Probably not since the darkest days of Jim Crow have we seen a supposed trial where the jurors were not only actual accomplices to the crime but also witnesses who were also actively working with one of the legal teams involved. Last night, three Republican Senators, Graham, Cruz, and Lee, met for over an hour with Trump’s impeachment defense team in what Cruz admitted was a discussion about the “strategy for tomorrow…in terms of where the argument was and where to go”. Cruz, in particular, was a direct accomplice to insurrection, joining Hawley and nine others in promising to challenge the certification of Biden’s election.

It seems clear that the Republican Senators committed to acquitting the former President will hang their hat on one and/or two theories. Based on the powerful presentation of the House managers, their weakest defense is that Trump’s words at the rally, while provocative, were not an actual incitement to violence. That leaves the canard that impeaching a now private citizen may be unconstitutional as the best option for acquittal. The problem with that theory is that the Senate just debated this issue less than three days ago and decided by a 56–44 vote that impeaching a now private citizen was indeed constitutional. By using the unconstitutionality defense, the Republican Senators are defying the Senate itself. As Daniel Goldman notes, “If Senate votes are to mean anything, then today’s vote rejecting a legal challenge to its jurisdiction should conclusively decide that issue and prohibit any senators from relying on that (now-rejected) legal argument when weighing the factual merits of the impeachment charge”.

Back in 1954, Joseph Welch demanded of Joe McCarthy, “Have you no sense of decency?” The same question has been asked of these Republican Senators today and they have answered. What is remarkable is the lack of any pretense about respecting their oaths as jurors, respecting the vote of the Senate itself, even respecting the Constitution and our democracy, all in pursuit of maintaining their own political power.

Originally published at https://thesoundings.com on February 12, 2021.

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