Counterpoint: The House Managers Made Their Case

Of course, it depends on what case one thinks needs to have been made.

I disagree, at least in part, with my co-blogger James Joyner’s position in his post this morning: Did House Impeachment Managers Make Their Case?

Granted, the answer to that question very much depends on what kind of case one is talking about.

If this was a court case about criminal charges about incitement to riot, I would very much agree with James that the case was not made. Indeed, such a case is pretty hard to make in a court of law.

Now, James is also correct that if the standard is changing enough Republicans minds to get to 67 votes, then the case was not made.

However, I am of the view that the standard is whether an elected official was sufficiently irresponsible with his words in a way that has disqualified him from further holding office. And, in fact, I think that if the managers failed they failed in making this point sufficiently stridently (not that it would have mattered).

Having watched most of days two and three, I think the House managers clearly demonstrated that the President of the United States acted irresponsibly, over a period of years, to promote violence as part of politics while at the same time sowing lies and cultivating distrust of our elections. I think that they have demonstrated that it is not unreasonable to assume that this rhetoric could take hold and inflame a segment of the population and, further, they clearly showed that many participants in the storming of the building certainly thought that Trump asked them to act.

I think the fact that so many in the mob were looking for Mike Pence is directly tied to Trump’s January 6th speech.

And, as I myself argued a few weeks ago, I think they made the case that his inaction during the event coupled with his kind words to the mob after the fact all underscored his culpability.

I am no Pollyanna (unlike Bill Kristol) about the outcome, but I think they made their case but the core reality here is that outcome is not about whether a case was made or not.

Meanwhile, the defense has been a heaping helping of whataboutism coupled with what I think are irrelevant attempts to pretend like they are arguing before the Supreme Court, not the US Senate.

But, of course, Castor and company could have stood up and said “watermelon, cantaloupe” for hours on end and GOP members would state how compelling a presentation they had made.

FILED UNDER: Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Pete S says:

    I would almost argue that Trump’s defense team today is making a pretty good case for conviction as well. It really comes down to, Trump knows the acquittal is coming so he has sent this team to make the Republican Senators look completely ridiculous when they vote for him. I am somewhat convinced that this is his power move as punishment for his belief that they were not defending him enough.

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  2. CSK says:

    Trump’s attorneys blamed Antifa.
    What interested me about their montage of Democrats using the expression “fight like hell” was that none of these occasions was followed by violence. Only Trump’s was. I don’t know whether this speaks worse of Trump or of the kind of people who worship him.

    @Pete S:
    That maneuver may be a bit too subtle for Trump. He’s more a sledgehammer rather than a stiletto kind of guy.

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  3. Kathy says:

    The Republican party does not know about abusive relationships. They are still in the phase where they forgive the abuser, without Trump apologizing first, and telling themselves if they are meek and pliant, the abuser will treat them better.

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  4. al Ameda says:

    Well, I forced myself to watch this defense.
    A few observations:
    (1) I guess that this is what Lindsey and Ted asked them (told them) to present.
    (2) Did they forget to show us the footage from 2016 and 2017 wherein angry left wing radicals stormed the Capitol Building? I was looking forward to that “Both Sides Do It” video footage.
    (3) Finally, that was as cringe-y a performance as you can find anywhere on YouTube.

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  5. mattbernius says:

    While it was recorded prior to things finishing, I think PopeHat’s (Ken White’s) analysis on this week’s All the Presidents’ Lawyers is quite good. It matches your take Steven. My feeling is that the House Team did a solid job, especially considering that the result was more or less a foregone conclusion.

    https://www.kcrw.com/news/shows/lrc-presents-all-the-presidents-lawyers

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  6. a country lawyer says:

    As I argued in the previous thread, I believe that by any standard, including that required in criminal prosecution, the managers had proven their case. What you and James both appear to be basing your belief that in a criminal trial the case would not be proven because of a failure of the 3rd leg Neguse listed in his summation, that is did Trump act “knowingly”, and that there was no direct proof of his acting knowingly. True, there is no tweet, verbal, or written statement that Trump acknowledged that he knew the mob would break into the capitol and wreak the havoc we witnessed . But direct proof is not required. In any court of law, criminal or civil, the judge will direct the jury that there is no difference between direct and circumstantial evidence. Each are given equal weight in the law. A U.S. District Judge I appeared before many times early in my career would tell the jury in his instructions “you can’t x-ray a persons mind”. To determine whether an individual acted knowingly or with the intent required you must judge the person’s actions in order to draw the necessary conclusions. There was ample evidence presented by the managers from which any reasonable mind could conclude the Trump acted with full knowledge of the likely outcome of his actions.

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  7. flat earth luddite says:

    Yes, the case against Trump was compelling. His actions were beneath contempt.

    I’d call them spineless weasels, but that’d be an insult to weasels. They’d vote to acquit if Trump had led his followers into the chambers, defecated on the flag, and been caught on video personally beating Pelosi. Seems to me that Senatorial GOP members welcome the abuse and beatings by Trump and his followers. IMO, the only way they’d be happier is tied up and gagged for the abuse.

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  8. ImProPer says:

    “Meanwhile, the defense has been a heaping helping of whataboutism coupled with what I think are irrelevant attempts to pretend like they are arguing before the Supreme Court, not the US Senate.”

    Gotta give the devils their due. Trumpkins love legal sounding dreck, its music to the ears, the mind be damned. I think the odds are good that we might even hear the old “we are a Republic and not a Democracy” before its all said and done.

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  9. Pete S says:

    @CSK:
    He understands power though. It may be all he understands. This is like when he made Pence drive halfway across Ireland to stay at a Trump property. The senators who vote to acquit are tied to him forever, no more little rebellions like voting to certify the EC results allowed. He has taken away, or his lawyers have, whatever fig leaf the senators were going to use for cover. I think that is why Haley is backing away from him a little bit. No profile in courage but she is smart enough to know that Trump is pushing the 2024 field to clear itself.

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  10. James Joyner says:

    We mostly agree, I think.

    We both believed prior to the start of the hearings that Trump was morally guilty of incitement, even if he didn’t meet the criminal definition. I’m just not sure who they persuaded that wasn’t there before.

    Most people didn’t have the time to watch the hearings live. And most who are interested enough to watch the news for a recap either 1) already have a firm view on Trump and the events of 6 January, 2) watch a news network that’s ideologically slanted, or 3) both.

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  11. reid says:

    @James Joyner: So when you boil it all down, everything is pointless and we’re doomed…?

    Not meant to be snarky; I mostly agree, but it shows how screwed up our society has become. I will hope that some people out there did watch and some minds were changed. Not in the Senate, of course, where they barely watched and certainly won’t change their mind. (It’s lovely to hear about how Graham and Cruz are meeting in private with Trump’s defense team.)

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  12. a country lawyer says:

    While we’re discussing the trial, I am going slightly off topic to pick at a nit that is particularly bothersome to me. I suspect that James as a professor at the Marine Corps University may have the same irritation. The managers in their presentations many times referred to “Our commander in chief”. I see this frequently in various blogs and on news casts. The U.S. is not a military dictatorship (at least not yet). Unless the speaker is member of the armed forces, the president is not our commander in chief. Article II provides that the President shall be the commander in chief of the Army and the Navy, which is just another duty imposed on the President by the Constitution. The President is not the commander in chief of the United States or it’s citizens.

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  13. Scott F. says:

    @James Joyner:

    And most who are interested enough to watch the news for a recap either 1) already have a firm view on Trump and the events of 6 January, 2) watch a news network that’s ideologically slanted, or 3) both.

    While I believe this is true, I also believe this hearing will play a long time in reruns and that the importance of that is getting short shrift amidst of the speculation about the immediate results of this week. More information will emerge, Trump will continue to stir the pot, the rioters will start complaining from jail, the narratives will change, and the case we heard this week will play again and again in the court of public opinion.

    Biden would NEVER even try anything as contemptible as what Trump has done on a fairly regular basis, but it is a near certainty that he will make some questionable move in the coming years that the Republicans will try to make hay of. Biden need only ‘roll the tape’ of some portion of the impeachment managers’ case and he’ll be well positioned to respond back with a barely veiled STFU.

    And in two years, some of these Republican Senators will be up for re-election and not all of those are representing solid red states. The videos from this trial will come out again, accompanied by footage of the GOP incumbent’s dismissive regard for mob action. This will put the Republican candidate on the defensive and drive substantial fundraising for the Democrat.

    And then further out into the future (and this is admittedly more hope than confidence), some of these Republicans will consider their legacies with some measure of regret knowing they once sold their souls to the devil.

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  14. Joe says:

    I was listening to some of the defense on the radio. Did I hear correctly that several (all?) of the defense’s montage videos had background music? Seriously? Did the Impeachment Managers do this?

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  15. Pylon says:

    I understand that the senate procedural administrator has said that Senators should not be considering constitutionality, as it has been decided and is, if you will, res judicata. I suppose that’s not binding on them, and no one is required to announce a reason for their vote anyway.

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  16. Joe says:

    @Pylon: I will pay cash money if at least on Senator doesn’t mention the “question of constitutionality” in a speech they either voluntarily make in casting their vote or in the subsequent press briefing.

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  17. David S. says:

    @Joe: In the article James’ post quoted, I noticed a senator saying they’d written down that something was “a powerful statement”.

    Like… what were they taking notes on? How to give a Powerpoint?

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  18. Andy says:

    To get the throat-clearing out of the way, my mind was made up by January 7th that Trump deserved to be impeached. And I thought Trump deserved impeachment (and removal) for the Ukraine deal last year.

    The sad reality is that I don’t think it matters how well each side made their case given that impeachment is entirely a political affair – and in today’s environment politicians don’t judge evidence on the merits, they use political criteria.

    In other words, there is nothing in the realm of possibility that the House Managers or Trump’s defense could argue or produce that would change the outcome or sway more than one or two Senators.

    I’m satisfied enough that Trump gets the historical distinction of being the only President twice impeached. I would hope this will be a lesson that demonstrates that character matters. I fear that lesson will not extend beyond those of us who already hold that as a value.

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  19. DrDaveT says:

    @Andy:

    I’m satisfied enough that Trump gets the historical distinction of being the only President twice impeached.

    I’m not. I want to seize the moment to Gorilla Glue his rotting corpse to as many GOP representatives and senators as possible.

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  20. James Joyner says:

    @a country lawyer: That is indeed one of my pet peeves. Indeed, even as a DOD employee, the President is merely my boss, not my commander.

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  21. Andy says:

    @DrDaveT:

    I’m not. I want to seize the moment to Gorilla Glue his rotting corpse to as many GOP representatives and senators as possible.

    Ok, what, then, do you propose?

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  22. @James Joyner:

    We mostly agree, I think.

    We mostly do. I think our main area of disagree is that I have gotten to the point that I reject framing the whole thing in legal terms. I recognize the constitutional language moves us all in that direction, but I think using it too literally is part of the problem with the process.

    I don’t think, for example, that the case law on free speech is relevant here. It is, as you say, one of moral guilt, not hitting a criminal trial standard. After all, he is facing disqualification from an office, not prison.

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  23. dmichael says:

    @a country lawyer: I agree with your statement and have been irritated with those who throw around this statement, BUT, in this context, Trump had the power to call in the National Guard (“and the militia when called into actual service…”) to protect the Capitol. He intentionally didn’t.

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  24. rachel says:

    But, of course, Castor and company could have stood up and said “watermelon, cantaloupe” for hours on end and GOP members would state how compelling a presentation they had made.

    These things happen when too many members of a jury are also accomplices.

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  25. Gustopher says:

    @Andy: I think he was very clear. I just don’t know whether to take him literally, seriously or both.

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  26. Ken_L says:

    One of the most nauseating aspects of this exercise has been the number of pundits writing as if the way the House managers presented their case could decide the outcome. They did nothing but pander to the dishonesty of Trump Republican senators who pretended they would make their minds up after considering the evidence and arguments.

    The stand-out was Jonathan Turley, who attended a meeting with Trump Republican senators recently to coach them in the specious argument that Trump was a private citizen who couldn’t be tried, and therefore the proceedings were null and void. It was pointless listening to anything the House managers had to say. Having done that, he blandly wrote an op-ed today complaining that the House managers hadn’t introduced sufficient evidence to prove their case!

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  27. James Joyner says:

    @David S.: The line from that report: “Sen. Mike Rounds (R-S.D.) said that he thought Rep. Ted Lieu’s (D-Calif.) line about being concerned not about Trump running again and winning but Trump running again and losing was ‘a very powerful statement.’”
    It seems a reasonable thing to write down.

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  28. James Joyner says:

    @Steven L. Taylor:

    I don’t think, for example, that the case law on free speech is relevant here. It is, as you say, one of moral guilt, not hitting a criminal trial standard. After all, he is facing disqualification from an office, not prison.

    We agree. The problem is that the House charged him with “incitement,” which is a specific criminal charge. But the broader language of the impeachment article conveys that it is really about more than that.

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  29. @James Joyner: But, of course, if the House had used a non-legal charge the GOP Senators would have said the impeachment was invalid because it didn’t charge with a “high crime or misdemeanor.”

    It also occurred to me this morning is that calling a system wherein there is no discovery nor the ability for both sides to compel witnesses is hardly a trial. We should stop pretending this process (and not just this time)( is a trial in the legal sense and talking about it that way (although I have no illusions that we actually will).

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  30. Kathy says:

    @Steven L. Taylor:

    I’m considering changing my first and most important rule of politics to “No one dares even breathe without a covered ass.”

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