Seven Republicans supported conviction: Sens. Richard Burr (R-N.C.) Bill Cassidy (R-La.), Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Mitt Romney (R-Utah), Ben Sasse (R-Neb.) and Patrick J. Toomey (R-Pa.). Only once before had even one member of a president’s party ever voted to convict, when Romney did so at Trump’s previous impeachment trial.
The number of GOP votes for conviction was notably larger than the number who had previously voted to proceed with the trial. On one vote, five voted the trial was constitutional. Earlier this week, just six voted that the Senate had jurisdiction to hear the case.
Burr and Toomey both voted to convict after voting against both previously. But Cassidy’s vote might be the most significant. Both Burr and Toomey are retiring, and the others have been high-profile critics of Trump. But Cassidy comes from one of the most conservative states in the country. Even his vote to proceed with the trial last week — after previously voting that the trial was unconstitutional — led to plenty of predictions he’d eventually fall in line. As with several other Republicans, he risked plenty to cast his vote as he did.
One key vote the House impeachment managers didn’t get was another senator who had expressed openness to conviction: Senate Minority Leader Mitch McConnell (R-Ky.). Given the historically bipartisan votes, though, you have to wonder whether if McConnell decided to press the issue he could have gotten enough votes for a conviction.
2. The Democrats’ back-down
As the trial began this week, a disconnect emerged. Democrats said this situation was vitally important — so important that they needed to impeach Trump for the second time and then, for the first time in history, hold a Senate trial for a former president — yet they didn’t plan to call any witnesses to actually unearth new evidence.
For a brief period Saturday, given several huge questions remained unresolved, it appeared they were reversing course. They called for subpoenaing Rep. Jaime Herrera Beutler (R-Wash.) to describe Trump’s call to House Minority Leader Kevin McCarthy (R-Calif.) during the Capitol riot.
Then they backed off. A deal was cut under which Beutler’s statement suggesting Trump had spoken approvingly of the Capitol rioters in real time was entered into the record, and no witnesses would be called.
It’s easy to call this a cave. As plenty noted, Democrats seemed to have the votes for witnesses, with several Republicans voting with them on the broader question about whether to allow them. Enough Republicans appeared to be onboard and conviction-curious to hear from the likes of Beutler and others. Trump’s team could have requested all the witnesses they wanted — and they threatened hundreds — but each would have required a vote. Democrats held the cards.
And then they laid down their hand.
We’ll surely learn how this all came about. Democrats clearly wanted to get past the trial and move on to passing President Biden’s agenda, including coronavirus relief. They also knew that virtually nothing would sway the 17 Republicans needed for a conviction.
But then we come back to what was mentioned at the top: They said this was vitally important. They said this was the worst offense a president had ever committed. They said accountability was required. Even if Republicans would never have provided enough votes, there is still value in putting all of this on the record — and maybe even, however unlikely, forcing those Republicans to confront the evidence the Democrats say was so incontrovertible.
Democrats passed on even really trying. It just doesn’t speak to the idea that this was the worst high crime in American history.
In their closing arguments, Democrats acknowledged they left stones unturned.
“There was a lot of discussion yesterday about what the president knew and when he knew it,” Rep. David N. Cicilline (D-R.I.) said during closing arguments. “There are certain things that we do not know about what the president did that day, because former president Trump has remained silent about what he was doing during one of the bloodiest attacks on our Capitol since 1812.”
But not just because Trump didn’t testify or comment that we don’t know that; it’s also because Democrats opted not to press this further. Even many Republicans have faulted Trump for his conduct both before and during Jan. 6. Why not put them in the position of voting against even more compelling evidence — evidence which Democrats have assured is out there for the finding?
“This is America, home of the brave, land of the free,” lead House impeachment manager Rep. Jamie Raskin (D-Md.) said, “the America of Ben Franklin, who said, if you make yourself a sheep, the wolves will eat you. Don’t make yourself a sheep; the wolves will eat you.”
Democrats didn’t exactly make themselves wolves.
3. The Republicans’ cop-out
But it’s also the definition of a technicality — and it arguably doesn’t hold up.
But the courts almost always defer to Congress on such things, because of the separation of powers. Thus, when the Senate itself voted that it had the jurisdiction to try Trump, that arguably settled the issue. The Senate voted 56-44 that it had jurisdiction.
Lawmakers are allowed to vote to acquit Trump for whatever reason they choose. The rules in such a trial are not the same as a criminal trial, in which jurors at this stage would be required to disregard previous rulings and decide the case on the merits.
But this remains a thoroughly convenient justification for people who seemingly don’t want to address Trump’s actual conduct.
They would argue they’re upholding the Constitution, but the process moved beyond the constitutionality question. Through a constitutionally ascribed process, the lawmakers elected by the people to make such decisions — and who could be held accountable for them — decided to press forward. And the others could just as well cite this technicality while also addressing Trump’s actions, if they so chose.
Most of them aren’t, for a very obvious reason.
4. The country’s next step
Democrats had plenty of reason to tell themselves it was okay to move on from this without pressing harder for a conviction.
One of them is the looming congressional, 9/11 commission-like investigations into what happened that day, which are surely coming. Whatever we might not have learned from witnesses in this impeachment trial, we could learn in such an inquiry in due time.
We might learn plenty in the months and years to come. But there is clearly a disincentive when it comes to criminal charges against a former president, given the political ramifications. And anything that results from a congressional inquiry will be older news by then. Even in the month-plus since the Capitol riot, the unquestionably tragic scenes fade somewhat from memory. I’m sure I’m not the only one who watched the videos played this week and realized how much I’d forgotten — or potentially blocked out — from that day. Acting quickly is fraught because you might not know everything, but waiting too long also carries drawbacks.
Trump’s culpability is for people to decide. Legally speaking, incitement is a high bar to clear. It requires knowledge of one’s frame of mind and/or lots of evidence about how they might have reasonably understood their words would be perceived. Trump has almost always offered mixed messages that provide him plausible deniability while suggestively alluding to violence by his supporters or, at least, painting a drastic enough picture that might lead to such drastic measures.
But we also know not just that lots of people suggested Trump’s words could lead to violence — including his allies — but also that many Republicans suggested in the aftermath that Trump had contributed to just that (whether that technically amounted to incitement).
From here, any real resolutions when it comes to his culpability will take a very long time. If Trump is still flirting with an attempted return to the presidency in 2024, that will remain relevant. If he’s not, it could fade even further from memory in a way that Democrats said it shouldn’t be allowed to.