Failing to convict the former president will send a clear and alarming message: future elections can be overturned by force
‘The trial has shown how close the rioters came to finding elected officials, how they hunted them down corridors.’ Congress staffers create a barricade inside the US Capitol, 6 January. Photograph: Olivier Douliery/AFP/Getty Images
Rare is the trial that takes place at the scene of the crime. Rarer still is the trial where the jurors are also witnesses to, if not victims of, that crime. Which means that the case of Donald Trump should be open and shut, a slam-dunk. Because those sitting in judgment saw the consequences of what Trump did on 6 January. They heard it. And, as security footage played during this week’s proceedings showed, they ran for their lives because of it.
And yet, most watching the second trial of Trump – only the fourth impeachment in US history – presume that it will end in his acquittal. They expect that fewer than 17 Republican senators will find the former president guilty of inciting an insurrection and so, lacking the required two-thirds majority, the verdict will be not guilty. Barring a late spasm of conscience by the senate Republican leader, Mitch McConnell, Trump will pronounce himself vindicated, the case against him a hoax and he will be free to run again in 2024 – and to loom over his party as its dominant presence at least until then.
That fact alone should quash the temptation to regard the current proceedings, which could conclude this weekend, as a footnote to the Trump era, one to be safely tucked away in the history books. The reverse is true. The likely acquittal suggests the danger of Trump has far from passed: the threat he embodied remains live and active – and is now embedded deep inside the US body politic.
The Democratic members of the House of Representatives acting as prosecutors have laid out an unanswerable case. Vividly and with extensive use of video, they have reminded senators – and the watching public – of the vehemence and violence of the mob that stormed the Capitol last month, how Trump supporters attacked police officers, even using poles carrying the American flag to bludgeon those in uniform. They’ve shown how close the rioters came to finding elected officials, how they hunted them down marbled corridors and stone staircases, looking for “fucking traitors”. They had a gallows and noose ready.
Naturally, Republicans have bitten their lip and said how awful it all was – but have insisted none of it can be blamed on Trump. So the prosecution reminded them of Trump’s words on the day, telling the crowd within striking distance of Congress to head over there, “to show strength” and to “fight like hell”. Oh, but only “idiots” could take such language literally, say Trump’s defenders. Except those who sacked the Capitol took it very literally, filmed as they told the besieged police that they had been “invited” there by the president, that they were “fighting for Trump” at his urging. They believed they were following his explicit instructions.
The incitement was not confined to that speech, but began long before – and continued after – the rioting started. Trump whipped up the Washington crowd that bitter January day, but he’d been whipping up his supporters for nearly a year, telling them the 2020 election would be stolen, that the only way he could possibly lose would be if the contest was rigged. The big lie that drove the crowd to break down the doors and run riot was that Trump had won and Joe Biden had lost the election – that a contest that was, in fact, free and fair was instead fraudulent, despite 59 out of 60 claims of voter fraud being thrown out of courts across the US through lack of evidence. Their aim was to stop the formal certification ceremony, to “stop the steal” – as Trump had demanded they must for several months.
So much for incitement before the riot. Among the most shocking facts laid bare this week was that Trump’s incitement persisted even after the violence was under way. One of the former president’s most ardent supporters, Alabama senator Tommy Tuberville, let slip that he had told Trump by phone that vice-president Mike Pence had had to be removed from the chamber for his own safety. And yet, minutes after that call, Trump tweeted an attack on Pence for failing to have “the courage” to thwart Biden’s victory, all but painting a target on the VP’s back.
Couple that with Trump’s failure to do anything to stop the violence once it had begun – the two-hour delay before sending backup for the police – and the picture is complete: a president who urged a murderous mob to overturn a democratic election by force, who watched them attempt it, who did nothing to stop it and even directed their anger towards specific, named targets. Put it this way, what more would a president have to do to be found guilty of inciting an insurrection?
Republicans have sought refuge in the first amendment, saying Trump’s words were protected by his right to free speech, or else that it’s improper to convict a president once he’s left office. Most legal scholars wave aside those arguments, but let’s not pretend Republicans’ objections are on legal grounds. They are not acting as sincere jurors, weighing the evidence in good faith. If they were, then three of them would not have met Trump’s legal team to discuss strategy on Thursday, in what is surely a rather novel reading of jury service.
No, the law is not driving these people to say Trump should be given a free pass for his crime. It is fear. They felt fear on 6 January, when some of them went on camera to beg Trump to call off his mob, but they feel a greater fear now. They fear the threat Trump made in his speech that day, when he told the crowd “we have to primary the hell out of the ones that don’t fight”. Republican senators fear internal party challenges from Trumpists in their states, and they fear a base that is now the obedient creature of Donald Trump. Their only way out, they think, is to acquit a man they surely know – must know – is guilty as charged.
The consequences are perilous. Most directly, Trump will be able to run again, and will be free to try the same trick anew – unleashing his shock troops to ensure his will is done. If Trump loses, say, the New Hampshire primary in 2024, what’s to prevent him urging his devotees to “stop the steal” once more? Even after Trump is gone, a grim precedent will exist. House Democrat Jamie Raskin was right to warn Republicans that acquittal would “set a new terrible standard for presidential misconduct”. When a future president doesn’t get their way, they can simply incite violence against the system they are pledged to defend.
Still, the greatest danger is not in the future. It is clear and present. It is that one of the US’s two governing parties is poised to approve the notion that democracy can be overturned by force. By acquitting Trump, the Republicans will declare themselves no longer bound by the constitution or the rule of law or even reality, refusing to break from the lie that their party won an election that it lost. This poison is not confined to the extremities of the US body politic. It is now in its blood and in its heart.
- Jonathan Freedland is a Guardian columnist