Commentary: When Senate Tries Trump, Senate Republicans Are Also on Trial

 

When the Senate opens the second impeachment trial of President Donald J. Trump Tuesday there will be two defendants: Trump and the Senate Republicans.

Trump is charged with one count of inciting an insurrection against the United States, in connection with the January 6 mob that surged the Capitol, while Congress was in a joint session to certify the results of the Electoral College: “Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice President, interfered with the Joint Session’s solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.”

The verdict for the first defendant is preordained. The verdict for the second defendant is still to be determined – and as always depends on what the “coward’s choice” happens to be when the moment comes to its crisis.

In 2022, there are 34 Senate seats up for election, 14 held by Democrats and 20 held by Republicans. This means regardless on how the second trial goes, Senate Republicans will not get their verdict for just under two years.

When the final roll call is tabulated, Trump gets acquitted by roughly the same 45-55 margin as the January 26 test vote set up by his friend Sen. Rand Paul (R.-Ky.), when the senator forced his fellow lawmakers to vote his point-of-order as to whether or not it was even constitutional for the Senate to hold a trial for a private citizen. The motion was tabled, effectively killing it.

Roberts backing out of trial signals its constitutional thin ice

In a way, the constitutional question has already been conceded by Senate Democrats, when they acquiesced to Chief Justice John G Roberts Jr., declining to preside over a second impeachment trial. In his place, there was some speculation that Vice President Kamala Harris, the president of the Senate, would tapped to preside.

Of course, Roberts’ refusal to participate raises another question for future impeachment trials: What if the chief justice does not show up for the trial of a sitting president?

Right now, the coward’s choice for Roberts was to duck out, so that is what he is doing.

The Framers deliberately removed the vice president from this position in the Senate trial of the president, so as to remove the obvious conflict of interest. It follows that if the Framers did not spell out a procedure for the impeachment and trial of a former president, it is because they did not intend for it to be a possibility.

Senate Democrats had the option of demanding Roberts present himself for duty or sending the Senate Sergeant-at-Arms to produce him in shackles. Unfortunately, this will not come to pass, as delightful a spectacle it would be.

Instead, Senate Democrats took what was then the coward’s choice. They selected Vermont’s Sen. Patrick J. Leahy, the senior most of their caucus, and thus the Senate’s President Pro Tempore.

Leahy is an old leftist, who came to Washington in Democrat’s 1974 post-Watergate wave. As the President Pro Tempore, Leahy, despite the qualms of the Framers, is in fact third in the line of succession after the vice president and Speaker Nancy Pelosi (D.-Calif.), and just ahead of Secretary of State Anthony J. “Tony” Blinken.

Upon his selection as the presiding officer, Leahy pledged to carry out his duties without bias, which is absurd.

In his July 28 endorsement of Joseph R. Biden Jr. for president, Vermont’s senior senator said: “We must come together in order to defeat Donald Trump – the most dangerous president in modern history.” Hard to believe he has walked that one all the way back.

Trump’s second impeachment trial puts unique pressure on Senate Republicans 

This brings us to the Senate Republicans, for whom this trial has been put upon them by House Democrats and the remnants of the GOP establishment.

If Leahy, who proclaimed himself impartial, votes in the final roll call, Democrats sit with 50 votes, 16 short of the 66 they need to convict. Add the five wayward Senate Republicans and the whip count sits back at the 45-55 tally from the Paul test vote.

In that test vote, five Senate Republicans flaked, or to use a term from the Reagan-era, squished. They are: Maine’s Sen. Susan M. Collins, Pennsylvania’s Sen. Patrick J. Toomey Jr., Nebraska’s Sen. Benjamin E. Sasse, Alaska’s Sen. Lisa A. Murkowski and Utah’s Sen. W. Mitt Romney.

Paul and the others represent 90 percent of GOP senators, impressive until you consider that 95 percent of House Republicans voted against impeaching Trump this go-around.

Now, if somehow, Kentucky’s Senate Minority Leader A. Mitchell “Mitch” McConnell Jr.,  and his whip South Dakota’s Sen. John Thune had their way and 11 more GOP senators join the Democrats to convict citizen Trump, they will succeed in creating the legal conditions for barring the former president from holding federal office – like running for the White House again in 2024.

Trump could challenge this sanction as unconstitutional, because he is a private citizen and impeachment does not apply to him out of office, and also as a bill of attainder. A bill of attainder is a legislative sanction against a private citizen specifically forbidden by the Constitution.

Remember, that the Senate Republicans are also on trial, and if their leadership goes full-on Brutus on Trump, it will end for them, as it ended for Brutus: exile and premature death.

Many conservatives would welcome the end of the Senate wing of the Republican Party, which has been the throwing sand in their gears going back to President Richard M. Nixon, then out through President Ronald R. Reagan, Speaker Newton L. “Newt” Gingrich, the Tea Party, and Trump.

What better example of this is during the 2013 federal government shutdown, as McConnell conspired with President Barack Obama to stretch out the shutdown to embarrass conservatives, and Thune storming into McConnell’s office begging his leader to end the shutdown, because Obama shut off the lights illuminating Mount Rushmore at night, closed the gates to the park and blocked off roadside pull-offs, where tourists could see the monument.

If McConnell and Thune had it in them, they could convict Trump in an act of tremendous political courage. Fortunately for the GOP’s Washington colony of Senate staffers and consultants, there is no force on Heaven or earth powerful enough to force these two men to act on their personal, um, convictions. Trump won both Kentucky and South Dakota with 62 percent of the vote.

The coward’s choice for Senate Republicans is to acquit Trump and wait to see what happens in the 2022 midterms, then the 2024 presidential campaign.

Trump wised up to Thune too late, but at least now he is on the former president’s 2022 to-do list. Trump had already called for the state’s governor Kristi Noem to challenge Thune in the primary – and Thune, himself, has not formally committed to running again in 2022.

Also on the president’s Senate Republican revenge list for 2022 are: Indiana’s Sen. Todd C. Young, Missouri’s Sen. Roy D. Blunt and Oklahoma’s Sen. James P. Lankford.

Three anti-Trump GOP senators are retiring after this session: North Carolina’s Richard M. Burr, Ohio’s Robert J. Portman and Pennsylvania’s Patrick J. Toomey, so they are free to play the field.

Lankford is a case study in a politician playing the coward’s choice

Watching Lankford, whose daughter Hannah worked on Vice President Michael R. Pence’s staff, is a wonderful exercise in the coward’s choice.

In the early days of the Trump administration, Lankford sat on the Senate Intelligence Committee, as he does now. From that perch, he was not only aware that classified and sensitive evidence and testimony embarrassing to Trump was leaking from his committee to the mainstream media, but he had to have been aware by the summer of 2017 that the Russian Collusion scandal was a massive hoax.

At the time, the coward’s choice dictated that Lankford stay silent and watch to see if Trump could untangle himself from history’s most expensive and extensive conspiracy theory without his help.

In the ramp up to the first Trump impeachment trial, Lankford was on CBS News’ “Face the Nation” with Sen. Christopher Coons (D.-Del.) and said: “I don’t think that President Trump, as a person, is a very good role model for a lot of different youth, but that’s just me personally.” Then, he demanded that senators have access to Trump’s former national security advisor John R. Bolton’s kiss-and-tell manuscript.

This was good positioning, until it came time for the Oklahoma senator to vote. By then, the coward’s choice was for him to vote to acquit.

Trump won the Panhandle State by 33 points in 2020, and that must have made enough of an impression on Lankford that he was among the 13 senators ready Jan. 6 to challenge the certification of the Electoral College tallies in the joint session of Congress.

“We’ll start with Arizona, so we’ll let that go from there,” said Lankford.

In an op-ed for the January 5 Tulsa-World, Lankford wrote: “We shouldn’t stop working to restore the confidence that our elections are secure and the results can be verified. It’s vital to who we are as a free nation. Oklahomans want to have confidence in our election system and in the election results. That’s not too much to ask.”

The day the Electoral College came up for certification, Congress was interrupted by the mob that breached the Capitol’s security and became the so-called “insurrection” Trump stands accused of fomenting.

Post-insurrection, the Lankford’s calculus of the coward’s choice changed and he withdrew from challenging the certification of the 2020 Electoral College tallies.

In the morning, Lankford said he was so convinced of election irregularities that he was willing to join the extraordinary challenge to the Electoral College led by Sen. R. Edward “Ted” Cruz Jr. (R.-Texas). Cruz was pushing the Electoral College challenges as part of a compromise that would establish a 10-day commission to examine election irregularities.

During the Senate debate over the Arizona electors, the Oklahoma senator urged his colleagues to join the Cruz effort, in fact was making his case on the Senate floor, when the protesters stormed the gates and were headed for the Senate chamber.

It is important to point out that at the time, Trump was still speaking at his rally held between the White House’s South Lawn and the Washington Monument.

Seconds before the Senate session was gaveled adjourned and the chamber cleared Lankford told colleagues:

“What happens if you don’t trust the election count or you’re concerned that so many courts denied or dismissed cases within hours after they were given thousands of pages of evidence? The reason we have a Congress to settle our nation’s divisions and the rules of the Senate make sure that every opinion in the nation is heard is so issues like this can be addressed the constitutional crisis in our country right now is that millions of Americans are being told to sit down and shut up.”

After mobs, who rushed the Capitol went away, Lankford relented and no longer sided with the millions of Americans being told to sit down and shup up.

There were two elector slates challenged in the 2020 presidential election, Arizona and Pennsylvania. Despite his support of the Cruz’s commission, Lankford did not join the objections, which forced both chambers to adjourn and vote on the challenged state’s slate, nor did he vote to overturn the slates from Arizona and Pennsylvania.

It is worth noting that the five GOP congressmen, who make up Oklahoma’s House delegation: Rep. Kevin R. Hern, Rep. Markwayne Mullin, Rep. Frank D. Lucas, Rep. Stephanie I. Bice and Rep. Thomas J. Cole voted to decertify both the Arizona and Pennsylvania slates.

The only explanation for such a divergence is that Lankford is more afraid of someone other than an Oklahoma voter.

Just over a week later, the senator went one step farther in an open letter to the residents of North Tulsa, a predominantly black community, and apologized for the racist overtones of his – and others? – support of the Electoral College challenges.

Lankford wrote: “What I did not realize was all of the national conversation about states like Georgia, Pennsylvania, and Michigan, was seen as casting doubt on the validity of votes coming out of predominantly Black communities like Atlanta, Philadelphia, and Detroit.”

Such is the power of the coward’s choice.

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Neil W. McCabe is a Washington-based national political reporter for The Tennessee Star and The Star News Network. In addition to The Star, he has covered the White House, Capitol Hill and national politics for One America News, Breitbart, Human Events and Townhall. Before coming to Washington, he was a staff reporter for Boston’s Catholic paper, The Pilot, and the editor of two Boston-area community papers, The Somerville News and The Alewife. McCabe is a public affairs NCO in the Army Reserve and he deployed for 15 months to Iraq as a combat historian.