It may see a waste of time to go over the impeachment trial now, after Trump has been acquitted. But the acquittal was a foregone conclusion and I was too busy at work to watch hours of hearings. Besides, reviewing the impeachment after the fact can offer a certain perspective. So here goes Day One.
In my comments on the last impeachment trial, I said that in these polarized times it is extremely difficult to appeal simultaneously at the level of logos, ethos, and pathos because the ethos and pathos of both sides are so far apart. I therefore recommended sticking as much as possible to logos and attempting at least to find a common ground in facts. This second impeachment trial is an exception to that general rule. In this case, all the senators/juror were witnesses to and potential victims of the crime being tried.* This gave them and the impeachment managers a common ground in pathos. It permitted the impeachment managers to appeal at all three levels.
The first day was addressed to whether the Senate had the power to try a former official at all. Jamie Raskin, the head manager, began. He argued first that if the Senate cannot try the impeachment of an ex-President, it creates a "January exception" to the rule that the President is impeachable for any misconduct in office and creates a month of immunity. And what would that look like? He then played a twelve-minute montage of the January 6 insurrection. You-Tube put up a warning, both because of the graphic violence being depicted and the language of some of the rioters. It was a gripping presentation -- so gripping that I found it quite jarring when we returned to the Senate Chamber and Raskin speaking. I had all but forgotten that I was watching an impeachment trial! (The Senators presumably did not forget. But as witnesses and potential targets of the violence, it must have had an even stronger impact on them). He went on to explain that the transition of power is the most dangerous time, the time with the greatest temptation to a President to hold onto power by unlawful means. He then gave historical examples to show that impeachments of former officials were accepted at the time the Constitution was adopted. The fact that Constitution authorizes impeachment and does not bar impeachment of former officials must mean that it allows such impeachments.
Joe Nerguse then followed to address historical examples and scholarly treatises for the proposition that the Senate could try former officials. It was an argument based on pure logos and shows why pure logos is not sufficient to be persuasive. It get dull. David Cicilline then followed with an appeals at all levels. He argued that Trump violated his sacret oath of office, that he poses an intolerable threat to democracy, and made a point-by-point rebuttal to defense arguments. Raskin followed up with an appeal to pure pathos -- his own experiences during the insurrection, including that his daughter and son-in-law were present, and his daughter never wanted to come back.
After that came Bruce Castor's rambling, widely-panned performance. What can I say about it. Donald Trump was said to have screamed at the TV while Castor was talking. Fox and Friends apparently made the comment that if that had been their lawyer, they would have screamed too. Newsmax found the whole thing so embarrassing that it cut away to ask Alan Dershowitz what he was trying to achieve and Dershowitz said he had no idea, he could only assume Castor was buttering them up.
Castor's official story was apparently that he made a rambling, incoherent presentation on purpose to lower the emotional temperature after a very intense presentation. After listening, I can say that I actually can see what Castor was getting at. He was making a standard defense lawyer argument in a case that has graphic evidence of the crime, but leaves room for doubt as to whether the defendant committed it. (Contrary to Perry Mason, this constitutes a distinct minority of criminal trials). It may also show why a prosecutor should not take a defense lawyer's job. Castor has doubtless seen any number of criminal defense lawyers give this speech or some variation on it. Criminal defense lawyers probably have a standard version in their computers and can plug in details. A decently done version would go something like this:
I have viewed the footage of these riots along with the rest of you and I understand the outrage every one of you must feel. Let there be no mistake. These are heinous crimes. I feel the same horror and repugnance as any of you. You will not hear me or any member of my team defend or minimize what happened on that terrible day. It is only natural after watching this footage for you to want to punish whoever is closest at hand for these horrific acts.But that is precisely what you must not do. Lashing out at the person nearest at hand may satisfy a primitive desire for vengeance, but it does nothing to protect our community. Unthinkingly venting your anger on the nearest target will only imprison [disqualify] an innocent man while the real offenders remain at large to threaten us all. You can protect our community only by setting aside the emotions that the prosecutor is attempting to stir and looking, calmly and deliberately, at the evidence and asking -- does the evidence point to this particular defendant? The law has entrusted you, the jury, with this deliberative function in order to ensure that this court does not dispense unthinking vengeance, but justice.
I an ordinary trial, the defense lawyer would then proceed to point out the various holes in the case against his client. in case of an impeachment trial before the Senate, the defense lawyer could make some of the same points that Castor was trying to make in a more succinct manner. He might say:
The law has entrusted this deliberative function to you. And I can think of no better place to entrust it than -- as the Senate likes to say -- the world's greatest deliberative body. The Founders of the Constitution created a Senate and gave them a six-year term to protect this deliberative function from popular and party passions. And there has never been a time when it was more important to set aside passion, set aside popular pressure, and set aside party, than now.
That is a shorter, clearer, more succinct attempt to turn down the emotional temperature that defense lawyers use as a matter of routine. I am not even a criminal defense lawyer and it took me about fifteen minutes to write that. Castor took over 45 minutes of incoherent rambling to say much the same thing. He then introduced David Schoen to do the heavy lifting. A an equally effective approach, really, would have been to skip Castor altogether and go straight to Schoen.
What can I say about Schoen? I didn't think he was all that bad, really, at least not at the level of logos. He made an extended appeal to law and precedent to argue that impeachment of former officials was not allowed, that Trump was denied due process, and that the Chief Justice should preside. It seemed rather mind-numbing, but then again, I was watching it late at night and may not have been as clear-headed as one could wish.
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| You can just vote him out of office |
It was at the level of ethos and pathos that Schoen was troubling. His appeal to ethos and pathos was a blatant display of partisanship. Castor made some of the argument as well. Castor argued that if the people dislike their leader, they are always free to vote him out of office. The people did just that and it worked perfectly well. In that he ignored the little matter of the insurrection that put something of a glitch in the smooth workings of the election. He then argued that it was unfair to bar Trump from running for office again because it denied 74 million people their preferred candidate. Schoen made much the same argument but pushed it further. Allow the impeachment of former officials, and Congress may use impeachment as a blatantly partisan tool, to bar the most promising potential candidate from running. Indeed, he warned, Democrats may use impeachment to bar anyone from running who does not share their ideological viewpoint.
This argument ignores the bleeding obvious. The people got tired of Trump and voted him out of office, but it did not work just fine. Quite the contrary, it led to sixty meritless lawsuits, pressure on state legislatures to overturn the results, an attempt to rig the election in Georgia, and a GODDAM FUCKING INSURRECTION! The Constitution already puts restrains on who the people may vote for. If the people want to elect Arnold Schwartzenegger as President, that is too bad. The Constitution bars it because he is not a natural born US citizen. It the people want to choose Alexandria Ocasio-Cortez in 2024, the Constitution will again bar it because she is too young. And it is eminently reasonable to bar 74 million Americans from choosing Donald Trump in 2024. After all, what if he loses? We have seen all too clearly how he responds to defeat. It is legitimate to bar from running a candidate who responds to defeat by INCITING A VIOLENT INSURRECTION. Or even one who files sixty meritless lawsuits, urges state legislatures to override the results, and pressures state officials to rig the outcome. Our whole system of elective government depends on the losers accepting the outcome.
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*Needless to say, this would disqualify them from serving on a jury in any conventional trial.
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