Trump’s Actions Demand a Full Trial. Will Democrats Concur?

Smartmatic Corp.’s recent defamation lawsuit against Fox News, a few of its anchors and a pair of lawyers, all of whom helped Donald Trump promote bogus election-rigging myths, is a model of clarity and principle.

“The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable,” the suit says. “Facts matter. Truth matters. Defendants engaged in a conspiracy to spread disinformation about Smartmatic. They lied. And they did so knowingly and intentionally. Smartmatic seeks to hold them accountable for those lies and for the damage that their lies have caused.”

The U.S. Senate would be wise to keep those words and values in mind when it begins Trump’s second impeachment trial on Tuesday and weighs whether it will hold the former president accountable.

Trump is being tried for inciting an insurrection, and the fact pattern supporting that charge is robust. He spent months claiming the presidential election was rigged and weeks alerting supporters to a Jan. 6 rally that led to a violent, deadly Capitol siege — while also trying to strong-arm the Justice Department, the court system and state election officials into playing along. Members of his presidential campaign helped organize the rally, and his campaign funded other individuals and firms that also helped pull the affair together. The day of the insurrection, Trump reminded rally-goers that “if you don’t fight like hell, you’re not going to have a country anymore.” He then promised he would lead them on a march to the Capitol. A majority of arrested insurrectionists have said since — in court records and in FBI interviews — that they were acting on Trump’s orders, hoping they could block Congress from certifying Biden’s victory.

“President Trump claimed for months that the election was stolen and then apparently set about to do everything he could to steal it himself — and that ended up in an attack on the Capitol,” Representative Liz Cheney, a Wyoming Republican, observed in a TV interview on Sunday. “If I were in the Senate, I would listen to the testimony, I would listen to the evidence. … What we already know is enough for his impeachment. What we already know does constitute the gravest violation of his oath of office by any president in the history of the country.”

What we already know is, indeed, enough for an impeachment. But there’s also crucial information about the circumstances surrounding the insurrection that remains unknown — particularly what Trump knew about how the siege was coordinated and when he knew it. And that’s why the unresolved debate about how quickly the impeachment trial should proceed also matters.

Despite overwhelming evidence against Trump, Democrats will be hard-pressed to corral the 67 votes they need to convict him in the Senate given the support the former president still enjoys within his party. Because the odds of a conviction are long, a sweeping hearing that fully airs everything known about Trump’s role in the insurrection is crucial. It will fortify the historical record and let citizens and voters know what evidence Republicans choose to overlook should they roundly acquit Trump.

A truncated hearing that gives short shrift to relevant evidence and testimony would undermine all of that. But as party leaders continue to hash out the trial’s procedural details, a number of leading Senate Democrats — including Chuck Schumer, Tim Kaine, Sheldon Whitehouse and Bernie Sanders — have called for a rapid trial on the grounds that a more deliberate proceeding would hinder Biden’s legislative agenda and delay the formation of his administration. Other Democrats, including Senators Angus King and Chris Coons, want a more fulsome hearing that zeroes in on Trump’s complicity in the insurrection.

Republicans who have opposed a trial in its entirety, such as Senator Lindsey Graham, would be content with an abbreviated proceeding. So would Trump’s lawyers, who plan to block witness testimony and want to wrap up the proceeding in just a few days. They have also tried to cast doubt on the overall legitimacy of the trial, arguing that Trump was merely exercising free speech on Jan. 6 and that former presidents aren’t subject to impeachment.

Speaking about nonexistent election rigging and insurrection so freely that you help foment a violent attack on federal legislators in an effort to subvert democracy is an interesting way to define free speech. The possibility that Trump helped coordinate all of that, or had knowledge of how it was being coordinated, would provide even more insight into how his legal team understands free speech. A thorough trial would also offer Americans a useful adjudication of those issues.

Laurence Tribe, a professor emeritus at Harvard Law School and a leading constitutional scholar, took to Twitter on Sunday to poke holes in the idea that Trump shouldn’t be subject to impeachment: “Trump is trying to have it both ways. He says he didn’t really lose and so deserves to be treated as though he remains president. And he says because he’s no longer president the Senate can’t convict and disqualify him. Which is it, man? Just asking for a friend.”

Democrats in the House have already filed an 80-page legal brief that amply established why Trump should be impeached. It would be a shame if, in the interests of “unity” or an unproven assumption that Biden’s ability to govern would be curtailed, Democrats don’t stay the course and see to it that a transparent and muscular trial is given the time it needs to serve its full purpose. They should also avoid former Special Counsel Robert Mueller’s mistake during the Trump-Russia probe and subpoena Trump to testify if he continues to refuse to do so.

The truth doesn’t have multiple sides, and Trump’s impeachment trial, if properly run, will help establish the truth — for the historical record, for an understanding of where we’ve gone wrong as a country and for our ability to do better.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Timothy L. O'Brien is a senior columnist for Bloomberg Opinion.

©2021 Bloomberg L.P.

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