The GOP's Jury Nullification
Day One of Impeachment 2.0
If you have not yet done so, please stop what you are doing and watch the video that House managers tried to get senators to watch yesterday.
It is a graphic timeline of a president instigating a violent attack on Congress to stop the counting of votes and hold onto power. It is disturbing and shocking, but it’s meant to be, because one of our major political parties is trying to drop what happened into a memory hole.
Go ahead and watch. I’ll wait.
The video was really the heart of the House’s case on the first day of Trump’s second impeachment trial.
Then came the ex-president’s defense, presented by the eminent law firm of Ramble, Blather, and Shout, LLC.
Mere words and even video clips cannot capture the full inanity of what it was like in real time, as attorney Bruce Castor meandered, faltered, dithered, digressed, pretzeled, and wandered into dark corners of incoherence.
Surely, surely, even the most jaded viewer kept thinking, he will eventually get to the point. Any point.
He was followed by his partner in impeachment, David Schoen, who sought to compensate for Castor’s marathon of ineptitude by speaking VERY LOUDLY and, for reasons not at all clear to anyone, reading Longfellow’s “The Building of the Ship”. Badly.
The whole thing made My Cousin Vinny look like Clarence Darrow.
The lawyering was, in fact, so awful, that it seemed for a moment to unite a bitterly divided country. Trump himself was reportedly “enraged” at his lousy defense. Senators were baffled. Lindsey Graham said that Castor “didn’t really know where he was going”; Ted Cruz thought it wasn’t “effective”; Pat Toomey said, “I don't think it was very persuasive.” Even Trump loyalist Alan Dershowitz was gobsmacked.
And making it so much worse was the contrast with the presentation of the House managers, including Rep. Jamie Raskin, who played the 13-minute video and made a case that was both powerfully reasoned and impassioned.
The Trump lawyers would have looked inept in any context, but coming after the powerful House case seemed to underline in the most cartoonish way possible the reality that Donald Trump really has no good defense.
His conduct can’t be defended. His constitutional argument was specious. And he brought before the Senate some of the worst lawyers in the world.
But it was enough.
As bad as it was, the clownish quality of the lawyering served to highlight the way that both Trump and Senate Republicans were shrinking and trivializing the moment. All but six GOP senators ignored what they had just seen and heard.
Forty-four of them voted to throw out the case against Trump.
The only surprise was that one Republican senator, Bill Cassidy of Louisiana, was actually paying attention and changed his vote to allow the trial to proceed. Afteward, he said:
If anyone disagrees with my vote and would like an explanation I ask them to listen to the arguments presented by the House Managers and former Pres. Trump’s lawyers. The House managers had much stronger constitutional arguments. The president’s team did not.
But the rest of the jurors had clearly already had their minds made up, and not even the worst, thinnest, and most disingenuous defense made any difference. Some senators did not even bother to pretend they were paying attention.
This much was clear: The evidence won’t matter. The arguments won’t make a difference. The constitutional precedent will be brushed aside.
The GOP is essentially engaging in jury nullification.
And, as a result, this could all happen again.
That is, after all, the point of this trial: not merely to hold Trump accountable for his attempted coup, but to draw a bright red line of deterrence to any future would-be anti-democratic fascist who might be tempted to try the same thing.
A guilty verdict — by definition bipartisan — would be an indelible historic marker. It would be a recommitment to the sacredness of the peaceful transfer of power and an unambiguous condemnation of the use and threat of violence to overturn an election.
But one way or another, the Senate’s verdict will set a precedent. Are presidents above the law? Can one branch of government orchestrate an assault on another? What are the consequences for attempting to seize power through a coup?
Right now, it looks like we will get a result that Trump and his allies will spin as an exoneration.
So, it will happen again, and perhaps sooner than we imagine.
This fight isn’t over. The struggle ahead won’t merely pit right versus left, but democracy versus authoritarianism; truth versus the culture of lies. More than ever, we need voices who will push back, speak truth, and stand up for the values that still unite us.
And we are here for it. Please consider joining us at Bulwark+
This has been a long time coming. “You cannot grasp the rise of [Marjorie Taylor Greene in the Republican Party without understanding Trump’s role; and you can’t understand the Capitol riots of Jan. 6 without understanding the way that Trump has normalized conspiracy theories, paranoia and violence on the right.”
Because while House managers are unlikely to repeat them during the impeachment trial — constrained as they are by time and impatient Republican senators — these falsehoods repeatedly primed both the public and lawmakers for Trump’s biggest lie of all. By draining the truth of any real meaning and elevating some of America’s most dangerous far-right extremists, he set the stage. Then all he had to do was wait for the lights to go up.
Importantly, Republicans in Congress went along with him, even as his falsehoods became more flagrant and his tactics more extreme. By Jan. 6, they had long since become accustomed to tolerating Trump’s fabulism, looking the other way as he stoked division and flirted with violence.
1. Bruce Castor: The Disaster Artist
If Trump could be defended on the merits, he would be. And if he’d been a less dangerous demagogue, then he would have been able to get a better lawyer to take his case.
The reality is that almost none of Trump’s defenders are attempting to defend him on the merits. Marco Rubio is pretending to be upset that the Senate isn’t working on other things. Lindsey Graham and Sean Hannity are pretending that equally impeachable things were done by Eric Holder, Cory Booker, and Maxine Waters (just to pick three Democrats completely at random). Rob Portman says what Trump did was bad, just not bad enough to do anything about.
So what we have is an impeachment trial where both sides are more or less stipulating that Trump’s actions are indefensible. But Republicans can’t say that out loud, because they live in fear of their own voters.
2. Why Jamie Raskin’s Speech Resonated
In seeking to overturn the election and then inciting an insurrection, Trump attacked the physical forms and structures of American government. But the crowd that stormed the Capitol also struck at its intangible heart. If Raskin’s speech resonated with many who listened, it was because they shared his sense that what happened on January 6 wasn’t just a crime—it was an act of sacrilege.
Rand tells us who he is.