The Washington Post Sunday
The riot happened because the Senate acquitted Trump
There was a terrible paradox in the images of Republican members of Congress driven into safe rooms by insurrectionists whom President Trump had whipped into a frenzy. As a lawyer for the Democratic House managers at Trump’s impeachment and trial, I sat on the floor of the House and the Senate as these same lawmakers refused to hold him accountable, knowingly unleashing the storm that swept over them, their Democratic colleagues and the nation on Wednesday. Impeachment manager Jerrold Nadler (D-N.Y.), the House Judiciary Committee chairman, had warned them: “President Trump has made clear in word and deed that he will persist in such conduct if he is not removed from power. He poses a continuing threat to our nation, to the integrity of our elections and to our democratic order. He must not remain in power one moment longer.”
This last week’s events — and indeed all the president’s abuses during this election cycle and the last year — are a consequence of their refusal to convict him in his impeachment trial. With the sole exception of Sen. Mitt Romney (Utah), not a single Republican in the Senate or the House would recognize the threat then. On the contrary. Sen. Susan Collins (Maine) went so far as to say: “I believe that the president has learned from this case. The president has been impeached. That’s a pretty big lesson.”
Yes, Trump did learn a lesson: He learned that he can abuse his power and obstruct the investigation of that abuse, and get away unscathed to commit more high crimes and misdemeanors. Abuse and obstruction were, of course, the two high crimes for which we prosecuted Trump in the Ukraine matter. The first article of impeachment laid out the abuse. It consisted of his pressure campaign on Ukraine to attack his most-feared opponent in the presidential race, Joe Biden, including the infamous July 2019 call to President Volodymyr Zelensky: “I would like you to do us a favor though.” The obstruction consisted of his attempts to hide that wrongdoing. We pointed out too that these were not isolated incidents, but only the latest episodes in a recurring pattern of abuse and obstruction that had been documented by special counsel Robert Mueller.
Trump followed an identical pattern in his post-election assault on American democracy, culminating in another plea to another elected official to try to undermine Biden yet again. On Jan. 2, he called Georgia Secretary of State Brad Raffensperger and tried to use the power of the presidency to pressure the secretary to “find 11,780 votes” and to “get this thing straightened out fast.” The president of the United States also suggested that not doing so would be “a criminal offense” and a “big risk to you” and to “your lawyer.”
As with Ukraine, when the president was caught in the act, he pivoted to more obstruction. Echoing his pronouncement that the Zelensky call was “perfect,” he declared that he had done nothing wrong in talking to Raffensperger and that “everyone loved my phone call.” He wrapped that lie in layers of other prevarications about supposed Georgia electoral wrongdoing — like his claim that he had hundreds of thousands of additional votes. His allegations were baseless.
The 62-minute call and its aftermath were constitutional high crimes and misdemeanors — and probably statutory crimes as well. They came to us courtesy of the Republicans who failed to stop Trump a year ago when they could. The call is evidence that the president
The trial was a missed chance to halt Trump’s bad behavior, says impeachment counsel Norman Eisen
his allies may have been working to overthrow a lawful and democratic election, thereby threatening the rights of Georgia voters. If that is not an abuse of power, nothing is.
Moreover, it is a federal statutory felony if “a person . . . in any election for Federal office . . . knowingly and willfully . . . attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the . . . tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” This statute makes it clear that any Trump-sponsored search-andrescue party for nonexistent votes — for example, 11,780 votes in Georgia — could constitute a crime in and of itself. Other federal and state crimes, such as extortion, may also have occurred in that call.
When the call failed, with Raffensperger rebuffing him, Trump turned to his last refuge and his latest high crime and misdemeanor: inciting his mob. They were his hardest-core supporters, urged by his Twitter feed to come to Washington. He urged them, “Be there, will be wild!” And when they gathered, he exhorted them to march on the Capitol and said, “If you don’t fight like hell you’re not going to have a country anymore.”
Every Republican member of Congress who failed to impeach, convict and remove him bears some responsibility for what happened next. True, there are gradations of responsibility. By then some of Trump’s support in his party had finally dropped away; Majority Leader Mitch McConnell (Ky.) and other senators had at last had enough. But a handful of senators led by Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.), all of whom had voted to acquit on impeachment, doubled down. They picked up his false claims and drove them forward, joining about 140 of their peers in the House in announcing plans to object, baselessly, to the electoral slates from up to six states, all of which Biden won.
The Trump-stimulated chaos driving all those lawmakers from their seats and into hiding was equally the president’s fault and their own. The scenes are now etched in America’s historical consciousness: the violent mob storming the Capitol; the smashed windows; the sacred spaces invaded; the rioters posing for selfies in their camouflage gear and cultish outfits. There were dozens of injuries and, tragically, the deaths of one rioter, one Capitol Police officer and three other Trump supporters participating in the day’s protests.
Nothing would have horrified the framers of the Constitution more than a president inciting an attack against his own Congress. It was a paradigmatic abuse of power, and with it — inevitably — came the obstruction of the truth. The old pattern. Trump’s remarks to his mob that day to stand down maintained the hateful fiction that had driven them to such extremes, as he repeated the fantasy that he, in fact, had won the presidential election, that it was stolen from him. He told his mob “we love you,” even in the face of their violence.
Does the fact that impeachment a year ago opened the door to all of this mean it was a failure? Does it signify that the institution of impeachment no longer works — if it ever did? With Congress and the nation now deliberatand ing a possible emergency impeachment, that question is more important than ever.
The answer: Of course not. The failure of Republicans to do the right thing, or of Trump to learn a lesson, does not mean impeachment is a failure — neither his particular impeachment nor the institution. On the contrary, I believe that impeachment helped awaken Americans to just whom they were dealing with. Day after day of hearings in the House, the drama of passing the articles and then the trial in the Senate taught the country who Trump was. And its citizens delivered the final verdict on all his misconduct in turning him out of office. What the Republicans failed to do in impeachment, the American people did at the ballot box.
And that shows the power and relevance of the institution. If, as it appears, there will be no invocation of the 25th Amendment to remove the danger of Trump in these waning days of his presidency, Congress is well advised to take a hard look at the remedy we tried. If it is tried again, and it fails again, will that make Trump’s behavior any worse? And while we were not successful in convincing McConnell or almost any of his colleagues of the virtue of our first effort, perhaps they have learned a lesson from the last year, even if the president has not.
Norman Eisen was a special counsel for the House Judiciary Committee for the impeachment and trial of President Trump. He is a senior fellow at the Brookings Institution, counsel for the Voter Protection Program and the author of “A Case for the American People.”