The Senate Trial Will Test Whether Republicans Care Even About Themselves

The whole American government is premised on the idea that politicians will act in their own interests. A Senate that won’t protect itself from attack can’t protect the country.

About the author: Jane Chong is the former deputy managing editor of Lawfare and served as a law clerk on the U.S. Court of Appeals for the Third Circuit.

Barbed wire around the Capitol
(May-Ying Lam)

Last week’s maximum-security inauguration of President Joe Biden and Vice President Kamala Harris rendered all the more surreal the chaos that unfolded on the Hill just weeks before. The assault on the Capitol was an attack on the country, on democracy, on free and fair elections, and on the rule of law. But at the most basic level, it was an attack on what Pierre Charles L’Enfant, the engineer and urban designer who created the initial blueprint of Washington, D.C., designated the “Congress House.”

That description lays bare the unusual interbranch stakes of the coming second impeachment trial of former President Donald Trump. Set aside for a moment whether a Senate supermajority could be moved to vote to convict an ex-president—and possible future presidential candidate—in order to protect the country. Following his incitement of an armed siege on Congress’s own house, can the Senate be persuaded to vote to protect itself? What looks like a vote on the president’s political fate is more fundamentally a vote on Congress’s security—and on the viability of major principles of constitutional power.

The details of Trump’s participation in the events bear repeating. On January 6, the then-president of the United States stood on a stage in front of the White House before thousands of supporters brought to the nation’s capital by his false claims of election fraud. He urged his supporters to “fight much harder” against “bad people” and to “stop the steal” taking place at the Capitol, where a joint session was under way to certify Biden’s Electoral College victory. The throngs immediately complied, scaling the walls and forcing their way through the windows of the nation’s seat of government, ransacking the offices of elected officials, and attacking police officers with lead pipes. Senators, representatives, and their staffers barely made it into lockdown, where they waited for hours in fear of mass execution, many in crowded quarters with colleagues who refused to don surgical masks to prevent the spread of the coronavirus. Bombs were found nearby, close to the Republican and Democratic National Committees’ headquarters. Six people died as a result, including one police officer who was beaten with a fire extinguisher, and another who later died by suicide.

The House’s impeachment resolution charged Trump with “incitement of insurrection,” declaring that he not only “imperiled a coequal branch of Government” but also “gravely endangered the security of the United States and its institutions of Government,” “threatened the integrity of the democratic system,” and “interfered with the peaceful transition of power.” Yet it is the imperilment of Congress, in particular, that helps clarify the significance of Trump’s second impeachment trial for the very structure of American government. It’s the most elementary constitutional stress test imaginable, a test of whether the system of checks and balances ordained by America’s Constitution works at all—or whether, in this age of profound political dysfunction, that system is so broken that even bodily harm and physical mayhem wreaked on the members of one branch prove insufficient to prompt the targets themselves to action.

Call it the primitive counterfactual that went unimagined by James Madison, who, after all, thought human self-interest a sufficient foundation to support an entire theory of balanced government power. In “Federalist No. 51,” Madison offered this justification for the Constitution’s three-part government structure consisting of separate and interdependent legislative, executive, and judicial branches: “The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” The system promised the benefits of limited government by dividing power in a way that ensured competition among the branches. Or in Madison’s pithy phrase: “Ambition must be made to counteract ambition.”

The Senate now finds itself many rungs down in the grand interbranch contest for power and prestige envisioned by Madison, closer to the bottom of Maslow’s hierarchy of needs, struggling with whether to convict a president who publicly incited a violent insurrection against it. The choice is first and foremost about establishing a precedent that vindicates Congress’s right to be safe. That’s as an institution vested with the public trust for crucial functions such as ensuring the peaceful transition of power, and as a group of ordinary people put into extraordinary harm’s way by the nation’s chief executive for doing their constitutional duty.

First, context matters. The Senate will vote on the heels of Congress’s shameful failure to decisively reject the stated goal of the insurrectionists to overturn the results of the election. Only hours after rioters forced the evacuation of lawmakers in the middle of their vote to certify the election, eight Republican senators and 139 representatives—two-thirds of the entire GOP caucus—voted to overturn the election and give Trump and the rioters exactly what they wanted. Underscoring the deep dissension in the House, even following the armed attack, only 10 Republican representatives joined their fellow Democrats in voting to impeach Trump for “incitement of insurrection.” These choices eliminate any room the Senate might have had to couch acquittal as anything other than normalization of strongman rule. Without a Senate conviction, the history of the siege gets rewritten in real time, from a terrorist attack to a political act.

Second, then–Senate Majority Leader Mitch McConnell’s refusal to reconvene the Senate early removed from consideration the instant remediation that a national emergency requires and ensured that the trial wouldn’t begin until after President Biden had been sworn in. Thus, for the first time in U.S. history, the Senate will preside over an impeachment trial whose focus is not whether a president should be removed from power but whether he should be disqualified from regaining it. Nakedly, then, the Senate’s verdict will serve not an immediate operational function, but a lasting strategic and symbolic one. It is self-evidently a vote for the future, one that will determine Trump and his supporters’ ability to shape national politics over the next four years, by virtue of deciding his eligibility to take another run at office. It is a message to would-be insurrectionists—and to populist politicians willing to resort to extreme measures to appeal to their base—about what lies within the bounds of political toleration in America, and what does not.

Lastly, the importance of the Senate’s vote in setting a security precedent was heightened by Trump’s initial refusal to condemn the takeover and continuing refusal to acknowledge the part he played in it. In the middle of the siege, instead of condemning the violence and acting to shut down his supporters, Trump issued remarks via recorded video telling the rioters to “go home” but reasserting their righteousness in the face of “a fraudulent election.” He declared, “We love you. You’re very special.” In his first live remarks after the siege, Trump made no apology but instead asserted that his speech to the rioters had been “totally appropriate.” Only after his impeachment did Trump issue a statement in which he affirmed that he “unequivocally [condemned] the violence.” Given Trump’s insistence on disclaiming any connection between what he said and what his supporters did, his acquittal would be tantamount to the Senate’s approval of its endangerment, by Trump and by anyone who would claim his mantle.

“The interest of the man must be connected with the constitutional rights of the place.” When Madison wrote these words, he likely didn’t have in mind anything as fundamental as the man’s interest in his own bodily integrity, or Congress’s interest in the physical security of its home. But the principle holds. The House’s second impeachment of Trump presents the Senate with the chance to defend or abdicate those interests, through a constitutional proceeding entrusted to it alone and which the Framers believed crucial for, in Madison’s phrasing, “defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”

The correct course of action is clear. Because no political body can be expected to do for the country what it won’t even do for itself.