The Washington Post Sunday

The riot hap­pened be­cause the Se­nate ac­quit­ted Trump

- Twit­ter: @Nor­mEisen US Elections · U.S. News · US Politics · Politics · Elections · United States Senate · Donald Trump · Republican Party (United States) · Congress of the United States · New York · Mitt Romney · Utah · Ukraine · Joe Biden · Volodymyr Zelenskiy · Georgia · Brad Raffensperger · United States of America · Twitter · Washington · Mitch McConnell · Kentucky · Texas · Missouri · Jerrold Nadler · Susan Collins · Robert Mueller · Ted Cruz

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.”

 ?? MATT MCCLAIN/THE WASH­ING­TON POST ?? A po­lice of­fi­cer is seen through a bro­ken Capi­tol win­dow Thurs­day, a day af­ter a mob in­cited by the pres­i­dent over­ran the Capi­tol Po­lice and stormed the build­ing — the cul­mi­na­tion of months of unchecked be­hav­ior af­ter the fail­ure to re­move Trump at his im­peach­ment trial last year.
MATT MCCLAIN/THE WASH­ING­TON POST A po­lice of­fi­cer is seen through a bro­ken Capi­tol win­dow Thurs­day, a day af­ter a mob in­cited by the pres­i­dent over­ran the Capi­tol Po­lice and stormed the build­ing — the cul­mi­na­tion of months of unchecked be­hav­ior af­ter the fail­ure to re­move Trump at his im­peach­ment trial last year.

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