Fighting words have frightful consequences

The second impeachment trial of Donald Trump starts tomorrow. He is accused of inciting the January 6 attack on the Capitol. His lawyers are arguing two things:

1. He can’t be convicted because he is no longer in office.
2. As a citizen with constitutional rights, whatever he said before and on January 6 is entitled to protection as freedom of speech.

These arguments are nonsense.

He wouldn’t be impeachable if he were no longer in office, but preventing the trial and conviction would mean he can’t be held accountable for acts committed while in office and is therefore above the law. You can’t uphold an oath to protect the Constitution if you are prepared to put a former president beyond the law. Besides, there is a precedent for a trial after someone (a Secretary of War, not a president) left office.

Freedom of speech has its limits. Most notoriously you aren’t entitled to yell “fire” in a crowded theater if there is no fire. That is analogous to what Trump did before and on January 6: he lied about the election having been stolen and then told his supporters to march on the Capitol, a move not included in their demonstration permit, and fight to prevent the tabulation of the Electoral College results. The merits of the case are clear.

But the politics are just as clear: all but a handful of Republican Senators are committed to voting against conviction. They are both wedded to Trump as their party leader and fearful of any criticism from him that could hurt their prospects in primary elections. No one in Washington is currently expecting 17 Republicans, the number needed for a two-thirds vote to convict, to defy Trump.

This will look like a defeat for the Democrats, but I have to wonder about its longer-term impact. Sticking with Trump is causing prominent Republicans and thousands of rank-and-file members to leave the GOP. The numbers are less significant than the quality. President Biden is already more popular than Trump ever was while in office. If he were to remain anywhere near his current approval ratings, lots of Americans will not be feeling the usual need to punish the incumbent in 2022’s mid-term election. The argument is even stronger for 2024, provided Biden is successful in ending the epidemic and reviving the economy.

That’s a big if. But it would be hard to fault the Administration yet in its pursuit of these two top priorities. Vaccines are flowing more rapidly and masks are being required more widely. Plans for reopening schools are progressing. So, too, is the Congressional effort to approve a $1.9 trillion relief package, if necessary by avoiding the Senate filibuster (which would require 10 Republicans to side with the Democrats in approving the package). Biden talked unity at his Inauguration, and he clearly would prefer it, but he isn’t waiting for the Republicans to make nice.

That’s good negotiating strategy from the candidate who didn’t write The Art of the Deal. Republicans will come around if they see that the American people prefer what Biden is offering. It has to be big and effective to be convincing. Only if he can convince Republicans he’ll do it without their votes will at least some of them be prepared to vote with him. I’d expect some last-minute compromises–Biden has already indicated he is willing to delay doubling the minimum wage. That is likely wise, as unemployment is still high and needs to get down to its prior lows before the economy will be in a position to both pay and still continue to create jobs.

All this leaves foreign policy, the major concern of peacefare.net, playing second fiddle. But without recovery from the virus and the recession, America won’t be able to play the leadership role in the world that Biden aspires to. He has been skillful in making some quick moves–extending the strategic arms treaty with Russia and enabling humanitarian aid to continue to go to Yemen by canceling Trump’s last-minute designation of the Houthis as terrorists are savvy moves.

Biden is still in a stand-off with Iran over who returns first to compliance with the nuclear deal, but let’s hope he soon finds a formula for getting back in and once again putting Tehran at least a year from gaining nuclear weapons. There too Trump’s fighting words have had frightful consequences.