Like any honest observer, I found the Democrats’ opening presentation in Donald Trump’s second impeachment trial on Tuesday mawkish: groan-inducing paeans to the Founding Fathers and “our democracy,” montages with over-the-top captions, decontextualized references to Warren Hastings and goodness knows who else. More than anything else, Rep. Jamie Raskin (D-Md.) gave the false impression that presidential impeachment is a well-understood process, comparable to a legislative veto or a judicial confirmation, rather than a highly speculative matter about which, almost by definition, it is impossible to make sweeping arguments.
Fortunately for the Democrats, no description could possibly do justice to the stupidity of the response by Trump’s lawyers. Bruce Castor asked whether “we still know what records are.” He quoted Alexander Hamilton. He dismissed the idea that the British constitution should be of any interest to those attempting to make sense of the American founding. He said: “This trial is not about trading liberty for security. It is about suggesting that it is a good idea that we give up those liberties that we have long fought for.” He appeared on more than one occasion to be under the impression that he was there to defend the First Amendment rights of the January 6 protesters. He seemed to quote directly from the track changes feature on Google Docs: “The floodgates will open. I was going to say ‘release the whirlwind’ which is from a Biblical reference but when I got here I discovered that phrase was already taken, so I changed it to floodgates.” He opined that “Nebraska is quite the judicial thinking place.”
So much for the opening act. The main event from David Schoen was a rant about “cancel culture.” He screamed about due process and insisted that his client, who has refused to take part in the proceedings, deserved the right to be there. He contradicted his partner by invoking the rights of accused persons in the British legal tradition. He used the phrase “insatiable lust.” He insisted that by speeding up the trial process, Democrats were violating some deep but unwritten principles of the same common law that are supposed to be irrelevant here, albeit without noting that the timeline was accelerated with the cooperation of the Senate Republicans who will be voting to acquit Trump. He ended with a poem by Longfellow.
There is a real sense in which none of this matters, of course. Trump’s acquittal in a few days’ time is not remotely in doubt. The opening statements for both sides are rhetorical gestures that are not even ostensibly meant to persuade Senate jurors to vote for or against conviction.
Still, I have no idea what Castor and Schoen were doing Tuesday afternoon. Trump would have been better served having the My Pillow guy give a two-hour infomercial or having Ted Nugent perform “Wang Dang Sweet Poontang” live on the Senate floor. While I have come around to the view that the Constitution allows non-seated politicians to be subject to impeachment proceedings and that removal from office and disqualification are distinct penalties, the opposite argument is equally respectable. Any number of qualified lawyers could have made it on behalf of the former president.
Tuesday was a reminder of one of the great themes of Trump’s tenure in office: his anti-talent for choosing advisers and associates. No president of modern times has been so indifferent to questions about staffing and personnel. Instead of talented lawyers making an intelligent, constitutionally plausible case against the proceedings, Trump hired two flunkies who made the “Stop the Steal” dream team of Rudy Giuliani and Sidney Powell look like Johnny Cochran and Carl Douglas.