I believe without reservation, even before the trial runs its course, that Donald Trump is guilty of insurrection. In my mind, the first thing it comes down is the injunction more than a hundred years ago by Chief Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court, that "falsely shouting fire in a theatre and causing a panic” is not protected speech. It has since been pared down to the simpler warning, “You can’t shout fire in a crowded theater.”
Trump was in a crowded theater. And Trump shouted fire. Not just at his revolting “Save America” rally on the day of the insurrection, but in the days and months after Election Day itself. When it comes to repeatedly persuading his followers that the election would be fraudulent if he came out the loser and that “We’re not going to let the election be taken away from us,” Trump was shouting fire even before the election.
Given where all of it led on January 6th, Donald Trump is guilty of insurrection. If Oliver Wendell Holmes would convict him, the Senate should too.
But sad to say, this conclusion comes with a caveat: it’s not an open-and-shut case. For four years we saw how slippery this man is. As incendiary as his words were at the rally, he always stopped short of unequivocally urging the mob to take the Capitol by force. True, after Donald Jr. warned unfaithful members of Congress during the rally that “We’re coming for you” and Rudy Giuliani summoned the mob to “trial by combat,” the then-president did nothing to calm the chaos they were coaxing. In fact he praised their fighting spirit. And coaxed the crowd even more. But that alone won’t convict him. To the contrary, his slippery style might give cover to sympathetic senators to acquit him.
Which leads to the second thing it comes down to: the question posed by vaudevillian Chico Marx when in a comedy routine, his wife found him in bed with another woman and he denied he’d done anything wrong, asking, “Who you gonna believe, me or your lying eyes?” Trump’s calls for overturning the legitimate election, his calls to “Stop the Steal,” were on public display for all the world’s eyes to see. But now his defenders’ arguments amount to Chico’s cheeky question, “Who you gonna believe, me or your lying eyes?” As lead House impeachment manager Jamie Raskin said at the very start of his argument for the prosecution, unless you believe that Donald Trump was just an innocent bystander, he’s guilty.
Guilty as sin.
If only that logic were all there is to ponder— in other words, the facts— Trump would lose his trial. But there’s something else at play: politics. Even though a majority of senators has openly declared that Trump incited the insurrection, a simple majority is not enough. It takes 67 to convict. This alone makes me think that if I were a betting man— and I am— I would not bet on a conviction.
But here’s what might be a saving grace: if politicians are good at anything at all, they’re good at reading trend lines, and the trend lines right now are not going in Donald Trump’s direction. Several public opinion polls just released, although there are small discrepancies in the numbers from poll to poll, show that a majority of Americans— typically about 55%— believe Donald Trump should be convicted.
Of course most Republican senators are attuned not to the nation’s sentiments but to their own states’. And although in some, the presidential vote outcome did not correspond to the outcomes for the House and Senate, Trump only won half the states. What that means is, there are states that have Republican senators but went for Biden. That is something that some Senate Republicans, who will soon vote on the fate of Donald Trump, will not ignore.
They also won’t ignore the trend line in Georgia. Although Georgia is still run at the state level by Republicans, two Democrats just replaced two Republican senators in Washington. If it could happen there, it could happen almost everywhere.
Another saving grace is this: as we already have seen even in the first hours of the prosecution of the former president, the House managers have some new tricks up their sleeves with evidence we hadn’t seen before. And, since they have not foreclosed on the possibility of calling witnesses, there is a chance they will, which would mean they have even more tricks to pull out.
It doesn’t hurt of course that in his debut before the Senate, Trump’s first lawyer fell flat on his feet. Combined with his superior but still imperfect partner, it was enough to switch Louisiana Republican Bill Cassidy to the view that trying Trump is constitutional. "President Trump's team were disorganized,” Cassidy said. “They did everything they could but to talk about the question at hand and when they talked about it, they kind of glided over, almost as if they were embarrassed of their arguments.”
Personally I cut them a shred of slack. Neither has been involved before in either constitutional arguments or presidential politics, certainly not on the world stage. One hasn’t even met the man he’s now defending. And against the resources of the Democratic House, they had all of one week to prepare for this. But still, seeing them on opening day, it’s hard to conceive that as the trial runs on, their sleeves hold any tricks at all.
So, will the Senate convict the former president? Stranger things have happened. Like I say, I wouldn’t bet on it but at the same time, I wouldn’t bet a whole lot against it.
And if moral victories count for anything, never forget that win or lose, if you believe as I do that Donald Trump is guilty as charged, you are in league with the majority of Americans, who feel the same way.
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For almost five decades Greg Dobbs has been a correspondent for two television networks, a political columnist for The Denver Post, a moderator on Rocky Mountain PBS, and author of “Life in the Wrong Lane.” He has covered presidencies at home and international crises across the globe. He won three Emmys, and the Distinguished Service Award from the Society of Professional Journalists. This essay and others also are published— with images— on BoomerCafe.com.
Well said...thank you Greg!
He's been setting this up for four years.
But tell me, Greg, how does one fall flat on his feet?