Trump may have the upper hand | Steve Berman

After a rousing speech made from the well of the Senate chamber, the same place that was occupied for a short time by Jacob Chansley (aka Qanon Shaman, who is disappointed he didn’t win a pardon from President Trump), now-Senate Minority Leader Mitch McConnell has not followed through with accountability for the president’s impeachable acts. McConnell voted with 45 other Republican senators against tabling a point of order raised by Sen. Rand Paul, declaring the post-term impeachment trial “unconstitutional.”

The problem is, the impeachment is perfectly constitutional.

Former federal prosecutor Andrew McCarthy noted “[the] Constitution gives the Senate plenary authority over the trial of impeachments. History and precedent are on the side of those who argue that impeachment trials of non-incumbents are constitutional, but that is beside the point.” The point is that the Senate has enough votes, even with 45 Republicans objecting, to continue the impeachment, and continue it will.

Earlier, before Trump departed, McCarthy (who supports censure) argued that Trump deserves impeachment, but that House Democrats once again presented a deeply flawed case. Of course, there are as many legal opinions on what constitutes a “good case” as there are lawyers, but, again, the point is that what Trump did, is a betrayal of what presidents are supposed to do, and therefore deserves the maximum accountability for his actions.

McConnell still has a strong grip on Senate Republicans. He remains in deep negotiations with Senate Majority Leader Chuck Schumer on a power-sharing agreement which is necessary to manage the 50-50 split Senate. The key to the agreement is preserving the filibuster. As my colleague David Thornton explained, Schumer is under pressure from progressive groups to ditch the filibuster completely. Some moderate Democrats, however, see value in the time-honored Senate rule, looking forward to a time when they may not be in control (and their “control” is hairline-crack thin).

The question we must ask is if McConnell’s vote to consider Paul’s motion is a signal that there isn’t enough support for conviction on Trump’s insurrection charge.

After the November election, it was McConnell who worked with former Sens. Loeffler and Perdue to get Trump to “fire up the base.” Greg Sargent wrote in a Washington Post column published the day before President Biden’s inauguration, that “when McConnell claims ‘other powerful people’ fed the mob those lies along with Trump, he’s talking about his own senators.” Indeed, McConnell could be talking about himself.

It would require admitting that this entailed keeping GOP voters in a state of delusion about Trump’s hopes of still prevailing for as long as Republicans thought they could get away with. It would require admitting that many elected Republicans facilitated the fomenting and unleashing of authoritarian currents inside the party that now have a majority of Republican poll respondents convinced that GOP leaders didn’t go far enough in trying to subvert the results.

By isolating Trump as the only actor who instigated the mob with “lies,” McConnell is trying to insulate the rest of his party from blame for its direct participation in sustaining them for so long. This is not blunt truth-telling. It’s evasion and buck-passing of the most craven and transparent kind.

In the next two weeks, the Senate (likely the Judiciary Committee) will examine the lies, the motivations of the mob, the former president’s actions—or inactions—and the complicity of certain GOP senators who went along with the political charade of a “stolen election” to assuage Trump’s enormous ego and his off-the-rails fantasy he fed to his supporters.

For McConnell to support conviction will require a very healthy dose of humility, and not a small amount of bile for Sens. Josh Hawley and Ted Cruz, who some Democrats feel should be expelled. Perhaps it’s better not to pull at the threads and watch the entire GOP unravel, along with McConnell’s ability to influence legislation, even if it means allowing Trump to “get away with it” and be free to run again in 2024.

Maybe McConnell and other Republicans are counting on President Biden to put out the raging dumpster fire still burning in pro-Trump circles. That’s unlikely to happen—just read the headlines in the Daily Wire, or even National Review and you’ll see why. It’s possible Senate Republicans, who know Trump needs to be held accountable, are expecting Trump to be tied up in prosecutions and legal action for years, making it impossible for him to mount a campaign in 2024. But unless some prosecutor actually succeeds in convicting Trump and putting him in prison (a sad, awful precedent for any former POTUS), it’s not going to stop the master manipulator from doing what he always does.

Trump has been known to hold off lawsuits and legal action for years. He managed to keep his tax returns locked up for his entire term of office, taking the case all the way to the Supreme Court. If there’s one thing the Queens real estate developer knows how to do, it’s delay and divert legal action. Courtrooms won’t stop Trump from running in 2024.

The only way to stop him is for the Senate to convict him in this impeachment trial. That may mean Trump has the upper hand. With some strong testimony from his Acting Secretary of Defense, former and current law enforcement officials, and lawmakers, he may present enough of a compelling defense that in order to convict, Senate Republicans will have to admit that they went along with the “stop the steal” schtick and share culpability for its results.

That means Trump may have the ability to sink the GOP for years, in exchange for it being rid of him. Then again, if he stays, it may be sunk for years anyway—but in Senators’ minds, they are more concerned with it sinking with them aboard the ship.

McConnell’s vote with other Republicans on Sen. Paul’s legally weak point of order may signal that the GOP has chosen its own short term power over the long-term health of the party.

Follow Steve on Twitter @stevengberman.

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