Why Trump’s defense team failed miserably

The second impeachment trial of Donald Trump got underway on Tuesday with arguments about whether the US Senate has jurisdiction to try the former president now that he has left office. Most legal scholars, regardless of political ideology, believe it does. But impeachment is a political rather than a legal process, so a debate and vote on the issue took up the first day of the trial.

Trump’s lawyers, Bruce Castor and David Schoen, had two very different tacks to make their case that the former president cannot be tried: Castor served up off-the-cuff babbling — at one point reminiscing at length about listening to a record of Sen. Everett Dirksen of Illinois, who served in the Senate in the 1950s and 1960s — while Schoen went straight for the jugular, accusing Democrats of “weaponizing” the process for their own partisan purposes. But though their approaches differed wildly, their goal was the same: to undermine and discredit the impeachment process itself. In doing so, they played into a tactic Republicans have been wielding for decades.

Castor, no doubt knowing he had more than 40 Republican votes regardless of what he said, took the opportunity to say nothing coherent at all. While that underscored the weakness of Trump’s case, it also underscored that no argument would change the ultimate outcome: Whatever the lawyers say, Republicans are largely uninterested in holding Trump to account. So, no argument is precisely what Castor delivered.

Schoen, on the other hand, opened not by laying out a legal argument but attacking “the insatiable lust for impeachment in the House for the past four years.” Acting as though he were Fox News’s Sean Hannity delivering his opening monologue, he then showed a video mashup of Democrats calling for Trump’s impeachment over the past four years. (Of course, the video did not reveal the underlying offenses Democrats were accusing Trump of committing.)

“This is nothing less than the political weaponization of the impeachment process,” Schoen snapped, “pure, raw sport, fueled by the misguided idea of party over country.” The impeachment, he then suggested, was itself an attack on democracy, an effort to overturn the votes of the 74 million Americans who had voted for Trump in the 2020 election.

Such arguments are not new. Conservatives in the 1970s made the same sorts of arguments about former President Richard Nixon and the Watergate hearings, insisting that it was an effort by Democrats and the liberal media to overturn Nixon’s landslide election in 1972 and silence the “silent majority.” They called it the “criminalization of politics” and leaned hard on the idea that Nixon had done nothing worse than any other politician — certainly nothing worse than his Democratic predecessor, Lyndon Johnson, who they believed to be one of the most corrupt politicians of his generation.

Since then, there has been a concerted effort on the right, led by former House Speaker Newt Gingrich in the 1980s and 1990s, to weaponize and weaken the processes meant to hold politicians responsible for their actions. Gingrich leveraged ethics rules to unseat Democratic Speaker Jim Wright in 1989 (less than a decade later Gingrich himself would be ousted, in part, for ethics charges, which he apologized for after an ethics subcommittee ruled against him). As Speaker, Gingrich used all the mechanisms at his disposal to endlessly investigate former President Bill Clinton, culminating in a partisan impeachment with little public support.

The same process repeated itself when former President Barack Obama took office: endless investigations that unearthed little wrongdoing, a contempt of Congress charge against then-Attorney General Eric Holder (who was cleared by a subsequent Inspector General’s report), and a desire — ultimately unfulfilled — to impeach Obama.

At the same time, Republicans have learned that if they refuse to censure their own, they can make any accountability appear to be a partisan vendetta. That’s what happened in Trump’s first impeachment, when Utah Sen. Mitt Romney became the only Republican to vote for impeachment or conviction. It is a sign of just how awful the insurrection at the Capitol was that 10 Republicans broke party ranks and voted to impeach last month.

But the right is preparing to weaponize all this against Democrats the first chance they get. Hannity has already suggested that, if rules were equally applied, President Joe Biden, Vice President Kamala Harris, Senate Majority Leader Chuck Schumer, and California Rep. Maxine Waters should all be impeached for inciting insurrection — an argument that both attacks Democrats while diminishing the severity of the insurrection at the Capitol.

And after seeing a mostly-Democratic US House of Representatives majority strip Georgia Rep. Marjorie Taylor Greene, a conspiracist who supported calls for violence against members of Congress, of her committee assignments, House Minority Leader Kevin McCarthy warned that Democrats were setting a “dangerous precedent” — insinuating that when Republicans controlled the House, they could begin stripping committee assignments from any Democrat they deemed problematic.

Yet even though they know such bad-faith attacks are coming, Democrats in Congress must continue to make the case against Trump for his role in inciting the insurrection at the Capitol. They may not be able to convince Republicans in Congress, but they can make clear to the American people, and to posterity, that they understand the danger Trump represents to democracy and are willing to do what they can to hold him to account.