On February 12, when 43 Republican Senators voted to acquit former President Trump of the charge of incitement to insurrection, they reaffirmed the Faustian bargain they had made with him in 2016. Republican Senator Mitch McConnell was the central figure in the GOP’s bargain: in exchange for tax cuts and conservative judicial nominations, he and the Republican senators enabled, supported, tolerated, and lent mainstream conservative legitimacy to Trump. For a month after the 2020 election which Trump had obviously lost, McConnell remained silent while Trump repeated the “stab in the back” lie about the “stolen election.” So, it was not surprising that on February 12, 2021, faced with overwhelming evidence of Trump’s guilt, that McConnell voted with 42 other Republican Senators to acquit him. He was at the center of that nullification. We do not know if McConnell could have found an additional ten votes to convict Trump, but there have been no reports that he tried to do so or that he was willing to join a minority short of the needed 67 votes on the basis of the law, the constitution, the facts and the evidence.
For Senators Josh Hawley, Ted Cruz, Ron Johnson and Lindsay Graham, and no doubt others, the vote was also an expression of ideological agreement with Trump and Trumpism. For them the bargain with Trump had moved beyond McConnell’s marriage of convenience to an alliance of shared ideological conviction or of a cynicism so deep that they repeated his lies in public. Their problem was that the House Managers were led by former law professor Jamie Raskin, with a remarkable team composed of Diana DeGette, David Cicilline, Joachim Castro, Eric Swalwell, Ted Lieu, Stacey Plaskett, Joe Neguse and Madeline Dean. That team offered a blend of argument and evidence, from their pretrial brief to Raskin’s opening statement, and those of others that set a formidable standard of clarity and causal reasoning that historians would applaud in their own work. The vote to acquit by the 43 Republican Senators was a clear case of jury nullification, that is, of rendering a verdict that ignored the weight of fact, evidence, and argument.
If the Republicans did not want to admit that a team of Democrats made the case based on the Constitution, the law and the facts, they could have sought shelter in the warm embrace of Charles Cooper, the lawyer with close ties to the Republican legal establishment, who several days before the trial argued in the pages of the Wall Street Journal that impeaching a former President was indeed within the constitutional powers of the Senate. Or, they could point to the 144 constitutional experts, include leading conservatives, who issued a public statement that the First Amendment protection of free speech did not defend the right of the President of the United States to incite a mob to attack the Capitol. Or, being the lawyers many of them are, they could admit that Raskin, and the team of House Managers shredded Trump’s lawyers efforts to use those arguments. Conservative legal scholars and practitioners, as well as the House Managers gave McConnell the arguments, he needed to attempt to rally his Republicans majority to convict Trump. He could have done so with paeans to constitutional originalism, and of the prerogatives of the Senate.
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