Dereliction Of Duty

As expected, Donald Trump was acquitted of incitement of insurrection when 43 Republican Senators basically ignored the evidence and their oaths to the Constitution simply because of the fear of retribution, both political and apparently physical, from Trump, his base, and the paramilitaries that have become an extension of the Trump Republican party. The evidence against Trump was overwhelming. He refused to accept the results of the election, making spurious accusations of fraud and theft. He attempted to force state election officials to change the results in his favor. He invited the insurrectionists to the Capitol. He changed the date and the time of the rally so that it coincided with the vote to certify Biden’s election. He incited the crowd and instructed them to go to the Capitol to fight for their country. He refused to provide protection against the insurrectionists when asked even by members of his own party and he further inflamed the situation by attacking Vice President Pence even as the mob was pursuing him in order to execute him in front of the Capitol. Trump’s intent was not just to delay the certification vote, but to prevent it by decapitating the line of succession and the legislative leadership.

As Jamie Raskin noted, dereliction of duty is built in to the article of impeachment charging Trump with inciting insurrection. That dereliction of duty was perhaps one of the lesser violations of our Constitution perpetrated by Trump. But it is one of the more egregious violations of the 43 GOP Senators who voted to acquit. The weakness of the rationales provided by those 43 for their votes showed that there really could be no legitimate defense of Trump’s conduct . A few, like Marsh Blackburn, claimed impeachment was just “about humiliating the individuals that supported President Trump”. Others, like Roy Blunt engaged in whataboutism, saying, “You had a summer where people all over the country were doing similar kinds of things”. But most, like Minority Leader Mitch McConnell, claimed that it was unconstitutional to impeach someone who had already left office, which was pretty rich since McConnell himself delayed the Senate trial until after Biden’s inauguration. In addition, as Republican Richard Burr pointed out in explaining his vote to convict, the Senate already decided the impeachment was constitutional just four days ago. As Burr states, “the Senate is an institution based on precedent, and given that the majority in the Senate voted to proceed with this trial, the question of constitutionality is now established precedent. As an impartial juror, my role is now to determine whether House managers have sufficiently made the case for the article of impeachment against President Trump”. McConnell, the supposed legendary defender of the institution of the Senate, brazenly ignored that precedent. Finally, perhaps the weakest excuse was that Trump’s incendiary rhetoric was constitutionally protected political speech.

On the one hand, this is only the second time in impeachment history that there have been bipartisan votes to convict, both impeachments of Trump. Seven Republicans votes for conviction this time is an extraordinary rebuke, representing the largest number of a President’s own party to vote for conviction in the four impeachment trials in our country’s history. In addition, those 57 Senators voting to convict actually represent over 61% of all Americans and nearly 77 million more Americans than the 43 that voted to acquit. On the other hand, Republicans made a mockery of the trial, with three Senators, Cruz, Graham, and Lee, openly strategizing with the defense team that itself lied in its presentation and presented puerile arguments in Trump’s defense. And still 43 Republican Senators voted to acquit. As Chris Murphy asks incredulously, “He [Trump] tried to bully state officials into overturning the election. When that didn’t work, he organized a violent mob on the day of the vote count in Congress, riled it up and sent it to the Capitol. When the violence began, he celebrated. If that’s not impeachable, what is?”.

Mitch McConnell vividly illustrated the hypocrisy of the 43 Republicans and their dereliction of duty when, after having voted to acquit, he delivered a speech in which he openly admitted that the House impeachment managers had proved their case while still pretending that his sole reason for acquittal was the unconstitutionality of the process even though that issue had already been clearly decided by the Senate just days ago. Said McConnell, “Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty…There is no question that President Trump is practically and morally responsible for provoking the events of that day”. But McConnell, like his 42 accomplices in promoting the Big Lie for Trump, still could not hold Trump accountable and, as he has done so often in the past, demanded that Democrats clean up the mess that Republicans had made. In that vain, he continued, “Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were ‘still liable to be tried and punished in the ordinary tribunals of justice’. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one”. McConnell is basically daring Biden’s DOJ to go after Trump.

Indeed, it will be up to the Democrats to investigate all the details of Trump’s attempted coup, whether through congressional committees, Biden’s DOJ, and/or individual state Attorney Generals. Whether Democrats have the will to do so remains to be seen. Certainly, they had an opportunity to call witnesses in the impeachment trial on Saturday and remarkably decided to pass on that opportunity, providing conflicting rationales for doing so but mostly relying on the need to move forward with the Democratic agenda. Certainly, the House managers were able to prove their case without witnesses. Whether that turns out to be the politically correct decision remains to be seen, but it was a disservice to the American people and to history to not get witnesses on the record.

The saga of the one witness statement that was read into the record highlights both the lack of a detailed investigation and the current criminality of Trump’s Republican party. Republican Representative Jaime Herrera Beutler had already told her local newspaper about Trump’s refusal to help those inside the Capitol when Minority Leader McCarthy called. That story went largely unnoticed until Herrera Beutler issued a statement detailing the call and asking others to come forward with relevant information on Friday night. Her testimony was not new but became news only because the major networks got a hold of her statement.

But getting any witnesses to actually testify in the Senate against Trump was problematic because, as Daniel Goldman explains, “The reality is that Trump has created a dynamic through the Ukraine whistleblower and Ukraine witnesses where his domestic terrorist supporters threaten violence against witnesses against him. This fear is real and it is a huge problem. This should be everyone’s focus…Beutler’s public statement was very helpful because it confirmed Trump’s sociopathic disregard for the line of succession in the Capitol…Beutler endured open witness intimidation from colleagues and probably others — that should be the story.” In fact, we know that fear kept some GOP members of the House from voting to impeach Trump and probably many others in both the House and the Senate who remain silent about such pressure.

In their own way, Democrats have been derelict in their duty to hold Trump and his administration to account. That would seem incongruous considering the fact that Trump has been impeached twice. But there are so many areas — emoluments, pay-to-play for government actions and positions, witness tampering, etc. — that House Democrats passed up real oversight of the Trump administration over the last two years. They avoided taking action on Mueller’s report of Trump’s coordinating the hacking of the 2016 election with the Russians and his subsequent obstruction. They kept the Ukraine impeachment as narrow as possible. And now, along with Senate Democrats, they have so far passed on the opportunity to determine the sordid details of the planning and execution of Trump’s attempted coup.

However, the lesson from this impeachment is not that Democrats didn’t pursue Trump hard enough again. No, the most important lesson Democrats need to learn from this impeachment is that the Republican party is no longer a partner in democratic governance. The majority of the GOP has agreed that a violent coup to keep Trump and Republicans in power was legitimate. The majority of the GOP supported the attempt to overturn the election even after that violent attempted coup failed. As Greg Sargent writes, “Democrats must accept the full implications of the GOP’s ongoing and intensifying radicalization. And they must be prepared to act upon them…In some fundamental sense, much of the GOP is no longer functioning as an actor in a democracy”.

That not only means that Democrats alone, with perhaps help from a handful of Republicans, are now responsible for saving our democracy from an authoritarian cult but also that Democrats must strip away the current institutional advantages provided to the anti-democratic Republican party. That means abolishing the filibuster to restore true majoritarian rule in the Senate. It means passing electoral reform to end extreme partisan gerrymandering and rampant voter suppression. It means adding Washington DC as a state and perhaps also Puerto Rico. And it means considering an effort to expand the size of the House of Representatives. In addition, Democrats must restore the power of Congress to actually enforce its subpoenas and prevent the extensive delaying tactics used by witnesses to avoid testifying.

All of these can be done by Democrats alone. Yes, it will mean that some Democrats may have to sacrifice some of their power or even their own seats in order to save our democracy from an authoritarian party that believes only in its own power from gaining control of the government, perhaps for years to come, in two to four years. But for Democrats to do otherwise will be the ultimate dereliction of duty.

Originally published at on February 15, 2021.

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