The Constitution demands that any conviction requires a two-thirds majority, which means that even if all 50 Democrats find Trump guilty, they still need 17 of the 50 Republicans to join them. This is unlikely.
In his book, Rage, published last autumn, his second on the Trump presidency, Bob Woodward (of Watergate/Nixon fame) quotes Donald Trump’s son-in-law, Jared Kushner, advising people that one of the most important guiding texts to understand the Trump presidency was from the classic children’s novel Alice in Wonderland. As you may know, this is a fantasy novel by Lewis Carroll about a young girl who enters a surreal world by going down a rabbit hole. Kushner paraphrases the Cheshire cat as the character in the novel with a strategy most like Trump’s: “If you don’t know where you’re going, any path will get you there.”
Perhaps Kushner’s extraordinary use of Alice in Wonderland as a metaphor for Donald Trump’s four years in power was more apt than he intended. After all, following the 2016 election the White House became a surreal “Donald in Wonderland” world where “alternative facts” were the norm and America entered the world of “alternative reality”. Donald Trump’s goal, even before he became President, was far more ambitious than to use mere “alternative facts”. It was to annihilate the distinction between truth and falseness, to make sure that we no longer share facts in common, and to overwhelm people with misinformation and disinformation. In sum, it was to induce epistemological vertigo on a mass scale. The former President’s brazen assaults on truth were jolting at first, but they soon became the norm with his followers, almost without exception, standing behind him for the full term. Republican officeholders soon calculated that giving voice to their consciences was not worth incurring the wrath of the Republican base. It was easier, less wearying and a lot less hassle to fall into line behind Donald Trump. They still do.
After an election which he clearly lost, a delusional Trump still inhabiting his surreal world, insists he won, even after more than 86 lawsuits on the matter were filed and lost. Despite assurances from his own department of Justice and Homeland Security that no serious fraud occurred, Trump has raged against the election result and mounted the relentless campaign to reverse Joe Biden’s 306-232 Electoral College win. The problem with rage is that it’s contagious. Rage can cause riots and kill. Listen to Trump’s words on 6 January when addressing the crowds of adoring supporters in the Ellipse, a park near the White House. In an hour-long rant of grievances against the election, the media, the Democrats and more, he whipped up the crowd on what he called the “most brazen and outrageous election theft”: “Now it’s up to Congress to confront this egregious assault on democracy. After this we’re going to walk down Pennsylvania Avenue to the Capitol and I’ll be there with you. You have to show strength, and you have to be strong.”
The whole world saw what happened next as angry crowds, many wearing bullet-proof vests and carrying weapons, stormed the US Capitol yelling “President Trump sent us”, “Hang Nancy Pelosi and Mike Pence” and “Traitor, Traitor, Traitor”. Politicians and staff members were forced to barricade themselves in offices to hide from the rioters, terrified for their lives. Five people died and numerous others were injured as a result of the invasion of the seat of government in a country normally an exemplar of democracy at its finest.
As a result of his alleged incitement, few were surprised when Donald Trump was impeached—for the second time. Since George Washington became America’s first President in 1789, there had only been two impeachments; Trump has doubled that figure in just four years. But it’s unlikely he will be found guilty in the trial due to start in the Senate on Tuesday. Here’s why.
Imagine that you are going for trial before a judge who is your friend, as is half the jury. That was the situation a year ago when Trump was impeached for the first time, charged with abuse of power and obstruction of Congress in his dealings with Ukraine. At the following trial in the Senate the cards were stacked heavily in his favour. The Senate refused to call any evidence or witnesses and his fellow Republicans, who dominated the proceedings and who were too terrified for their careers to do otherwise, spinelessly voted to find him not guilty. The impeachment trial was a farce.
This time the situation is different. The Senate now has an equal number of Democrats as Republicans, so the “jury” is balanced with the casting vote in the hands of Vice President Kamala Harris, a Democrat and not known to be an admirer of Donald Trump. However, the Constitution demands that any conviction requires a two-thirds majority, which means that even if all 50 Democrats find Trump guilty, they still need 17 of the 50 Republicans to join them. This is unlikely. Trump and his defenders have already argued that the case is unconstitutional because he has now left office. In a procedural motion a week ago, the Senate voted to reject that argument, but the 45 Republicans supporting the argument suggested that there will be more than the 34 votes Trump needs for acquittal.
Lawyers for both sides have filed their papers in readiness for the trial. In their 80-page document, the Democrats argue that the root cause of the riot was Trump’s refusal to accept the result of the election. “Instead of conceding his electoral defeat, President Trump’s speech drove the crowd into a frenzy and aimed them like a loaded canon down Pennsylvania Avenue.” The Democrats claim that Trump knew they were armed, angry and dangerous, primed ready for violence. Trump’s legal team, by contrast, is more sparing in a 14-page filing that avoided dwelling on the drama and violence of the day. They claim that saying “fight like hell” was free speech permitted by the First Amendment, and Trump was really talking about “election security in general”. They also deny that Trump ever endangered national security and that, in any event, the trial is unconstitutional now that Trump has left the White House.
The case against former President Trump appears solid, particularly as court filings of his followers, 176 of whom have been charged with participating in the insurrection, confirm that they did it because “Trump told us to storm the Capitol—we did it to stop the steal!” Also, most constitutional lawyers have disagreed sharply with the argument that it would be unconstitutional to try a former President, saying that there is clear historic precedent for trying defendants who have left office and indeed Trump was still in office when he was impeached.
But this impeachment trial is not really about the law and the strength of any legal argument; it’s all about politics. The main hope of the Democrats is that a sufficient number of Republican Senators with a conscience will join them to find Trump guilty of incitement. If this happens, it would then be quite straightforward for the Senate to pass a motion by a simple majority to prevent Donald Trump from standing for election to any public body in the future, thus ruling out a run for the presidency in 2024. This could be rather attractive to some ambitious Republican politicians who themselves fancy a shot at becoming President. But there’s a snag. Donald Trump remains extremely popular in the Republican Party, at 81% according to a recent poll, and remains a powerful fundraiser for the party. He has made it perfectly clear that he harbours a deep-seated desire to punish those he believes have crossed him and reward those who remain loyal. So, when they vote, many Republican senators who are due for re-election next year, and who are not noted for their political courage, will be looking over their shoulders mindful of the consequences.
Unless there is a change of heart of some Senate Republicans after hearing the evidence, an unlikely scenario, former President Donald Trump will be safe from conviction in the coming weeks. As one lawmaker colourfully put it: “Trump could offer no defence or he could go on the floor to read lines from the Joker movie—they would still vote to acquit.”
To anyone who strongly believes in democracy, instead of quoting the Cheshire cat, a more appropriate paraphrase by Jared Kushner would have been a tweaking of Shakespeare’s Hamlet: “There’s something rotten in the state of American politics.”
John Dobson is a former British diplomat, who also worked in UK Prime Minister John Major’s office between 1995 and 1998.