The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My Contribution to Politico Symposium on President Trump's Acquittal
Politico invited me to contribute to a symposium on what President Trump's acquittal means. Here is my brief entry:
The impeachment largely didn't matter to history. We were left with a show trial, which amounted to little more than political theater.
This proceeding could have made a definitive case that Donald Trump incited an insurrection. And I think that evidence could have shown conviction was warranted—especially concerning the official actions Trump took before and after the speech he made on January 6, the same day as the Capitol riot.
But this impeachment was rushed through, which ultimately made it ineffectual.The House approved a single article of impeachment one week after the incursion without developing any evidentiary record. The House did not hold any hearings, accept any sworn statements, subpoena former administration officials or request official documents. At the time, haste was understandable. The House insisted that Trump posed an existential threat, and he had to be removed immediately. But once January 20 passed, that existential threat disappeared.
Perhaps Trump may seek some future office in two or four years. But until then, there was no need to jam through a one-week hearing without any fact finding or oversight. After January 6, the House could have spent some time collecting testimony, documents and other evidence to build a case. But the House chose not to. Instead, it sent its managers to try Trump armed with newspaper clippings, surveillance footage, presidential tweets and Parler posts.
It's no wonder the managers couldn't prove Trump intended to incite an insurrection. They had no actual evidence that proved Trump's state of mind. When the managers tried to introduce a second-hand account of Trump's intent based on a conversation he had with Senator Mike Lee of Utah, Lee claimed it was inaccurate—and the managers ultimately had to withdraw the evidence. Still, the House managers could have called witnesses to build a record during the Senate trial, and even threatened to do so on Saturday. But they didn't.
It seems the focus now will turn to President Biden's agenda. So be it. Priorities matter.
I also expressed similar thoughts last night on BBC World News.