But the GOP defense of Trump isn’t really bothering with his culpability. Instead, it has focused more on procedural and ancillary issues. First it was that the trial would be needlessly divisive. Then it was that the trial itself was unconstitutional, given Trump is no longer in office. And sprinkled in between have been a number of novel arguments about why Trump shouldn’t be convicted — arguments that generally don’t address his actual conduct.
Below are some of the most strained and overly-simplistic ones.
Argument No. 1: It’s too divisive
It’s completely valid to say that an impeachment is divisive; it always is. We see very little bipartisanship when either the House or the Senate votes on one. Trump’s have been the most bipartisan in history, but Republican support was minimal. And on both the Clinton impeachment and both of Trump’s, public opinion has been sharply divided.
Republicans’ argument is essentially this: It doesn’t help our country move forward from an ugly chapter in our history (the storming of the U.S. Capitol), especially when the new president has pledged to unite the country. And there’s some truth to that.
But such divisiveness is only part of the equation. It should always be measured against both the nature of the alleged high crime and the need for accountability. Allowing a president to skate on such a thing isn’t something that should be undertaken lightly, because it could both absolve them of real culpability and set a precedent that, as long as a president creates divisions that need to be healed, Congress will shy away from impeachment. Republicans have largely pretended this balancing act doesn’t exist.
Another key point is why we are so divided and in need of healing in the first place, irrespective of Trump. While few GOP lawmakers subscribed to Trump’s more extreme conspiracy theories about the election, many of them offered a watered-down version of them and supported his challenges, without bothering to parse the details. Some of them who have rebuked the impeachment talk and called for coming together, such as Sen. Rand Paul (R-Ky.), continue to cast doubt on the election results in a way that suggests their expressed fear about creating divisions is rather selective.
If the name of the game these days is truly unity over accountability — even if the questions you have about the validity of the election are ill-founded — it’s tough to do that while still feeding claims of a stolen election. Those also promote division, after all.
Argument No. 2: It’s unconstitutional
The vote is seen as the death knell of a potential conviction for Trump. How could 17 GOP members vote to convict — the number that will likely be necessary — when just five said this whole thing was even constitutional?
As with the above, this claim isn’t ridiculous. We have no final word from the judicial branch on whether an impeachment trial of a former official is constitutional. We’ve had such trials before for former officials who weren’t presidents, but courts have not validated the proceedings. (I ran through all of this here.)
The counter-argument is that this is far from settled law, and the courts have generally deferred to the legislative branch on impeachment matters and setting their own rules. In other words, if senators decided they wanted to convict Trump, they could probably make that decision themselves. Declaring it unconstitutional, as mentioned above, does avoid thornier issues.
Argument No. 3: It’s too rushed
A compelling argument against prohibiting post-presidency impeachment trials is the idea that it would give an outgoing president free rein to do whatever they want in their final days. Without the ability to impeach and convict in a short period of time, after all, why not do whatever you want?
As I wrote last week, just because such a loophole might be thoroughly convenient doesn’t mean the loophole doesn’t exist. But Republicans have also alternately argued that, while they don’t believe a former president can be convicted, the process has also been rushed.
Sen. Lindsey Graham (R-S.C.) made such an argument Wednesday.
“The President of the United States was impeached in 50 hours without 1 witness being called and he didn’t have a lawyer,” Graham said.
The House’s wisdom in impeaching Trump without holding hearings or much else is indeed worthy of debate. But many of Graham’s colleagues have also argued that such procedures against a former president are invalid. The logical question that follows is: If the president is in his final days, what do you do? Do you let proceedings drag out, even if the accused knows they just have to run out the clock? What constitutional accountability is there for a president in his final days?
This doesn’t seem to be much of a concern for Trump’s defenders, but it’s probably worth asking what they think the remedy would be.
Argument No. 4: This is what third-world countries do
A variation on some of the above arguments is that we’re devolving into something less than a first-world country when we seek to sanction political leaders like this. Sen. Marco Rubio (R-Fla.) on Wednesday likened it to what happens in third-world countries and Latin America.
“This is terrible for the country. It sets a terrible precedent. Only in the third world do you see this habitual use of prosecutions of former leaders,” Rubio said. “You go through Latin America; virtually every immediate past president is under indictment or in jail.”
Rubio added on Fox News that “it is pretty typical in the third world that, after someone’s out of office, they lose, they leave, the party that takes power then prosecutes them. It happens all over the world. And that’s the precedent we’re creating here now.”
It bears noting that impeachment and conviction would not land Trump in jail, nor is it technically a legal prosecution; instead, it’s a thoroughly political one, in which the chief punishment would likely be preventing Trump from serving again. But it also bears noting that first-world countries also do prosecute their leaders — even legally, even putting them in jail, and even very recently.
In France, former president Nicolas Sarkozy was recently prosecuted for alleged corruption, and his predecessor, Jacques Chirac, was convicted of embezzlement. Former Israeli prime minister Ehud Olmert was convicted of accepting bribes in 2015, and current Prime Minister Benjamin Netanyahu is currently fighting his own corruption charges. Two recent presidents of South Korea have been convicted, while another died by suicide after his own impeachment. And former Italian prime minister Silvio Berlusconi has also recently been convicted of tax fraud.
This argument also, again, does nothing to address whether Trump’s conduct might actually warrant such unusual sanction. What if it’s truly worse than whatever alleged wrongdoing fellow first-world leaders have been accused of? But even setting that aside, it ignores plenty of recent history.
Argument No. 5: But what about Democrats?
Whataboutism has become a plague on U.S. politics, and it also pertains here. Paul on Tuesday suggested there was a double standard when it comes to Democrats doing similar things.
“What of Democrat[ic] incitement to violence? No Democrat will honestly ask whether Bernie Sanders incited the shooter that nearly killed [House Minority Whip] Steve Scalise [R-La.]” Paul said on the Senate floor, adding: “No Democrat will ask whether [Rep.] Maxine Waters [R-Calif.] incited violence when she literally told her supporters” to confront Trump administration officials in public.
“Is that not incitement?” Paul asked.
The comparisons to Trump, though, have very established limits.
The 2017 shooting at a Republican congressional baseball practice in suburban Washington was perpetrated by a Sanders supporter, but there’s no evidence that Sanders did anything amounting to advocating such things. Paul cited the man’s expressed belief that his actions were warranted because of health-care policy and that Sanders had said the GOP health-care proposal would lead to death.
But even the GOP accusations at the time weren’t really about Sanders engaging in direct incitement, but rather whether he had otherwise radicalized the left. Sanders the year before also directly urged supporters not to get violent for his causes. And Scalise himself said he didn’t blame Sanders.
As for Waters, both the highest-ranking House and Senate Democrats rebuked her rhetoric about publicly confronting members of Trump’s Cabinet. The comments came at a particularly fraught time, after then-White House press secretary Sarah Sanders was asked to leave a restaurant.
Rep. Nancy Pelosi (D-Calif.), who was then House minority leader, responded to a tweet about Waters’s comments by saying, “we must conduct elections in a way that achieves unity from sea to shining sea.” Then-Senate Majority Leader Charles E. Schumer (D-N.Y.) responded to Waters’s comments by saying “harassment of political opponents” was “not American.” (Sanders also differed with Waters’s approach, advocating a less-confrontational one when asked about it.)
Pelosi and Schumer drew rebukes from their own allies for speaking out. They argued Waters was being singled out for comments that didn’t directly advocate violence and that their comments played into the hands of Trump, who had attacked Waters relentlessly, including for her supposed lack of intelligence.
While those Democratic leaders didn’t accuse Waters of inciting violence, as Paul suggests they perhaps should have, their comments went further than the vast majority of Republicans who have responded to what Trump said — and from the highest ranks of Democratic leadership at the time. And as noted above, Trump has repeatedly alluded to actual violence by his supporters, often in an approving or highly suggestive way. He also promoted various lies about the election. It’s just not the same as warning about bad health-care policies leading to death (which they literally can) or talking about public confrontations of politicians you disagree with.
Those past Trump comments, though, aren’t really being accounted for by Trump’s congressional allies.