FEBRUARY 13, 2021 – After watching three days of the impeachment trial, I needed to reduce the process to a its procedural and substantive essence.
Impeachment is a purely political process, not a legal one. The right to impeach resides exclusively with the House, and the Senate alone holds the right to “try” and “convict” or “acquit.” The only “sentence” for conviction is removal from office and/or disqualification from holding federal office in the future. There’s no judicial review, no right to “due process” beyond what the Senate decides to allow.
Procedurally, an impeachment “trial” resembles a legal trial, but in most ways the two are radically different. Just as the ultimate decision—“convict” or “acquit”—is political and not jurisprudential, the rules of evidence, the rules of procedure, the standard of proof, and even elements of the subject “high crime and misdemeanors” are whatever the Senate decides they should be. House managers and the president’s advocates get to proffer anything they wish and argue whatever they desire, subject only to rules adopted by the Senate itself; the centerpiece of those rules pertain to clock and calendar. Little evidence or argument is precluded, since, after all, the process is political, not legal. In sum, contrary to Trump lawyer Van Der Veen’s argument, at question is not legal due process or whether legally admissible evidence meets the narrow elements of a prescribed crime.
All of which leads to confusion, particularly by Trump’s third-string lawyers, who are wholly out of their element, as well as their league. They’re typical junkyard lawyers one observes from time to time in a courtroom—hired “bluster-guns” who’ll take on any loser case that walks in the door—provided it pays. The tell-tale signs of their “affected” advocacy are: (a) hyperbolic language; (b) exaggerated righteous indignation; (c) strained reasoning camouflaged by affected certitude; and (d) a high ratio of adjectives-to-nouns in describing facts.
Trump’s second impeachment trial concerns three questions: 1. Should (again, because the process is political, not “can” or “may”) a former president be disqualified from holding future federal office because of acts committed while in office? 2. Was the capitol riot so serious that incitement of such warrants disqualification for future office? and 3. Should Trump be held responsible for the riot?
From a higher perspective, these questions can be further reduced to this: Given the gravity of the capitol riot and the nature of Trump’s behavior with respect thereto, what kind of signal will the Senate’s verdict send to our future?
However each Senator approaches this question, whether by critical analysis or a finger in the political winds, the Senate vote will produce consequences far into the future. Irrespective of how Republicans vote, what’s hard-wired into the record is the violent assault on the electoral process—the very foundation of our form of government—as opposed to perjury in the course of testimony about an extra-marital affair. Two integral and indelible images within that record are the flag—the flag—of a dangerous demagogue and the flag of the Republic, weaponized against democracy.
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© 2021 by Eric Nilsson
