The Dominoes of Impeachment – Part 4 – Why Conviction Is Possible

Broken eagle found by Congressman Andy Kim while cleaning the Capitol after the insurrection. a reminder of the enormous work ahead to heal. Healing won’t start without accountability. See:

The political pundits continue to broadly proclaim that there is little chance that Donald John Trump will be convicted in the currently ongoing impeachment trial, despite overwhelming and damning evidence that illustrates his guilt in fomenting insurrection against the government of the United States of America — as clear an impeachable and convictable offense as one could imagine. Today I’ll take a look at why the pundits could be wrong and why there is at least a reasonable chance that Trump will in fact be convicted.

Let’s take it by the numbers…

1) The outcome of this trial is a political deliberation, not a decision of guilt or innocence by a courtroom in a manner even remotely similar to a criminal trial judged by a jury. Trump could stand on the floor of the Senate, clearly admit his guilt in trying to overthrow the US government, and still be acquitted if enough of the senators think it is in their best interest to acquit him.

2) Virtually all of the Republican senators, even those needing the support of Trump and Trump’s base to further their own political ambitions, realize Trump is guilty and don’t ever want to see Trump being able to run for the presidency ever again. But they also don’t want to vote against Trump, because it would alienate Trump’s base of voters, who they see as crucial for their own reelection, and in some cases, their own presidential aspirations. But at the same time, Trump’s guilt is so clear and egregious that they also don’t want to be on the record as acquitting him either, particularly knowing that additional evidence of the traitorous horrors that Trump committed while in office are likely to be forthcoming over the coming months.

3) It is commonly stated that even if all 50 Democratic senators vote to convict Trump it will still take the votes of 17 Republican senators to reach a conviction. But this isn’t really true. It is only correct if all 100 senators show up for the vote. The actual constitutional requirement is that the votes of two-thirds of the senators present are needed to convict.

4) Forty-four of the Republican senators voted this week indicating that they don’t believe that the Senate has constitutional jurisdiction in this case, even though they know very well that it does. Their position on this issue is disingenuous.

They voted this way in part because they didn’t want the trial to proceed and put them in the position of having to choose between doing their duty under the constitution to convict Trump and support democracy… or alternatively risk the alienation of Trump’s support base by voting to convict. But they also did it to give themselves cover for finding a way out of this dilemma… namely, to give them cover to boycott the vote.

5) If Trump is acquitted, then Senate Minority Leader Mitch McConnell surely realizes that such an outcome would risk fracturing the Republican party. At least a few of the Republican senators might also decide that they won’t stay in a party that refuses to hold Trump responsible for what he fomented. Lisa Murkowski, Mitt Romney, Ben Sasse and possibly others could potentially leave the party and go Independent and caucus with the Democrats for the next two years. Doing so would substantially weaken McConnell’s power, and also lessen the chance he will regain control of the Senate in 2023. McConnell is strongly motivated to not let this happen.

6) So what is the way out of this conundrum for the Republicans? It is for McConnell to tell his fellow Republicans that if they don’t want to go on the record as convicting, and if they don’t want to go on the record as acquitting, then they can “conscientiously” boycott the vote based on their stated position that the deliberations are unconstitutional. In fact, giving his colleagues this cover is almost certainly the reason why McConnell joined in voting that the Senate lacks jurisdiction, even though he has publicly denounced Trump for instigating the insurrection.

So, for example, if 54 senators vote to convict, 27 vote not to convict, and 19 are not present and boycotting the vote, Trump will be convicted and then the Senate will vote to prevent him from ever holding office again. This hypothetical scenario only requires conviction votes from four Republican senators. If there are eight Republican votes to convict, then only 13 Republicans would need to boycott the vote to get a conviction. CNN in fact reported that at least 15 Republican senators were not present a one point in the trial today, possibly foreshadowing what might occur on the day of the actual vote to convict or acquit.

7. This past month has been dreadful for the Republican party. The New York Times found that in January alone 140,000 people decided to leave a Republican party that seems to be embracing the overthrow of democracy. If not enough Republican senators signal that they will convict or boycott the vote by this weekend, then the optimal strategy for the House impeachment managers to get a conviction is simply for them to start calling witnesses and not stop embarrassing the Republicans until they have enough votes to convict.

So far, Raskin and the other House impeachment managers have largely held off on discussing the complicity of some of the senators, like Josh Hawley, Ted Cruz, and Lindsey Graham, in spreading lies that the election had been marred by massive fraud. They have not yet subpoenaed many witnesses, including Mike Pence, Donald Trump, and Lindsey Graham, who could be forced to attest to additional wrongdoing. In some cases, such witnesses could be forced to either additionally admit guilt of their own wrongdoing or take the Fifth Amendment.

The Senate has not yet voted to decide if they will hear witnesses in this trial… that vote is still upcoming. The Democrats have the votes to compel it. To manage the process of hearing witnesses, and perhaps also the court process of compelling witnesses to testify, without overly disrupting Senate business, they might pause the full trial while assigning much of the witness-related work to a Senate committee, and then resume the full trial after the (potentially lengthy and very embarrassing to the Republicans) witness phase is complete. This provides further incentive for the Republicans to avoid such a situation by signaling that they will either convict or boycott the vote by this weekend.

None of this may come to pass, and Trump may be acquitted this weekend. But it is also quite feasible that he will be convicted or that the trial will be extended and drawn out significantly as the Republican party continues to suffer significant damage. The House impeachment managers must continue to signal that they will not relent by ending the trial quickly unless the Republicans signal that they will find a way to help deliver a result supportive of American democracy.

Cliff Kurtzman
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