Donald Trump has, with luck, eluded the consequences of being a failed gambling czar with no respect for the law. But his luck has reached a new level with Congressional Democrats refraining from holding him accountable for breaking the law and violating the Constitution as regularly as the rising and setting of the sun for four years. (See: December 18, 2019, Congressional Record, H-12197).
Now the Democrats are moving forward into an impeachment trial using only a fraction of the voluminous incriminating evidence against a president who incited insurrection against Congress and the Constitution. Trump directly incited an armed mob bent on mayhem against both Democrats and Republicans in the House and Senate who were gathered to count state-certified electoral votes under the Twelfth Amendment and the Electoral Count Act.
The Joint Session of Congress heard the vile mob chant the chilling phrase "Hang Mike Pence," the Vice President who had fallen from Trump's favor by refusing to compromise his constitutional duty to count rather than to second-guess the state-certified votes.
The Democrats know if the Senate neglects to convict Trump - requiring a two-thirds majority - and prohibit him from running for the White House ever again - requiring only a simple majority - they will be unleashing a vengeful monster loaded with cash for a 2024 presidential run. Republicans should fear that prospect to avoid the risk of internecine warfare.
So wouldn't you think with the election over the impeachment managers would go full throttle before the national television audience and conduct a trial for historical accountability, the rule of law and protection of posterity?
Instead, Democrats are signaling failure by prejudging how Republicans will vote before seeing what should be gripping trial evidence and the rising outrage of the American people. Trump's polls are steadily falling already.
Prejudgment leads to another Democratic mistake - settling for a short trial. Even Senators Bernie Sanders (D-VT), and Sheldon Whitehouse (D-RI), have said they want a truncated impeachment trial so the Senate can focus on the Covid-19 driven stimulus bill. This legislation is already moving quickly. Besides, the Senate can drop its routine of working three days a week and start working five days a week or more just as do most Americans.
There are other self-inflicted constraints. Democrats should have subpoenaed Trump and Pence immediately after the House impeached Trump on January 13, 2021. Trump has spurned an invitation to testify voluntarily under oath by lead House manager Jamie Raskin (D-MD). House and Senate Democrats should know the hazards of declining to issue a trial subpoena to Mr. Trump because special counsel Robert Mueller's investigation was compromised by his failure to do so. Why follow a losing playbook?
The courts have no jurisdiction over impeachment questions the Supreme Court said in Nixon v. United States, 506 U.S.224 (1993). The Senate runs its impeachment trial as it chooses, including holding Mr. Trump's lawyers in contempt if they attempt to disrupt the proceedings or continue to argue issues they have lost, like the absence of jurisdiction over a former president. As a no-show in a civil, not criminal proceeding, Mr. Trump's defiance of a subpoena would justify an adverse inference of guilt by the Senate.
There is also no sign the Democrats are seeking other witnesses such as Garrett Miller who has said he and others were operating at the direction and approval of President Trump. The liar-in-chief had just told his supporters at the notorious rally on the Mall, "We're going to walk down, and I'll be there with you," before Trump the betrayer retreated to the White House to witness on television the violence he provoked and incited.
Families of victims deserve to be heard. And members of the Senate and the public should hear of the detailed thuggery by Trump in Georgia and at the Justice Department. The prosecution must go deep, starting with the testimony of Georgia Secretary of State Brad Raffensperger and then acting U.S. Attorney General Jeffrey Rosen.
The Democrats are not subpoenaing Mike Pence to testify about Mr. Trump's bullying him to reject state-certified electoral votes in violation of the Twelfth Amendment and the Electoral Count Act in key states that would deny Joe Biden's electoral vote majority. Pence's refusal angered Trump who then resorted to an insurrection against the Capitol to accomplish by force and violence what he was unable to accomplish by bullying.
Given their penchant for a short trial, the Democrats seem unlikely to highlight Trump's pattern and practice throughout his presidency of flouting the Constitution and duty to take care that the laws be faithfully executed, including protections for all Americans. Trump's former National Security Adviser, John Bolton, has declared that obstruction of justice was "a way of life" at the White House.
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