Cynicism and courage, conscience and cowardice, on display at Trump trial
The 44 Republican senators who voted Tuesday to abort former president Donald Trump’s impeachment trial did not give themselves a constitutional pretext to acquit him of the high crime of inciting insurrection. To think they did would be as delusional, and as cynical, as his own claim to have won the election that he sent a howling, murderous mob to overturn.
History isn’t fooled so glibly. Neither are the American people, who are seeing and hearing the same overwhelming evidence of what happened at the U.S. Capitol on Jan. 6.
Impeachment, a safeguard rooted in our British heritage, is unlike a courtroom trial in several major respects. The senators sit as the jury and, collectively, as the judge. Their decisions, whether procedural or on the merits, are unappealable. The Supreme Court said so in 1973, unanimously.
Trump’s objection to the constitutionality of trying an ex-president was settled with the 56 to 44 vote against it. That was the equivalent of a judicial ruling, and it as binding on the senators sitting as jurors as if it were a judge’s ruling in a civil trial, where the jury is under oath to apply the law as the court explains it.
The Senate’s only remaining options are to vote on the merits once both sides have rested their cases, and upon conviction disqualify him from any future federal office.
It was deplorable, though hardly surprising, to find both Florida senators, Marco Rubio and Rick Scott, on the wrong side of Tuesday’s procedural vote. They are indecently eager to avoid crossing Trump’s base of loyal voters, no matter how damaging the precedent his acquittal would set. Nor how damaging to their own reputations.
Desperate for an excuse, Rubio even suggested in a CNN interview that the better remedy would be for Trump to face a criminal trial.
“I’m not sure if it rises to the level of a crime,” he said, “and if it does, and people believe it does, then let a U.S. attorney go to a grand jury and get an indictment and let someone sue. That’s how private citizens should be tried.”
If it does? If Rubio is not a callow, contemptible coward, what else is he?
Even before he lost the election, Trump was laying the propaganda for a coup in which he would weaponize his doggedly faithful supporters. It continued with a torrent of lies and conspiracy theories after the election, culminating in his unmistakable command on Jan. 6 to go to the Capitol and “fight like hell…”
If that doesn’t “rise to the level of a crime,” what would? If Trump’s apologists aren’t proposing a “January exception,” as the House managers described Trump’s hollow defense, what else is it? If disqualification from further office is off the table once an offender leaves office, what’s to stop some future tyrant-in-waiting from plotting another January coup?
History demands the present Senate’s guidance on that, without regard to whether Trump also richly deserves criminal trial and imprisonment for sedition and conspiracy.
In any case, any Republican claims to a constitutional principle are given the lie by the history of the case. The House impeached Trump on Jan. 13, a week after the riot that took the lives of a Capitol police officer and four other people, followed by two police suicides. The Senate could have begun the trial almost immediately with Trump still in office, but Mitch McConnell, the majority leader at the time, refused to end its recess until the day before Joe Biden’s inauguration.
McConnell is now reported to be telling other Republicans that they are free to vote their consciences on the final question of guilt or innocence; that they are not bound by their procedural votes, including his own, to dismiss the impeachment.
That was the report Tuesday night from Bloomberg News.
Yes, it is a question of conscience — the opposite of which is, inescapably, cowardice — although the Machiavellian McConnell has not exactly been an avatar for that virtue. But one can always hope that he will do the right thing on this historic occasion. One might even hope the same for Senators Rubio and Scott.
For luminous examples of what conscience means, there are the six Republican senators who vote to proceed with the trial, along with the ten Republicans in the House who voted to impeach Trump.
Adam Kinzinger, a five-term representative from Illinois, is one of those Republicans. He knows something of courage, having put his life on the line as an Air Force pilot in Afghanistan and Iraq.
In a CNN interview Tuesday night, host Anderson Cooper asked Kinzinger about Trump’s threats of retribution against Republicans who are opposing him.
The Congressman remarked on the incongruity of the Congress asking young people to risk their lives for the nation, “and yet we’re unwilling to give our own careers for a cause of the country…
“You know, I don’t fear the (former) president at all,” Kinzinger said. “I mean, I really don’t. The bottom line is I’m fine if I’m not re-elected, because I can look at myself in the mirror and I feel real peace.
“And when I have kids someday, I think they’ll be proud of this. That’s where my peace is. I feel accountable to God, and I feel like it’s the right thing.
“In terms of others, look, yes, it’s certainly fearful. Because they have envisioned, some, their entire life being in politics and being who they are. There is nothing wrong with that ambition.
“But then when that ambition goes above things, like, do we defend the Constitution? I mean, what happens if the next president does this again, and if that person happens to be a Democrat, we have no moral authority whatsoever to be outraged about anything now because we’ve lost that moral authority with this relativism.”
As William Shakespeare wrote in Julius Caesar, “A coward dies a thousand times before his death, but the valiant taste of death but once…”
In fact, the life of every senator was menaced by Trump’s mob, so they are all witnesses as well as jurors in this unprecedented trial. Having escaped with their lives on Jan. 6, they are now being called upon to put only their jobs on the line for our country. Why, for some, is that too much to ask?
The U.S. Supreme Court is strongly committed to the “marketplace of ideas.” It tends to believe, in the words of Justice Louis Brandeis, that the remedy for falsehoods and fallacies is “more speech, not enforced silence.”
If you believe that, you might also believe that if people lie about COVID-19, the 2020 presidential election, a politician, a journalist, a neighbor — or you or me — nothing can be done. Sure, you can answer with “counterspeech”: the truth. And that’s it.
The problem is in many cases, counterspeech is ineffective. Lies lodge in the human mind. They are like cockroaches: You can’t quite get rid of them.
This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter, in trying to stop falsehoods. Ironically, those understandings, and those practices, may themselves be based on a mistake of fact — something like misinformation.
In United States v. Alvarez, decided in 2012, the Supreme Court appeared to rule that lies and lying are protected by the First Amendment. The court struck down a provision of the Stolen Valor Act, which makes it a federal crime if you claim, falsely, that you won the Congressional Medal of Honor. According to the court, that provision is unconstitutional; the government cannot punish that lie.
As the court put it: “A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims.” In a nutshell: The right remedy for lies is more speech, not enforced silence.
The Alvarez case involved a boastful lie about oneself, and it is not entirely clear how it applies to vicious lies about others, or to lies about health, safety and elections. In limited circumstances, the justices have allowed civil actions against defamation, even when a public figure is involved. But in general, the court has been reluctant to allow any kind of “truth police.” Social media providers have felt the same way.
But the broad protection of lies, defended by reference to the marketplace of ideas, rests on an inadequate understanding of human psychology.
Whenever someone tells us something, our initial inclination is to believe it. If we are told it’s going to snow tomorrow, that the local team won today’s football game, or that a good friend just had a heart attack, we tend to think we have been told the truth.
Sure, you might not believe a source that you have learned to distrust. But most of the time, we assume that what we hear is true.
It’s called “truth bias,” and it extends more broadly than that. Suppose you hear something that you really know to be false. Or suppose that right after you are told something, you are explicitly told, “That was a lie!” For example, the falsehood might be that a vaccine doesn’t work, that a corporate executive engaged in sexual harassment, that an aspiring politician was once a member of the Communist Party.
Even if you are informed that what you have heard is false, you are likely to have a lingering sense that it is true, or at least that it might be true. That impression can last a long time. It will probably create a cloud of suspicion, fear or doubt. It can easily affect your behavior.
It might lead you to fear or dislike someone, or to believe there’s something wrong with that person, even if there really isn’t. You might think that on balance, a statement is probably false.
But “probably false” doesn’t mean “definitely false.” It means “maybe true.”
University of Pennsylvania psychologist Paul Rozin has undertaken some fascinating experiments that help explain what’s going on here. In one of his experiments, people were asked to put sugar from a commercial sugar package into two similar brown bottles. Then people were given two labels, “sugar” and “sodium cyanide,” and were asked to put them on the bottles.
After having done that, people were reluctant to take sugar from the bottle labeled “sodium cyanide” — even though they themselves had affixed the label! When the label “cyanide” is seen on a bottle, people don’t want to use what’s inside it, even if they know, for a fact, that it’s only sugar. That helps explain why lies and falsehoods are so corrosive; some part of us believes them, even if we know we shouldn’t.
Lies and falsehoods, including conspiracy theories, often have a lasting harmful effect, long after they have been successfully debunked. That conclusion has strong implications in practice. It suggests, for example, that social media providers should not be at all confident that corrections, labels, warnings and clarifications will undo the effects of lies.
A far more effective approach would be to reduce the likelihood that the most harmful lies will circulate in the first place, not necessarily by removing them, but by reducing their salience and visibility (on, for example, News Feed) and hence the likelihood that they will circulate. Facebook should be doing more of that. And when serious harms are inevitable, taking lies down, or not allowing them up in the first place, would of course be more effective still.
No one should assume the role of a Ministry of Truth. But informed by psychological research, some social media providers have improved their policies for dealing with lies about COVID-19 — sometimes by taking them down.
That’s strong medicine, usually to be avoided. But when there’s a serious threat to health or safety, or to democracy itself, it’s just what the doctor ordered.