Now that Joe Biden has been sworn in as the 46th president, Democrats and the corporate press have turned their attention back to Donald Trump’s impeachment trial in the Senate, which will likely begin next month.
Senate Democrats will need 17 Republicans to join them in order to convict Trump on the single impeachment charge of “willful incitement of insurrection.” Although Democrats might get a few GOP members like Minority Leader Mitch McConnell and Sen. Mitt Romney to join them, it’s unlikely they’ll get many more. That would mean Trump’s second impeachment ends up like his first: a pointless exercise in partisan politics.
That would be fitting, because that’s exactly what this second impeachment effort is. House Speaker Nancy Pelosi knows it, McConnell knows it, and the American people know it.
Surprisingly, though, some conservative commentators don’t seem to know it. Consider the case for convicting and disqualifying Trump recently put forth by Dan McLaughlin at National Review. After some caveats and throat-clearing, McLaughlin’s argument boils down to this: Trump should have known that claiming the election was rigged would inspire a small group of protesters to storm the U.S. Capitol on Jan. 6. Therefore, he bears “moral and political responsibility for inspiring the Capitol riot, and for putting a target on Mike Pence’s back.”
That’s quite the claim, especially since Trump explicitly called for a peaceful march from the White House Ellipse, where he spoke, to the Capitol grounds, where a number of permitted events were planned and hundreds of thousands of protesters gathered. I spoke to some of them, several of whom had traveled great distances to make their voices heard.
They had no idea that a misguided few were planning to force their way into the Capitol, no matter what Trump said. All of them expressed shock and disgust that it happened. None of them condoned it, and neither did Trump, who later that day called on all the protesters to go home and the next day condemned those who fought with police and stormed the Capitol.
For some on the right, Trump’s calls for peace and order were too little, too late. They smacked of Biden’s weak denunciations of Black Lives Matter (BLM) violence this summer. But it’s one thing to say it was too little too late, or that Trump should have toned down his rhetoric, and quite another to claim that he incited the rioters and to convict him on that basis. The stakes are high here, so the standard for conviction must also be high.
So when McLaughlin says Trump is responsible for inciting the Capitol riot, what standard is he using? By his own admission, it’s not a legal standard, which requires specific intent to produce “imminent lawless action.” Is he saying Trump somehow knew what would happen when the protesters marched to the Capitol, even though it caught almost everyone else by surprise?
No, McLaughlin is using what we’ll call the “taken together” standard. He admits that no single thing Trump did or said after the election is an impeachable offense, but that his actions in the two months after the election taken together constitute a violation of his Oath of Office.
But this is really no standard at all—or rather it’s such a plastic standard it could be bent to fit just about any accusation of incitement or reckless endangerment, however far-fetched. You could even—as a group of Senate Democrats did last week—accuse Sens. Ted Cruz and Josh Hawley of having some part in the “insurrection” simply because they formally objected to the certification of the Electoral College vote and called for a commission to investigate election fraud. They might not be legally responsible, goes this argument, but their actions taken together mean they’re at least complicit in what transpired.
That’s nonsense. It boils down to arguing that because people feel strongly about elections, Trump should have toned down his criticism of election fraud because some radicals in his party might get crazy ideas about storming the Capitol. But if Trump really believes the election wasn’t fair, as millions of Americans do, he has a right, and arguably a duty, to speak out about it.
Democrats certainly have no compunction about speaking out (and sometimes taking direct action) about similarly explosive issues. Vice President Kamala Harris raised funds to bail out BLM arsonists and looters in Minneapolis. Should Congress hold her responsible for widespread destruction in that city over the summer?
Pelosi called federal officers in Portland “stormtroopers” back in July and said they “must be stopped” even as violent riots were shaking the city. Did she put federal officers in danger? (Former Attorney General William Barr thinks she might have.)
What about Biden himself? During a presidential debate, then-candidate Biden said Antifa was just an “idea” even as Antifa thugs were besieging the federal courthouse in Portland and attacking federal law enforcement officers there. Should he be impeached for “inciting” that “insurrection”?
Of course not. And neither should Trump.
Trump Was Well Within His Rights to Complain About the Election
In a way, all this boils down to whether one thinks concerns about election fraud are real or just a bunch of conspiracy theories that stupid people believe because Trump told them so. Democrats and the media, along with Big Tech and our entire elite class, believe the latter. They remind us of it constantly.
By contrast, Trump, Cruz, Hawley, and tens of millions of American believe the November election was riddled with voter fraud, illegal electioneering, unconstitutional interference from judges, and local election officials’ refusal to enforce state election laws.
The impossibility of bridging the gap between these two realities was captured well in a recent exchange between CNN’s Erin Burnett and Rep. Nicole Malliotakis of New York. At one point, Burnett said: “Those tens of millions of Americans think it wasn’t fair because Donald Trump told them that. And that voice of Donald Trump was amplified by other people in power, okay? Because the reason they don’t think it was fair is because someone told them it wasn’t fair. And it was fair.”
It’s hard to believe that Burnett really believes the only reason tens of millions of Americans think the election was unfair is because Trump said so, as if they’re all brainless rubes with no access to news or information about the election. But I’ll take her at her word, which represents the view of the entire corporate press, the Democratic Party, and vast swaths of the mainstream American left.
The problem with this view, besides the seething contempt it shows for half the country, is that it’s impossible to have a productive debate, much less come to a reasonable compromise, with someone who holds it. The November election was indeed marred by fraud and irregularities, the predictable results of loosening election-integrity laws and recklessly expanding mail-in voting. The pandemic was the perfect excuse to conduct what amounted to an unprecedented experiment with mass mail-in voting, and Democrats used it to their benefit. Those are facts.
Maybe it was enough to change the outcome of the election, maybe not. But for Democrats and the media to say there’s no reason whatsoever to talk about election integrity or draw attention to these issues by protesting, and that the only reason anyone is worried about it is because Trump told them a lie, is unserious in the extreme. It amounts to a refusal to engage with reality.
You Can’t Convict Trump Because You Think He Was Imprudent
Refusing to engage with reality is commonplace on the left, but the right should know better. Once you admit, as most conservatives have, that there were in fact major problems with election integrity in November, and that we’d better find out the extent of the problems and fix them so Americans can once again have confidence in our elections, you’ve also tacitly made the case that Trump was right to speak out about it.
You can think Trump went about his post-election grievance-airing in a tragic, self-destructive way, or that he should have pressed his case in a less caustic manner, but to say that he should be impeached and convicted because he didn’t press his case in just the way you prefer isn’t the application of any “standard,” much less a compelling reason to convict on something as grave as impeachment.
Reasonable people can disagree about how Trump reacted to the election and all that came after, just as they can disagree about the prudence of protesting at the Capitol on the day Congress certified the results of the Electoral College vote. I wouldn’t have gone to that protest, but I understand why others did, and I understand why Trump kept talking about election fraud, especially on that day.
McLaughlin says the Capitol riot “took direct aim at that central pillar of our American system.” Insofar as it concerns the riot, that’s true. But the peaceful protest Trump called for on Jan. 6 drew hundreds of thousands of Americans who marched to the U.S. Capitol not to storm it or change the results of the vote, but because they believe one of the central pillars of our American system—the peaceful transfer of power through free and fair elections—is rotting, and if we don’t fix it the whole house is going to come down.