Impeachment: Senate trial a forgone conclusion with no winners, except perhaps for Trump

Like a piece of theatre, the second Senate impeachment trial this week of former US president Donald Trump has had the world watching on, grimly fascinated. In scenes viewers couldn’t tear their eyes from, the Democratic prosecution relied on the shock and awe of the attack on the US Capitol on January 6 to make their point — videos of the violence contrasted with Mr Trump’s incendiary words had senators in tears as they relived the ordeal. Five people died in the Capitol chaos and aftermath. At the end of their two days, the impeachment managers wound up their opening with a warning that Mr Trump could return to power if the Senate fails to find him guilty. But, as Mr Trump’s defence begins today, the question remains, has this all been just theatre before an inevitable finding of “not guilty” as Trump-faithful Republicans stand by their man? Team Trump It wasn’t a great start for Mr Trump as just days before his trial on a charge of incitement of insurrection, five of his attorneys departed over what was understood to be a disagreement over the strategy for his defence. Rumoured to have found it difficult to engage attorneys in the first place, it was no insignificant setback for the former president who was said to have wanted his claims of election fraud front and centre of the strategy, rather than the attempt to persuade the Senate that, constitutionally, they could not convict a president after he has left office. It was Bruce Castor and David Schoen who came to Mr Trump’s aid at the eleventh hour and it was they who fronted up on Tuesday for the first day of the trial. It didn’t go too well, but we’ll get to that shortly. Just who are the two brave men who are defending Mr Trump in his second impeachment trial in 13 months? Bruce Castor is probably best known outside of the US for being the guy who declined to prosecute comedian Bill Cosby for sexual assault in 2005. In 2018 Cosby was convicted of three counts of sexual assault in a retrial of his case. Mr Castor is also a former Pennsylvania district attorney, but, sadly for Mr Trump, he does not have previous high-level constitutional law experience. Alabama-based Mr Schoen, 62, doesn’t have that experience either, being more normally focused on civil rights and criminal defence (among his big cases, he previously represented the Ku Klux Klan in successfully challenging a law that forbade them from marching while wearing hoods and without paying a fee). And you can add to all that, the pair have never worked together before, either. In an interview just before the trial, Mr Schoen, even admitted that when it came to the Senate proceedings: “We don’t know what the agenda is, we don’t know what the order of things is going to be. We don’t know how much time is going to be afforded.” And it perhaps showed on that first day. Mr Castor spoke first for 48 minutes, with Mr Schoen to follow — another last-minute alteration as it was supposed to be the other way round — and they failed to persuade the Senate of their best shot to have the whole thing shut down on day one, that they weren’t legally able to impeach someone who has already left office. Mr Castor’s speech was labelled by media around the world as “meandering” at best and “bewildering” by most, with very little substantive content. The Senate ultimately voted 56-44 that the impeachment trial was constitutional. The final fling Mr Castor and Mr Schoen have indicated, ahead of standing up today, that they will offer a far shorter rebuttal than the 16 hours over two days to which they are entitled. Senior Trump aide Jason Miller confirmed that the former president’s legal defence team would use just one day to counter the two-day opening from House impeachment managers. “We will finish up our presentation tomorrow,” Mr Miller wrote on Twitter. It is believed that the defence team will argue that as terrible as the attack was, it clearly was not the former president’s doing. The “prosecution” In a far more cohesive message, impeachment managers re-created the January 6 Capitol incursion, revealing chilling new CCTV footage showing how close the mob was to the Democrat and Republican leaders they were “hunting”. They accused Mr Trump of “incitement of insurrection,” drawing a direct line from his repeated comments condoning and even celebrating violence — praising “both sides” after the 2017 outbreak at the white supremacist rally in Charlottesville, Virginia — urging his rally crowd last month to go to the Capitol and fight to “stop the steal” of his presidency and spreading false claims about election fraud. Prosecutors used the rioters’ own videos from that day to try to pin responsibility on Mr Trump. “We were invited here,” one rioter said. “Trump sent us, he’ll be happy. We’re fighting for Trump,” another said. “They truly believed that the whole intrusion was at the president’s orders,” Democratic lawmaker Diana DeGette of Colorado said. “The president told them to be there.” Wrapping up their arguments on day three, the prosecution said Mr Trump presented a “clear and ongoing danger” to the US and that he should be stopped from ever holding public office again. “Is there any political leader in this room who believes that if he is ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way,” lead impeachment manager Jamie Raskin asked on Thursday afternoon. “Would you bet the lives of more police officers on it? Would you bet the safety of your family on it? Would you bet the future of your democracy on that? President Trump declared his conduct ‘totally appropriate’. So, if he gets back into office and it happens again, we will have no one to blame but ourselves.” Mr Raskin said the rioters who overran the US Capitol did so at the direct invitation of Mr Trump and that he did nothing to stop them as the chaos unfolded. “President Trump is not even close to the proverbial citizen who falsely shouts ‘fire’ in a crowded theatre,” he said. “He is like the now proverbial municipal fire chief who incites a mob to go set the theatre on fire, and not only refuses to put out the fire, but encourages the mob.” Foregone conclusion? Many believe the trial can only have one outcome, given a two-thirds majority is required to find Mr Trump guilty. That means that 17 Republicans out of 50 must cross the divide to vote with the Democrats. Since the vote on constitutionality ended 56-44, most pundits think that’s an unlikely scenario. And it doesn’t look like the impeachment managers have managed to swing too many of the Trump faithful to their side. Senior Republican Senator Lindsey Graham, and staunch Trump supporter, said the emotive prosecution from impeachment managers wasn’t changing any Republican minds and that Mr Trump would be exonerated. “The ‘not guilty’ vote is growing after today,” Senator Graham said late on Wednesday. “I think most Republicans found the presentation by the House managers absurd.” Mr Schoen said that the prosecution presentation was “offensive” and that the Democrats “haven’t tied it in any way to Trump”. He told reporters at the Capitol on Thursday that he believed Democrats were making the public relive the tragedy in a way that “tears at the American people” and impeded efforts at unity in the country. And another Republican, Sen. Jim Inhofe of Oklahoma, said during a break the same day: “To me, they’re losing credibility the longer they talk.” What comes next? Unlike his first impeachment trial — relating to his actions over Ukraine and in which he was exonerated — that took three weeks, this one has steamed ahead with a vote over the verdict expected as early as this weekend. While a “guilty” finding is unlikely, if that does happen, there’s really one main repercussion that might worry Mr Trump. Because he is no longer in office, there is no punishment awaiting him, but a guilty verdict would allow the Senate to order a simple-majority vote to bar him from holding Federal office in the future, thus scuppering any chance that he could run for president again in 2024. But the ramifications of the outcome go far beyond Mr Trump, according to Curtin University US politics expert Professor Joe Siracusa, who says the entire impeachment process is a lose-lose on all sides. “There’s no win-win here. I think the Democrats lose a lot of what they could have done and the Republicans don’t look very good,” Professor Siracusa said, adding he felt that, unlike a criminal trial, the impeachment did not require the prosecution to prove the charge beyond the shadow of a doubt. “We have 100 jurors, all of whom were the subject of an assault on January 6. And in this case the jurors become the witnesses, the witnesses become the jurors and to show you that it’s not really constitutional, the chief justice of the Supreme Court, John Roberts, didn’t even show up. And the constitution says the chief justice has to preside over a presidential impeachment. “If you start to go after Trump, at the same time the unintended consequence is to destroy the separation of powers then you haven’t done very much, you’ve had a very bad day’s work.” Professor Siracusa pointed to concerns that the Senate was hearing the impeachment trial instead of moving on other important legislation, including COVID measures, as one of the major downsides to the trial. “You’ve got income, housing and food insecurity, and millions of American kids going to bed without food and what’s the Senate doing ... instead of passing this COVID legislation relief bill, they’re engaged in this hate campaign between themselves and the Trump people. “This is the lose-lose because they are taking their eye off the ball ... (President Joe) Biden’s lost the momentum. Biden’s big job was to make COVID-19 go away and so he’s going to be judged by that, but he can’t really be judged by that because it’s off the table until the impeachment is off the table.” At the end of the day, Professor Siracusa — who describes himself as a lifetime Democrat — said Mr Trump might actually be one of the only players to come out of the whole process relatively scot-free. “It’s punishment free for him. When he was bankrupt, he turned the other things that failed in his life, the casino, every time he has a failure he turns it into a success. He’s a strange guy. “He knew from day one that no matter who sends in his defence, he’s got the jury rigged because the jury is not going to find him guilty and so if you know the jury is not going to find you guilty, you can sit back and relax. The impeachment is about numbers. If you’ve got the numbers in the house you can impeach a ham sandwich.” But, of course, the Democrats don’t have those numbers. “So, I think Trump gets off pretty free,” Professor Siracusa said. “Look if something turns up and somebody can find he had his finger in a pie, he would still recover. He’s still the titular or nominal head of the Republican party, but I think now he is the full head of the Republican party. Look at what he’s survived — the Mueller report, the first impeachment, then he gets COVID and is back at work in 10 days, this guy is starting to look like superman. “He doesn’t defeat easily and that’s what people see.” Why do we even care? At more than 18,600km away as the crow flies, Washington DC is a world away from Perth. So, just why are we so fascinated by the impeachment process? Professor Siracusa offers up his suggestion: “There are 193 nations out there — it matters (to them) in terms of foreign policy, defence policy, trade policy. The US is, by definition, the leader of the free world. “Before COVID, I was flying around the world with security conferences in Estonia, Germany, Lithuania, India places like that and everybody, all the security people around the world, the first thing they’d look at in the morning was Donald Trump on Twitter, whether it would affect their nation, or their security relations. Other nations pay a lot of attention to what goes on in Washington. “And let’s face it, it’s great television. It may not be popcorn time, it’s not as much fun as Game of Thrones, though there is a little bit of that, too, as a matter of fact.”