Common Sense and Trump’s Second Trial

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We Americans like to think that no one in our land is above the law. But we all know that’s not really so. The higher you go among the “elite,” the more weak and confused the law becomes. If you want proof, just watch the second Senate trial of Donald J. Trump for treason and other high crimes and misdemeanors.

The trick to observing clearly is to compare how a similar trial would go for a common man—or even a member of Congress—accused in a civil or criminal court of the very same acts. So let’s compare the ordinary jury trial of that hypothetical man, named Sam J. Trump, who was never president.

Except for the standard of proof—more likely than not versus beyond a reasonable doubt—it doesn’t matter whether the trial is civil or criminal. There was enormous harm: the deaths of Officer Brian Sicknick and four others, numerous personal injuries, widespread property damage, and immense pain and emotional suffering among members of Congress, their staffs, and the officers defending the Capitol. The fundamental question would be whether Sam was responsible for that harm.

In our country, both criminal and civil courts observe a strict division of labor. The judge decides the law. Unless both parties waive their jury rights, juries decide the facts.

The question whether an ex-president can be tried for crimes committed while still in office is a pure question of law. It would be the very same abstract legal question if Don were accused of stealing White House furniture or robbing a liquor store. In the case of Sam, the judge—and only the judge—would decide any similar abstract question of purely legal immunity.

In Don’s case, many of the senators are trying to make that legal immunity the most important, if not the sole, issue. Yet the senators are the jurors, not the judge. The Constitution so designates them, and they even call themselves “jurors.”

So what business do they, as jurors, have in deciding a purely legal issue? In Sam’s trial, the judge would ignore their questions and statements on the subject of immunity and direct the court reporter to strike them from the record. Instead, the judge would direct the jurors to focus on two key factual issues. First, did Sam in some way intend to cause the harm? Second, did he in fact cause it, or did someone or something else?

These two factual issues are interrelated. A basic principle of law—both criminal and civil—is that a man is presumed to intend the natural consequences of his acts. If you stab, shoot or bludgeon someone, you are presumed to intend to cause the resulting injury or death, unless you can prove some extraordinary circumstances that exonerate you. The level of your intention—whether purposeful, reckless, or negligent—determines the degree of your culpability and your punishment, but not your responsibility. Your responsibility is a question of fact—of common-sense consequence—for the jury to decide.

Causation, too, is a matter of common-sense fact. If a Mafia capo orders his “muscle” to “whack” an informer, and it’s done, doesn’t the capo bear some responsibility for the murder? So the core question in both Don’s and Sam’s cases is the same. Was what happened more like what the Mafia capo did, or more like a newspaper columnist viewing the election with alarm and nothing more? Juries decide this point in ordinary cases because it’s a question of fact—what actually happened—or at worst a mixed question of fact and law, which juries can decide.

In Sam’s case, that’s precisely what the judge would ask the jury to decide. But in Don’s case, the Republican jurors don’t want to decide it at all. They want to confuse the public by making them think the pure legal issue—which juries are never supposed to decide—is more important. They want the public, and especially the 75 million who voted for Trump—to take their eyes off the ball, namely, core question of whether Don was responsible for the Capitol Insurrection. This is par for the course for a party that has made distraction the engine of its politics.

The First Amendment and “free speech” are also irrelevant because neither wiped out criminal or tort law. The age-old law that holds all people responsible for injuries they cause others and others’ property still exists. That’s what Oliver Wendell Holmes meant when he said that free speech is no defense to crying “Fire!” in a crowded theater.

Whenever speech creates a “clear and present” danger of real harm, it’s no longer protected. But in Sam’s case, the jurors don’t get to decide where to draw that line. Only judges do. If the jurors go too far in condemning speech as acts, the trial judge or (more likely) the judges on appeal will correct them. All Sam’s jurors are supposed to decide, based on common-sense understanding of cause and effect, is whether Sam intended to cause the mayhem and actually did so, or whether some other intervening cause exonerated Sam.

So who plays the role of judge in Don’s case? Who decides the purely legal question of whether an ex-president can be tried by the Senate after leaving office? Who decides where to draw the line between speech and action?

Here’s where our Founders nodded. In a Senate trial after an impeachment, there really is no judge. The Chief Justice of our Supreme Court is supposed to “preside” over the trial. But his or her powers and duties are unspecified.

Anyway, our own Chief Justice Roberts has declined the honor. No doubt he did so because the job would do neither him nor his Court any good. If he performed his role like an ordinary trial judge, he would take the heat for depriving Republicans of their abstract red herrings (the legal issues). He also would impair the public’s trust in our Supreme Court. Even in ducking the job, as he did, he failed in his duty to hold the “jurors” to the ordinary function of juries in every other case and to require them to find the facts like real jurors.

So who will preside? It will be eighty-year-old Senator Patrick Leahy, Democrat from Vermont, who holds the post of “President Pro Tempore” of the Senate by virtue of his seniority. But Leahy will also be a juror, thereby raising an obvious conflict of interest and inevitably mixing the two functions that in Sam’s case would be strictly separate. And if Leahy attempts to separate them in Don’s case, he will inevitably be accused of egregious partisanship. So most likely no one at all will perform the function that the judge would perform in Sam’s case, leaving random jurors to claim that it’s all their bailiwick.

Our judicial branch could not resolve the legal issues in Don’s case because the Senate is supposed to be the supreme and unreviewable authority in trials of impeachment, so as not to impair the separation of powers. Impeachment and conviction are supposed to be “political questions,” on which the Supreme Court cannot comment, even if the proceedings confuse the facts with the law, and even if that result confuses and disappoints the public.

There are three points to take away from this dismal state of affairs. First, Don will never be held to account for his behavior, even in theory, because about a third of senators will steadfastly refuse to address the factual issues of intent and responsibility that would be for jurors to decide in Sam’s case. Instead, they will focus on the pure legal issues that the judge would decide in Sam’s case but in Don’s case there is no one definitively authorized to decide.

Second, in our age when facts and truth mean nothing and everything is arguable, there will be no closure, ever, on whether the ex-president caused the Capitol Insurrection or intended to do so. Historians will continue to debate the issues as long as our nation’s memory survives. In the short term, our people will continue to live figuratively on different planets while actually inhabiting the same rapidly warming one.

Finally, the straitjacket of a written constitution that our Founders left us will continue to strangle us in unforeseen ways. Not only does California, with its 39.5 million people (in 2019), have the same two votes in the Senate as Wyoming, with only 0.58 million. Not only has the Electoral College given us five presidents elected by a popular minority, including the one now under trial. Not only is the filibuster hog-tying us into inaction while we face five distinct existential threats. But our people also will never have any official closure on the key factual questions in the Capitol Insurrection. The Internet’s sewage will bury all.

All our species can hope for is that, millennia in the future, when the US is as dead as ancient Rome, those who wish to revive democracy will do better than to bind it to a deeply flawed contract between slave states and free states, and to make it nearly impossible to change. Instead, they will do what the Brits have done: respect an unwritten constitution that wise leaders can change gradually, with great respect and great wisdom, as society evolves. At the present rate, our democracy has little hope of surviving even half as long as the Brits’ has, namely, 805 years (so far) since Magna Carta in 1215.

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