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Trump’s defense shows Democrats are impeaching him for the wrong thing

The argument is too broad and rests on legally untenable grounds. Reckless and deadly disregard is the better, narrower claim.

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Bruce Castor, left, and Michael van der Veen, lawyers for former President Donald Trump, arrive at the Capitol on the fourth day of the second impeachment trial of Trump in the Senate, Friday, Feb. 12, 2021, in Washington.

Jose Luis Magana, Associated Press

As I write, #whataboutism is trending on Twitter. On the surface, it’s a fair critique of Donald Trump’s lawyers as they defend the former president against the Democrats’ primary accusation against him: that he incited the insurrection on the U.S. Capitol on Jan. 6.

In an attempt to undermine that claim, Trump’s team has edited together montages of liberal and Democratic figures seeming to condone or encourage “fighting” and political violence — a video shown multiple times already — as well as such figures making repeated claims of voter fraud and election illegitimacy.

Last month, I wrote a column condemning such “whataboutism,” or the selective outrage exhibited in different ways by both sides of the political spectrum. I said that both sides need to be better — to own up to the truth, regardless of how it reflects on them, and thereby elevate the national discourse.

But the argument of Trump’s defense team is a bit more sophisticated than simple selective outrage. His lawyers are not crying foul that Democrats and liberals weren’t held accountable for appearing to condone deadly violence or insisting that past elections were fraudulent; they’re saying that these left-wing figures also didn’t do anything wrong — that their speech, like Trump’s, is constitutionally protected. They’re applying the same principle equally across the political board.

That’s different from “whataboutism.” And it proves that Democrats’ argument for impeachment is too broad and rests on legally untenable grounds. Their claims are further undercut by the defense team’s correct observation that the House managers’ prosecution relied largely on both selectively edited footage as well as unverified media reports — as demonstrated by a video montage showing how frequently the managers used the word “reportedly” — rather than on evidence produced by an independent, fact-finding investigation (one that, as the team shows, House Speaker Nancy Pelosi herself has called for). It’s a critique that gives teeth to the defense team’s complaints about lack of due process.

What Trump’s lawyers haven’t yet defended in sufficient detail, though, is the president’s negligence during the storming of the Capitol. As I have previously written, Trump’s principal offense in the violence of Jan. 6 was his failure to intervene after the chaos had already gotten underway. The House managers laid out this argument effectively in their case: Trump had both executive and symbolic power to stop the violence, but he let it go on for hours — and at least five people, possibly as many as seven, died because of it. And new details surrounding the president’s phone call with Alabama Sen. Tommy Tuberville suggest that he knew then-Vice President Mike Pence was in danger hours before he publicly acknowledged it and may have even tweeted his displeasure at Pence while a mob calling for his lynching came within feet of where he was hiding.

This — this reckless and deadly disregard — is the narrow claim under which Democrats should be impeaching the president. This is what GOP Rep. Liz Cheney has decried as the greatest “betrayal by a president of the United States of his office”: that “the president could have immediately and forcefully intervened to stop the violence. He did not.”

Of course, such a claim would indeed require a fact-finding investigation. It would require calling witnesses close to the president to testify under oath what Trump did in those critical hours. In short, it would require due process. And depending on what evidence that process produced, it may end up exonerating the president.

But it remains the best case against Trump. And though Democrats have persuasively argued that case on at least a preliminary basis, that their argument was mixed in with so many shakier claims diminishes its power. And it gives GOP senators wide berth to vote against conviction, on the grounds that not every charge exhibited in this article of impeachment could be firmly proven. Of course, a small handful of Republicans are likely to vote for conviction anyway, but the vast majority won’t — and they will be well within their right to abstain from doing so.

Trump’s lawyers have formally concluded their case that their client didn’t directly incite violence, without satisfactorily discussing his negligence. During questioning, they likely won’t need to do anything more than a cursory defense of it; they’ve already proven that this impeachment article contains too much politicized fluff. And as frustrating as it may be, that’s on the Democrats.