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Why the Senate should not rush an impeachment trial

Why the Senate should not rush an impeachment trial
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The most surprising aspect of the House vote to impeach President TrumpDonald TrumpBiden to sign executive order aimed at increasing voting access Albany Times Union editorial board calls for Cuomo's resignation Advocates warn restrictive voting bills could end Georgia's record turnout MORE was not the alacrity with which it acted — just one week from the events that triggered impeachment. A strong immediate reaction could be expected. After all, every member of Congress was forced to flee for his or her life in the face of the mob that disrupted the constitutional process of confirming the Electoral College vote. Vice President Pence himself was forced to hide from the crowd’s chants of “Hang Mike PenceMichael (Mike) Richard PenceSunday shows preview: Manchin makes the rounds after pivotal role in coronavirus relief debate DeSantis, Pence tied in 2024 Republican poll Pence to narrate Limbaugh documentary series for Fox Nation MORE!” Because adoption of Articles of Impeachment is equivalent to an indictment, moreover, such a vote could be taken quickly and responsibly on a relatively thin record.  

Nor was it surprising that this year’s impeachment effort, unlike last year’s, drew Republican votes, allowing mainstream national media to celebrate impeachment as a “bipartisan” effort.  But that characterization disguises the utterly shocking fact, given the events of Jan. 6 and the president’s inflammatory remarks that immediately preceded them, that so few House Republicans voted for the articles of impeachment. One week after running for their lives from the Trump-inspired assault on the Capitol, and having their constitutional process for selecting our president disrupted, 10 House Republicans voted with the Democrats to hold the president accountable. Ten out of 211 — that’s fewer than 5 percent.

In other words, 201 of the House Republicans continued to side with the president, despite the terror and carnage they faced. We will never know, because it wasn’t proposed, how many Republicans would have supported a joint resolution censuring the president for his irresponsible and inflammatory rhetoric; I suspect the number would have been substantial. But we have learned this much about impeachments over the past three experiences: They tend to drive even those members of the president’s party who deplore the president’s conduct back into supporting him. It happened with Bill ClintonWilliam (Bill) Jefferson ClintonIt's time to fix an important religious freedom law Senators introduce bill creating technology partnerships to compete with China Edie Falco to play Hillary Clinton in Clinton impeachment series MORE, and Donald Trump’s support hardened last year after the failed effort to remove him.   

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Viewed in this light, the continued support this week among House Republicans is an alarming reflection of the support the president continues to enjoy among his 74 million voters. In my view, it should inform the approach that the Senate takes to trying the president.   

Specifically, the continued support the president enjoys counsels in favor of proceeding deliberately, with a robust investigation and a fully developed record laying bare for the American people the baseless claims the president has been making about the “rigged” election, his coddling and cueing of right-wing militia groups, and whatever intelligence was provided to the White House, the Capitol Police, and others in advance of the Jan. 6 storming of the Capitol.   

An abbreviated trial will leave the president’s involvement in the insurrection essentially uninvestigated, relying on the notion that his words over the past few months spoke for themselves in encouraging the acts of domestic terrorism. But they didn’t. 

Trump’s lawyers will claim that his rhetoric never expressly encouraged violence, and as such was protected political speech. In addition, there is evidence from social media that many people came to the Washington rally already equipped to storm the Capitol, carrying zip ties to take captives, onions to counteract the effects of tear gas, and various implements, from flags to riot shields, that could be used to smash windows. If that effort was already organized, and the militia groups were going to storm the Capitol in any event, what difference could the president’s rhetoric that morning, however deplorable, have made in inciting an event that was going to occur regardless? 

The point here is not to suggest that impeachment is improper, and conviction is inappropriate. I believe that a plenary Senate investigation exposing the knowing fabrications of voter fraud claims, the directions from the White House to the Department of Homeland Security and FBI to downplay the threat posed by right-wing militias, and the intelligence provided to high-level officials about the danger of violence on Jan. 6 will provide the factual predicate for conviction in the Senate. 

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Without that factual predicate, however, the impeachment trial — even, and perhaps especially, if it results in conviction — may make impossible the healing of our nation’s polarization that President-elect Biden has made one of his top priorities. The perception of a rushed, largely partisan effort will leave millions of Americans feeling disenfranchised and encourage further agitation of estranged Trump supporters outside the normal political process.   

The right approach for the Senate, then, as the more deliberative body, is to conduct hearings and take testimony from affected members of Congress, Vice President Pence, law enforcement, intelligence agencies, and members of the public; to subpoena necessary documents; and to build a case that can be presented to the full Senate and to the nation. This approach will allow the Biden administration to hit the ground running as the factual record is being established, will instill confidence in the general public that the Senate is acting dispassionately, not reflexively, and will begin the essential process of documenting for posterity the causes and consequences of one of the darkest chapters in our history. 

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.