With a major shakeup in Donald Trump’s legal team this weekend, increasing attention is being paid to what defense the former president will mount in his upcoming Senate impeachment trial.
Conventional wisdom is that Republican senators would prefer Trump simply argue that it is unconstitutional to impeach a former president. Reportedly, they do not want him to argue he was not guilty of inciting a riot, and most certainly do not want him to argue that there was, in fact, widespread election fraud.
One can understand why these senators would rather rule only on the narrow issue of the constitutionality. It is far less contentious than the other two arguments, and why even bother with them if the first argument makes them moot?
But for Trump, who has already lost his largest platform on Twitter, the ability to lay out the case on why he didn’t incite a riot and that there was widespread fraud may seem irresistible. It would be far riskier, but there is still a very good chance he would be acquitted, maybe by a closer margin — possibly with some annoyed votes in his favor, but acquitted nonetheless.
On all three counts, Trump has very reasonable arguments to make. And given that so many in the media have already made up their mind that he is obviously guilty, he would have a very low bar to cast doubt on that guilt. So let’s look at each defense on its own.
The constitutional question of whether you can convict a former president in the Senate appears to be a legal 50-50 ball. There are experts on each side of the question. Both make reasonable if contradictory arguments, and neither can really claim certainty. This makes it an easy out for Republican senators, and it’s why they don’t want to look any further.
As far as the question of incitement, I’ve made a longer argument in these pages, but it boils down to the idea that Trump’s actions were way too broad and indirect to be considered an incitement. Now, those in favor of conviction point out that the legal standard, which almost everyone agrees Trump did not meet, doesn’t matter here. That’s true. The Senate can define it anyway they want, but they still need a standard by which to do so, and more importantly they will setting that standard in an official capacity.
If Trump’s speech was incitement to riot, then what is the limiting principle? Was Rep. Maxine Waters inciting people when she told them to get into Trump officials’ faces in 2018, all while she was pushing the big lie of Russian collusion?
American political discourse is replete with fighting metaphors and lying. We also now know that the rioting had started a mile away from Trump’s speech before he finished speaking and that elements were pre-planned. The case for incitement is far weaker than the media would have you believe.
Finally comes the most controversial potential defense: that there really was massive voter fraud. To many this seems like a Kamikaze defense, but it might not be. Republican officials have been pressured since the riots to say that there was no widespread voter fraud. The idea seems to be that if they refuse they are also complicit. It’s absurd, of course, as this past election was one of the sloppiest in recent memory. That happens when you change the rules on the fly.
There are plenty of important irregularities in the election that really do need investigation. That is why Sen. Josh Hawley and Sen. Ted Cruz launched a symbolic effort to refuse certification in order to shine a spotlight on these irregularities. The problems were real. They exist. Are they enough to overturn the results? It appears not, but that really isn’t the point, the point is we need to fix them anyway.
Too many Republicans are being shamed now into not making a very important argument about election security. It would be the most Trump thing in the world to show up at the Senate and fight the fight they refuse to. And again, Trump’s bar would be low. We have been assured there was no fraud, no major problems in mail-in voting. Just a handful of examples would put the lie to that.
Trump seems poised to get a win when the votes are cast in his trial. The question is how big the win will be. I don’t think you answer that question based on how many votes he gets. I think you answer it based on how broad the scope of his acquittal is. Trump doesn’t want to win on a technicality; he wants to win on the merits. A fighter doesn’t hide behind constitutional controversy, he says, “You tried me. I won.”
There is every reason Trump should press all three arguments. Together they represent his best possible case, a three-pronged attack on every element of the charges against him. Even he wins with a smaller margin, by fighting the whole thing and winning, he will emerge much stronger than choosing otherwise.