Day 1: Moral Depravity of GQP Senators Revealed With ‘Jury Nullification’ Vote

Molly Jong-Fast at The Daily Beast succinctly sums up what is at stake in this impeachment trial:

[I]mpeachment no longer feels like a punishment for Trump so much as a necessity for democracy. Either things matter or they don’t. Either Congress says armed insurrections are not OK and protects the principle and practice of a peaceful transfer of power, or next time the coup succeeds. We can’t hope that the next president won’t try a coup; we have to strengthen those democratic guardrails now.

But as Axios reports, Vivid impeachment case falls on deaf ears:

The made-through-TV impeachment presentation delivered by House managers presented a gripping narrative for the public but the rambling, legalistic rebuttal Donald Trump’s attorneys presented won Tuesday with the pivotal GQP Senate jurors.

Why it matters: The House managers are playing the outside game; they know it’s a long shot their prosecution will alter the final result, so they’re trying to shift public opinion. Trump’s defense is playing an inside game — they’re doing just enough to sustain the votes needed to acquit the former president.

• • • “Not a single thing will change,” Sen. Tim Scott (R-S.C.) told Axios. “The outcome is set.”

Background: An impeachment proceeding is neither a court case nor subject to popular vote. Instead, it’s a political proceeding. As a test vote on Tuesday showed, the opening arguments — including a gripping 13-minute video montage aired by the Democrats (see above) — did not change the expected outcome.

• • • The only people who matter are the jurors, and Republican senators are the only persuadables. Tuesday’s largely party-line vote about the trial’s constitutionality made clear Trump will almost certainly be acquitted in the end.
    • Only one additional Republican — Sen. Bill Cassidy of Louisiana — was convinced to change a prior vote and agree the trial was constitutional.
    • “I thought they did what they needed to do,” Sen. Roy Blunt (R-Mo.) said of the Trump lawyers. “The end result is what really matters.”

“The end result which really matters” to Republicans is rendering the impeachment clauses of the Constitution null and void, when applied to Republicans. There shall never be any accountability for corruption and criminal activity, or even sedition and insurrection against the United States, when done by a Republican.

This is confirmed by Trump Fluffer Sen. Lindsey Graham (R-SC) admitting that he has no intention of ever being an impartial juror in Donald Trump’s Senate impeachment trial, saying that history – not U.S. Senators – should hold the disgraced ex-president accountable for inciting the Jan. 6 insurrection. Spineless Lindsey Graham Says It’s Not His Job To Hold Trump Accountable. The Constitution expressly provides that it is the Senate which is the sole arbiter of all impeachments. In other words, Graham is abdicating his constitutional duty and is violating his oath of office and as an impeachment juror.

What Republican Senators are engaged in is a practice that they have all condemned in the past, jury nullification:

In its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe beyond reasonable doubt that the defendant has broken the law. Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.

As I have laid out in previous posts and updates in comments to those posts, Donald Trump’s lawyers have failed to set forth any credible defense to the Article of Impeachment. Their arguments have been rejected  and refuted by the overwhelming consensus of legal scholars across the political spectrum, and were rejected and refuted by the House Impeachment Managers. Read the Brief From House Managers Asserting Trump Has ‘No Good Defense’.

Not only that, but Trump’s lawyers misrepresented a legal scholar’s argument which they cite in their brief numerous times, and Trump’s impeachment trial brief constructs an alternative reality of January 6.

Trump’s lawyers say he was immediately ‘horrified’ by Capitol attack. Here’s what his allies and aides said really happened. See also, Ex-White House Official Confirms to CNN: Trump Was “Loving Watching the Capitol Mob”.

This a blatant violation of the Code of Professional Conduct, Rule 3.3 Candor Toward the Tribunal.

Trump’s lawyers presentation on Tuesday was “amateurish,” at best. Jeremy Stahl writes at Slate, The Rambling, Stumbling Case for Trump’s Acquittal:

On Tuesday, President Donald Trump’s second impeachment trial opened with a devastating presentation from the House managers showing why the former president’s actions were worthy of conviction and demonstrating the immediate danger of failing to condemn Trump and ban him from future office. It was a tough act to follow.

How did Trump’s legal team—culled from the bottom of the barrel following a falling out with his first team and the refusal of major firms and conservative legal advocates to represent him—do in response?

Bruce Castor, the former Pennsylvania district attorney who is most famous for having declined to prosecute Bill Cosby for rape, opened up the defense arguments and let’s just say it did not go well.

Before the defense presentation was done, “My Cousin Vinny” was trending on Twitter.

What was so bad about Castor’s performance? For one, in what was supposed to be the opening of a specific procedural and jurisdictional defense, it was hard to identify a consistent narrative thread or particular legal argument he was trying to make. Castor basically conceded this at the end, saying that he had produced his rambling presentation on the fly in response to how well the House managers made their case.

“I’ll be quite frank with you, we changed what we were going to do on account that we thought the House managers’ presentation was well done,” Castor said.

* * *

[I]n an effort to convince the Senate that the impeachment trial was unnecessary, Castor repeatedly pointed out that the American people had already fairly voted Trump out of office—the opposite of what Trump said in his months of complaints about election theft, which had ultimately inspired his supporters to attack the Capitol.

“The American people just spoke and they just changed administrations,” Castor said. Therefore, there’s no need to impeach Trump and bar him from future office because the electoral system—which Trump just spent two months trying to overturn, and which the mob on Jan. 6 sought to halt through violence—worked out in the end. “The people are smart enough … to pick a new administration if they don’t like the old one,” Castor said. “And they just did!”

Inexplicably, Castor repeated the Trump lost the election so you don’t have to punish him for trying to steal it argument a couple more times before moving to ground the former president will surely appreciate even less: If the Senate determines it doesn’t have jurisdiction to try Trump, then he can always be prosecuted by the Justice Department.

“After he’s out of office, you go and arrest him,” Castor said. “So there is no opportunity where the president of the United States can run rampant in January at the end of his term and just go away scot free. The Department of Justice does know what to do about such people and so far I haven’t seen any activity in that direction.”

And, again, these were Castor’s most—perhaps only—intelligible points. After he spoke, the defense team then moved on to David Schoen, who delivered a more impassioned and somewhat more cohesive case that the current impeachment is a “partisan witch hunt” against the president with no basis in fact.

If you're wondering why Trump chose hideous lawyer David Schoen, this is why: pic.twitter.com/lA8UATNN3g

— Sarah Kendzior (@sarahkendzior) February 9, 2021

Schoen’s performance was an aggressive attack on the impeachment managers [not the merits], one of whom had just spilled his soul about the devastating trauma that he and his family experienced the day of the Capitol attack. Castor’s bizarre and nonsensical ramblings may have served as a palate cleanser, so that Schoen’s cutting criticism of the House side didn’t follow directly on impeachment manager Rep. Jamie Raskin’s powerful performance. All the president’s defenders need to do, in the end, is to keep 17 Republican Senators from joining the Democrats.

And there was this: David Schoen blasted for ‘despicable’ defense — threatening more violence by Trump supporters:

Trump defense lawyer David Schoen was harshly criticized on Tuesday for his defense of Donald Trump during his second impeachment trial in the United States Senate.

Schoen gave a fiery speech arguing that impeachment would disenfranchise Trump supporters and could result in more violence from the former president’s base.

Note: It was Donald Trump and his Republican coconspirators and aiders and abettors who sought to disenfranchise the 81,281,502 voters who voted for Joe Biden and Kamala Harris, in a tyranny of the minority.

Here’s some of what people were saying:

Trump lawyer David Schoen says the impeachment is an effort to "disenfranchise" the 74 million who voted for Trump.

Which is an interesting accusation given the two months of attempts by Trump & Co. to *literally* disenfranchise voters in states Biden win.

— Jake Tapper (@jaketapper) February 9, 2021

Trump lawyer David Schoen seems to argue there could be another civil war if Trump is convicted?

"This trial will tear this country apart, perhaps like we have only seen once before in our history."

— Kyle Griffin (@kylegriffin1) February 9, 2021

https://twitter.com/jameshohmann/status/1359244901670678536

The Schoen argument is basically: the people who tried to kill those in this chamber are mad at this trial.

— Elie Mystal (@ElieNYC) February 9, 2021

Wow David Schoen –Roger Stone's lawyer who now reps Trump-is telling us that this trial will cause a literal civil war. He is not warning us- he's threatening us. He's clearly trying to incite anger by Trump supporters.

— (((DeanObeidallah))) (@DeanObeidallah) February 9, 2021

Schoen is daring the senators to vote for conviction, basically saying, yes he did it, but you don’t have the balls to risk the country by convicting him.

I believe the senators should accept this challenge.

— Tom Nichols (@RadioFreeTom) February 9, 2021

Jeremy Stahl continues:

In the end, only six Republicans joined the Democrats in voting that a trial of a former president is constitutional and should go forward—Sens. Bill Cassidy, Susan Collins, Lisa Murkowski, Pat Toomey, Mitt Romney, Ben Sasse—meaning it appears there are already more than enough votes for the Republicans to acquit Trump no matter what arguments they hear. Cassidy was the only Republican who initially signaled a desire to dismiss the case to change his vote this time around, with Minority Leader Mitch McConnell—who had reportedly spoken positively of impeachment early on—voting again with the vast majority of the rest of his conference to let Trump off of the hook.

Castor and Schoen may have made it more embarrassing for them to stick with Trump, but if the last four years demonstrated anything, it was the limits of shame as a force in politics.

Even Republicans and right-wing commentators were critical of Trump’s defense team. ‘Disorganized, random’: Several GOP senators criticize performance of Trump’s lawyers, and  Even right-wing pundits had no clue what Bruce Castor was doing during his impeachment trial speech, and Even Sean Hannity, Laura Ingraham Think Trump’s Impeachment Attorney Was ‘Terrible’, and Trump Impeachment Lawyer’s Performance Gets Trashed On Newsmax, and Alan Dershowitz Had ‘No Idea’ What Trump Impeachment Lawyer Bruce Castor Was Doing.

More importantly, Donald Trump Is Furious With His Legal Team, Impressed With Democrats’ Performance. Somebody’s not going to pay his lawyers fees, again!

Senator Bill Cassidy (R-La), who changed his prior position based upon the arguments on Monday, had this to say.

It is all for naught. Republican Senators are engaging in jury nullification. They were all there and saw what happened. Some are victims/witnesses to Trump’s crime; others are coconspirators and aiders and abettors to Trump’s crime. They all know that Trump is guilty as charged. 44 of them are now accessories after the fact to Trump’s crime.

Greg Sargent of the Washington Post explains, Trump’s weak defense will expose the depravity of GOP senators who acquit him:

As Donald Trump’s impeachment trial gets underway, the choice GOP senators face is being wildly mischaracterized. We keep hearing that they must choose between sticking with the former president or opposing him — between showing “loyalty” to Trump or not showing loyalty to him.

Either GOP senators are loyal to Trump, or they desert him and face the consequences: The choice is entirely framed as revolving around Trump.

But that isn’t the choice GOP senators actually face, and describing this choice accurately is of paramount importance.

The real choice they face is not between sticking with Trump or going against him. Rather, it’s between sticking with Trump or remaining faithful to their oath of office, which requires them to defend the Constitution against those who would undermine or destroy it, and to the oath of impartiality they take as impeachment jurors.

Trump tried to overthrow U.S. democracy to keep himself in power illegitimately, first through corrupt legal efforts, then through nakedly extralegal means, and then by inciting intimidation and violence to disrupt the constitutionally designated process for securing the peaceful conclusion of free and fair elections.

Trump fully intended to subvert the constitutional process designating how our elections unfold, and intended this every step of the way. GOP senators cannot remain “loyal” to Trump without breaking their oaths to execute their public positions faithfully.

The weakness of Trump’s own defense will reveal the true contours of this choice — and demonstrate how his defenders, both on his legal team and in the GOP Senate caucus, will try to bury the inescapable nature of this choice under mounds of obfuscation.

* * *

Senators take an oath of office to “support and defend the Constitution.” When serving as impeachment jurors, they take another oath to “do impartial justice according to the Constitution.”

Corey Brettschneider, a constitutional scholar who focuses on the role of oaths of office in the constitutional scheme, says these two oaths complement one another.

“That second oath doesn’t replace the first,” Brettschneider tells me. “It clarifies it.”

In acting as jurors, Brettschneider says, senators are supposed to answer “the specific question” of whether the president is guilty of “high crimes and misdemeanors.”

“Trump tried to subvert a free and fair election by spreading disinformation, trying to force public officials to overturn the results and riling his supporters up to attack the Capitol,” Brettschneider continued. “That is about as paradigmatic a high crime as one can get.”

When senators are in the role of jurors, Brettschneider continues, the two oaths interlock to set the terms of their “constitutional duty,” which precludes operating out of “partisan loyalty to a president.”

In other words, it’s either the former or the latter. The choice is not just about whether they are going to be “loyal” to Trump or not. That idea actually undersells the extraordinary dereliction of duty GOP senators will be committing if and when they vote to acquit.