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With Trump’s Second Impeachment Set to Begin, How Will It Differ From the First?

In a courtroom with an unbiased jury, the second impeachment trial of Donald Trump would be a slam dunk.

Outgoing President Donald Trump and First Lady Melania Trump walk on stage prior to speaking at Joint Base Andrews in Suitland, Maryland, on January 20, 2021.

The era of Donald Trump is not over, unfortunately. Yes, he has retreated to his compound in Southern Florida and has been uncharacteristically out of the public eye since he left office on January 20th. But his presence still hovers over the Republican Party like an evil genie pulling the party leadership’s strings and keeping the rank and file under his spell despite the fact that he’s been banned from social media and is refusing to appear on TV or talk radio.

This week, Trump will be very much at the center of our political world once more when his second impeachment trial begins.

As exhausting as it may seem to have Trump on the stage again, it is vitally necessary. The man tried to overturn the election and illegally install himself in the White House for four more years. While it’s still unlikely the impeachment managers from the House of Representatives will be able to get 17 Republicans senators to put their country before their party, the record will be kept for posterity and hopefully the country will figure out a way to close the holes in our system that Trump exposed during his four years in office. The impeachment managers had better get to work doing that because just as it is highly unlikely they will be able to convict Trump of his abuse of power it’s equally unlikely that they will be able to disqualify him from running again (although that is disputed). God forbid, it is possible that we could have President Trump again on January 20th, 2025.

There has been a lot of back and forth on the issue of whether or not it’s constitutional to even hold an impeachment trial of a president who is no longer in office. The brief Trump’s lawyers submitted suggests that they will be leaning hard on the idea that it’s unconstitutional as their defense, which is understandable since the GOP senators signaled that was the ticket out when 45 of them voted for a resolution saying that it was.

Interestingly, there has been pushback on this from some highly respected conservative legal scholars from the Federalist Society, notably former federal judge Michael McConnell and Charles J. Cooper, who is as stalwart a right-winger as exists in the Republican legal world. Cooper has worked closely with Ted Cruz of Texas and House Minority Leader Kevin McCarthy as well as provided counsel for every conservative legal crusade from anti-abortion cases to gun rights. Writing in the Wall Street Journal on Sunday, Cooper points out that the idea a president cannot be impeached after leaving office makes no sense considering the provision that allows the Senate to bar him or her from holding office again. He says, “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.”

There was a time when an opinion from Charles Cooper would hold great sway with Republican senators. But they have mostly been immune to reason when it comes to Trump for years now and that hasn’t changed since he left office. Still, if there are any conservatives looking for some back-up to argue the point, he’s given it to them.

The House managers will be presenting a case that says, “you all know what you saw, here’s a reminder.” They will air video clips showing that for weeks Trump riled up his voters with the Big Lie about the election and then called them to Washington, promising it would be “wild,” and then incited them to storm the Capitol to stop the counting of the electoral votes. He told them he was going up there with them but went back to the White House instead. Did he suspect there was going to be violence? It’s a question worth asking. Back at the White House he watched the insurrection on television and did nothing for hours until he reluctantly issued this video:

And then, with the Capitol building still engulfed in tear gas and smoke, windows shattered, people wounded and the country in shock, he tweeted this which resulted in Twitter finally locking his account:

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!

That is basically the case right there. In a courtroom with an unbiased jury, it would be a slam dunk.

But this won’t be a normal courtroom and it’s anything but an unbiased jury. It’s nearly the same jury that ignored Trump’s embrace of illegal electoral behavior going all the way back to 2016 when he was warned that the Russian government was interfering in the election and his reaction was to invite them to hack Hillary Clinton’s email and spend the next four years denying the interference had ever happened. When asked in the presidential debate that year if he would accept the results of the election, he refused to say. Days later he told his rally crowd that he would accept it — but only if he won.

Fast forward two years and Trump is caught trying to extort the Ukrainian president to sabotage Joe Biden’s presidential campaign in exchange for military aid, a gross abuse of power for which he was impeached and acquitted by the Republicans in the Senate. Many of those senators argued that since it was only a year from the election they should let the people decide.

And then came the Big Lie that the election of 2020 was stolen and the incitement to insurrection on January 6th. Many of those same senators who suggested the people should decide joined Trump in his post-election fantasy, refusing to admit that it was over, objecting to the results on the most specious of grounds.

From almost the moment Trump entered politics, he’s been telegraphing that he had no intention of following the rules or laws that govern our democracy, especially those pertaining to elections. Once he learned how the Electoral College makes it possible to win despite losing he clearly thought he could game the system to his advantage and might well have succeeded if it had been just a little bit closer in some states. At some point, he became convinced that he could overturn the election if he intimidated Mike Pence and the Congress with a violent mob. And all the way along, a majority of Republicans have collaborated with him, in the process normalizing this democratic dysfunction.

Republicans have shown us in living color that they will not forthrightly stand up against an assault on our democracy by one of their own. A handful voted to impeach in the House and it’s possible another handful will vote guilty in the Senate, but the number who stood by Trump, openly and boldly, to object to the election results despite massive evidence that the election was fairly decided is chilling. They now seem determined to let Trump off the hook once again. At this point, you have to wonder if it isn’t because at least some of them think he was on to something.

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