Despite the shameful failure of 43 senators to honor their oaths, the outcome of the Senate impeachment trial offered hope for the cause of accountability for former President Donald Trump and others who backed the Big Lie that gave us the Jan. 6 insurrection: that the 2020 election was stolen. The denouement was by far the largest number of Republicans ever to cross party lines to convict a president of their own party in an impeachment trial. Seven did so, as opposed to the single such vote in Trump’s prior impeachment.
When the trial resumed Saturday morning, it was expected that there would be no witnesses. Then a bipartisan 55-45 vote opened the door to the testimony from at least one person — Rep. Jaime Herrera Beutler, R-Washington. She had information about a phone conversation in the middle of the insurrection in which Trump seemed to welcome the violent chaos — revealing his impeachable intent to incite the mob. Negotiations then led to a compromise: a “stipulation,” or agreement by both sides, that her statement about Trump’s bad intent would be admitted into the record.
Trump could have saved lives
Some have expressed disappointment that the Democratic House impeachment managers did not haul Herrera Beutler before the full Senate and put her on the witness stand. But we think the managers made the right series of calls here — calls that paved the way for the seven GOP votes to convict.
One objection is that if the managers were not prepared to follow through with live witness testimony, they should not have included this possibility in the organizing resolution or pressed the issue Saturday. That is well-intentioned but wrong.
There had to be an option for witnesses in the organizing resolution because no one knew how the trial would go. And in fact, Trump’s defense opened the door to witnesses. Instead of simply standing on the constitutional issue that there should not be a trial, his bumbling lawyers argued that Trump’s intent was benign and that there had not been due process — in part because there had not been witnesses. By the time they rested on Friday, the witness issue was cued up.
Then the full details broke of Trump’s conversation with House Minority Leader Kevin McCarthy, which he had described to Herrera Beutler and other lawmakers. Trump’s response to McCarthy’s desperate pleas for help during the middle of the riot was, “I guess they care more about the outcome of this election than you do.” That callous indifference to the deadly destruction of Jan. 6 is shocking, even by Trumpian standards.
A different answer from Trump in that moment might have saved lives. Coming on top of his words of insurrection to supporters at a rally earlier that day, these words make him an accomplice in the attack. Herrera Beutler and other reporting also revealed that Trump first tried to blame antifa in the conversation, which McCarthy dismissed with an expletive before Trump revealed his damning view of the violence at the Capitol.
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All this had to be put into evidence. By demanding and winning a vote on witnesses, the managers made that point. And they made Trump’s intent the focus of the last day of the trial, for today and for posterity.
When they won the witness battle, Democrats capitalized on it to secure the substance of the evidence that the congresswoman would have presented if called. Trump’s counsel was forced to stand up and stipulate as to the president’s impeachable and possibly criminal dereliction of duty. They got the same content as they would have secured with live witness testimony, and they did it without facing the potential risks that come with a cross examination.
Witnesses posed risks for Democrats
Those who say that it would have been more valuable to have Herrera Beutler’s live testimony may not recall the last time we had witnesses in a presidential impeachment trial, President Bill Clinton’s in 1999. Back then, the lawyers simply took depositions during a trial hiatus and then played video excerpts of the depositions on the Senate floor. The stipulation on Saturday achieves the same purpose.
The outcome also spared the impeachment managers other risks: a debate over reciprocal one-for-one witness trade, a fight over testimony from the likes of House Speaker Nancy Pelosi or Vice President Kamala Harris, and while that played out, the potential erosion of GOP votes for witnesses or even for conviction.
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The compromise offered one final advantage, perhaps the most important one of all. The fact that Trump’s team agreed to enter evidence of Trump’s conversation with McCarthy into the trial record will inform possible future and civil criminal proceedings turning on Trump’s intent and so his culpability. Just this week we learned new details of a criminal investigation into Trump’s efforts to foster his Big Lie in Georgia, including his infamous request to Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.” This is an apparent violation of Georgia criminal law, including for soliciting election fraud.
Saturday’s stipulation on the Herrera Beutler statement and every other piece of evidence in the trial will be important to the Georgia investigation and other possible criminal and civil accountability measures pursued by states and the federal government. Senate Minority Leader Mitch McConnell highlighted that in his extraordinary remarks after the vote encouraging civil and criminal scrutiny of Trump’s acts.
The House impeachment managers have made the case for Trump’s culpability and preserved a mountain of evidence for future actions. Now the push for accountability continues.
Norman Eisen (@NormEisen), a former ambassador and ethics czar for President Barack Obama, was impeachment counsel to House Judiciary Committee Democrats in 2019-2020 and is a senior fellow at Brookings. Katherine Reisner (@katiereisner), a Truman National Security Project fellow, was counselor to the secretary and deputy secretary at the Department of Homeland Security in the Obama administration. Both are outside counsel to the nonpartisan Voter Protection Program.