The Trump Trial: Danger in the Senate

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

As the curtain goes up Tuesday on the Senate’s trial of President Trump for incitement of insurrection, the betting is on acquittal (94% on one sports site). Most members of the Republican caucus have already voted that trying a former president would be unconstitutional. Hence the press jumped in to suggest that acquittal is “almost certain” (per Al Jazeera and the Washington Post) and “likely” (per the New York Times).

The Sun is less sanguine about what is likely to happen in the Senate. Partly this is owing to our general leeriness of the upper chamber. That’s a dismay that has grown over decades of covering great causes that died in that notorious graveyard of reform. Partly it owes to our reading of the House brief, which is devoid of due process. Partly it owes to the structural nature of the proceeding.

It is a process in which the Congress whose House enacted the bill of impeachment and whose Senate will try Mr. Trump is the very institution that was attacked by the mob that was allegedly incited by Mr. Trump. That is, Congress is the prosecutor, judge, jury — and victim! The one-man check-and-balance who might have passed for an impartial presider, Chief Justice Roberts, wouldn’t go near the proceeding. He’s no dummy.

In any event, the House’s trial memorandum has a mincing and sly quality. From the first sentence, it strikes us as off. “This trial,” it avers, “arises from President Donald J. Trump’s incitement of insurrection against the Republic he swore to protect.” What Mr. Trump (and George Washington) swore to protect — and preserve and defend — was not the Republic. It was the Constitution. Why does the House shave the point?

It knows that constitutional disputation is the soul of our law. In the run-up to January 6, Mr. Trump was pressing, however erroneous many believe him to have been, a constitutional dispute. He lacked evidence. Yet neither have we seen evidence that he intended any more violence than, say, Senator Schumer intended when at an abortion rally he warned Justices Gorsuch and Kavanaugh that they had “released the whirlwind” and would “pay the price.”

The House’s acknowledgment of Mr. Trump’s declaration of peaceful intentions is, by our lights, too grudging. “Twenty minutes into the rally,” the House notes, en passant, “President Trump said that those marching toward the Capitol should do so ‘peacefully.’” That’s all it gives him. Completely missing in the House document is the context in which Mr. Trump framed his call for peaceable assembly.

“We have come,” the president said, “to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Mr. Trump went on to say that “today, we will see whether Republicans stand strong for integrity of our elections.”

To our ear, the call for his followers to peacefully and patriotically make themselves heard was the topic sentence of Mr. Trump’s remarks. It belies the suggestions by the House that Mr. Trump’s encouragement to “fight like hell” was a call to physical violence. It appears, though, that the House is going to seek to link such language by Mr. Trump to the violence that did break out and that horrified the nation.

Our guess is that the House will seek to link to this narrative the language of the federal statute that applies to anyone who “incites” or “sets on foot” any insurrection against the authority of the United States. Yet the rush to judgment in the House — that is, its failure to hold hearings, subpoena evidence, and cross-examine witnesses under oath — has made a charade of due process. Just when due process ought to be at a premium.

President Trump’s answer to all this is sketched, but only that, in a 14-page document, addressed to the Senate. It suggests the Senate lacks the power to try Mr. Trump after he has left the presidency. That’s because, it notes, the parchment says that “[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor…”

Mr. Trump’s lawyers added the emphasis to argue that removal from office and disqualification must take place jointly — an impossibility in respect of a former president. They deny that the President committed insurrection. They argue that the House has combined in a single article many of what should be separate counts, making a fair judgment on any of them impossible. It’s an error that helped sink the Clinton impeachment.

So why is the Sun so short on sanguinity? At the moment, we find it hard to see where the House has met any real burden of proof. Yet the House wouldn’t have to come up with much to have the solons scrambling for their copies of Ex Parte Bollman and Swartwout. That’s the Supreme Court case in which Chief Justice Marshall acquitted two confederates of Aaron Burr of treason because war hadn’t been levied.

Marshall issued a famous warning. It was not the intention of the Court, he wrote, “to say that no individual can be guilty of this crime who has not appeared in arms against his county.” On the contrary, he wrote, “if war be actually levied,” then “all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

President Trump isn’t being accused of anything even close to the capital crime of treason. If, though, the House springs evidence that Mr. Trump was leagued in any way with a plan for the kind of violence that erupted on January 6, then the logic Marshall marked in Bollman could entangle him. It would be a sad day, in our view, but the acquittal the press is predicting could elude Mr. Trump after all.


Image: Trial of President Andrew Johnson in the Senate, 1868. From Harper’s Weekly, via Wikipedia.

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