminal charges could be filed hampers senators’ ability to hold Trump accountable.

That is nonsensical, of course, and Rubio — a law school graduate — knows it. All the potential criminal liability in the world does not relieve Rubio or his colleagues of the duty they assumed at the start of the impeachment trial when they took an oath to “do impartial justice according to the Constitution and laws.”


Trump could very well face criminal liability for his months-long antidemocratic pressure campaign to reverse the results of an election he lost.

One month after the release of audio from a phone conversation Trump had with Georgia election officials pressuring them to overturn Biden’s victory in that state — “I only need 11,000 votes, fellas, I need 11,000 votes,” Trump said — The New York Times reported this week that prosecutors in Georgia had opened a criminal investigation into “attempts to influence the administration” of the election.

State officials, including Secretary of State Brad Raffensperger, have been asked by Fulton County district attorney Fani Willis to preserve documents related to the investigation into potential criminal violations, including solicitation of election fraud, conspiracy, racketeering, and violation of oath of office, according to the report.

If anything, that news, as well as the potential for Trump to face criminal incitement charges in connection with the insurrection that left five people dead, should give Senate Republicans more incentive to be faithful to their constitutional duty to hold Trump accountable, not less.

And, as those Republican senators know, the impeachment power was not created to be a substitute for criminal action; it is a crucial constitutional check on the power of the presidency to guard against the exact kind of autocratic actions of which Trump stands accused. Just as a drunken driver can face civil liability for the damage, destruction, and death he or she causes in addition to criminal charges, Trump can be held accountable by the Senate — the only body that can deem him unfit to run for office again — for his high crimes and misdemeanors, regardless of what may happen in any criminal court.


But again, Rubio knows this. His signal that he’s searching for some way — any way — to avoid a vote to convict Trump for his direct role in the insurrection probaby has more to do with his fear of a primary challenge by Trump’s daughter Ivanka than any potential criminal probe. But that doesn’t make his oath any less binding, or the law any less clear. It only makes his lack of moral clarity more obvious.