We Know What Trump Did. But We Still Don't Know What He Thought He Was Doing.
The good news is that the litigation will continue, and judges and jurors have different rules
Majority Leader Mitch McConnell voted to acquit and then delivered a blistering speech against the former president on the Senate floor that explicitly called out Trump’s lies about the 2020 election. Photo credit: john smith williams/Shutterstock.com
The former president did not testify in his impeachment trial, and he has not (yet) been deposed.
So we do not know what was in Donald John Trump’s mind as, over the course of ten weeks, he whipped up the whirlwind of insurrection that ended, on January 6, in a deadly attack on Congress.
Of course, it wasn’t just ten weeks of incitement. Depending on when you start counting, it could be five years: a half-decade of lies that encompassed his national campaign and his presidency. Or we could say nine years, a torrent of lies that span the life of his Twitter account: he promoted birtherism, Clinton conspiracism, and every other political falsehood that gave credence to #StopTheSteal. Or it could be 45 years: lies, lawsuits, intimidation, and the other shenanigans that embrace Trump’s career as a celebrity businessman.
But let’s return to that ten-week window laid out in detail by the House impeachment managers. What was on Donald Trump’s mind?
Knowing what a person is thinking as they commit a crime is known in the law as mens rea. It translated literally from the Latin as “guilty mind,” and figuratively as: ok, we know what he did and what the outcome of those actions was, but was a murderous insurrection what he intended?
In other words, when Trump invented, cultivated, and perpetuated the notion that the presidency had been stolen from him when he called out to thousands of MAGA supporters to bring this fake grievance to Washington—did he know that the mob would storm and sack Congress, beat and kill Capitol police who got in their way, and come within yards of seizing (and perhaps killing) elected officials? Did he have a guilty mind—or was he just as taken by surprise as the rest of us.
I think the House impeachment managers answered that question pretty clearly last week.
As I watched Trump being acquitted with ten votes to spare on Saturday (the vote was 57-43, and conviction would have required a 2/3 vote, or 67 yeas), I was also fascinated by the other guilty minds in the room. What were the Senators who were voting not guilty thinking? These were people who have been part of the scheme for four years, who tied their careers to a river of lies and incompetence, and who relentlessly propped up the lie about the election.
Yet look at how Trump paid them back. These Senators also ran for their lives on January 6, hiding for hours as maniacs roamed the halls. They returned to desks and offices ransacked by the mob and befouled by blood and feces. They watched a 90-minute film about that afternoon, and some were seen wiping tears from their eyes. Then, 43 of them downed the Kool-Aid again and took the rat line offered to them by Trump’s defense lawyers: that the Constitution does not provide for the trial of an official who has left office; and that all of Trump’s lies and incitement to violence were free speech.
What were the 43 who voted against conviction thinking? Surely not about the Constitution, which they and Minority Leader Mitch McConnell chose not to defend in the weeks leading up to the attack, even as Trump and his allies mercilessly harassed local election officials and state legislatures to reverse his overwhelming loss, inviting death threats against other Republicans.
And surely they were not thinking about how wrong they have been when, every time Donald Trump breached another legal and political norm, they told gaggles of reporters and their own constituents that a limit to these insults to the body politic had finally been reached. We were reassured that they would never happen again. This is what three Republican Senators said a year ago after they acquitted the leader of their party:
“I believe that the president has learned from this case,” Sen. Susan Collins (R-Maine) said in defending her vote against removal. She added: “I believe that he will be much more cautious in the future.”
Sen. Joni Ernst (R-Iowa) said that the process had taught Trump that “he needs to go through the proper channels.” Sen. Lamar Alexander (R-Tenn.) said, “I would think you would think twice before you did it again.”
Alexander has retired; Collins voted guilty—and Ernst? She voted to acquit again.
How could Ernst and the other 42 overcome their knowledge that the mob had been sent, to not just disrupt their ceremonial, but Constitutional, duty to count Electoral College ballots, but to also force their submission to Donald Trump’s lie that he had won the election? How could they overlook it that this calculated attempt to bully them into submission through terror not only cost the lives and health of almost 150 Capitol police but also—absent the quick-thinking of other Capitol police and colleagues who were combat veterans—put them steps away from being casualties themselves that day?
And yet the 43 voted to acquit anyway. What was their mens rea?
But the Senate trial is over, and I will get back to my job: prognosticating and analyzing. Here are a few things I predict.
Trump is finished as a national political candidate. Whatever they are saying now, the Republican party knows that it will not survive another Trump presidency, candidacy, or even Trump remaining in political life. Mitch McConnell knows this, which is why he made the devastating speech he did, essentially laying out Trump’s guilt after he voted to acquit.
It was such a Mitchian move. I am not entirely ruling it out that McConnell was truly horrified by January 6. Still, I am extremely skeptical that he will take responsibility for his own role in propping up a sociopathic President as one of the elements that made that day possible. Former Senator Claire McCaskill (D-MO), now an MSNBC pundit, agrees: she understood the speech as a necessary move to placate deep-pocket GOP donors who got a lot out of Trump but did not bargain for a popular insurrection. “Money matters to Mitch McConnell," McCaskill emphasized: the people who write the six-figure checks “wanted him to say what he just said.”
But at The Constitutionalist, Jeffrey K. Tulis saw it slightly differently. McConnell explained his own vote as a defense of (the highly disputable) notion that a post-Presidency impeachment is unconstitutional and opens the door to hunting down any former federal officeholder for partisan reasons. But Tulis also implies that McConnell has finally acknowledged the truth he refused to vote for: that while Trump was formally acquitted, he was, in fact, guilty as charged, and history will remember it this way.
Finally, on Saturday night, I hung out in a Clubhouse conversation among young conservative political and media activists because that’s what political junkies do. They seemed to agree on one thing: that the violent extremists that gathered on January 6 are tearing the GOP apart, that it alienates many on their party, and inhibits them from attracting independents and voters in communities of color.
While none of these young people explicitly spoke against Trump, they seemed to be in consensus that the GOP must slip the halter of Trumpism and rebuild a center-right in their party. While they aren’t interested in a Romney party, they were praising Republican Susan Collins of Maine, and Democrat Joe Manchin of West Virginia, as conservative politicians who know how to thread the needle in purple states.
I’ll be following up on this in the coming weeks.
Donald Trump and his allies will be held accountable in civil, if not criminal, court. An acquittal on impeachment charges does not get Trump out of some other thorny legal problems, particularly now that he is a private citizen and the United States has a fully-functioning Department of Justice. Among the former president’s problems are:
A possible criminal prosecution in Georgia for attempting to illegally influence the 2020 election in that state. Last Wednesday, newly-elected Fulton County prosecutor Fani T. Willis sent instructions to numerous officials in Georgia instructing them to preserve the records of their interactions with Trump and his associates. According to the Washington Post, South Carolina Senator Lindsay Graham has also been wrapped into that investigation because of his call to Secretary of State Brad Raffensberger, which the latter understood as a veiled request to fiddle the vote count. Because you don’t need a weatherman to know which way Lindsey Graham is going to blow, one possibility I would keep in mind is that to save his own skin, Graham could become a cooperating witness against Trump. As Willis considers racketeering charges, other potential cooperating witnesses might include Rudy Giuliani and Sidney Powell, who was at Trump’s side when he made the Georgia call. In other weirdness, Trump supporter and attorney Lin Wood is also now facing charges in Georgia that he himself may have voted illegally there—since he owns a residence in South Carolina.
Civil litigation, a far better tool for fighting disinformation than impeachment, is a real threat for Trump. To begin the drama, Sidney Powell is being sued for $1.3 billion by Dominion Voting machines: I will be shocked if they do not go after Trump too.
Bizarrely, Powell is being defended by Lin Wood, who may have to bow out of that role should one (or both) of two things happen. Wood may also be sued by Dominion, which would compromise him. In addition, the Georgia Bar may lift Wood’s license to practice law because they think he may be mentally ill. These lawsuits implicate Donald Trump since Powell was in Trump’s employ as she was making her claims about Dominion and spreading the conspiracy theories that brought the mob to Washington; Wood was also working on Trump’s behalf. Finally, a Dominion worker driven into hiding by death threats is currently suing the Trump campaign.
What is the likelihood that Trump himself will be personally sued by those injured and disabled during the insurrection, as well as the survivors of those who were killed? I would say it is very high, and compared to impeachment or a criminal trial, the evidentiary bar is much lower than in a criminal prosecution.
Donald Trump may not run for president in 2024, as he has threatened to do. Still, as we know from Pat Buchanan’s long career of partly supporting himself through fruitless presidential campaigns, running for office is an income stream. Barring a felony conviction, Trump may run for something else since selling campaign gear and getting gullible people to give him money seems to be one of his best talents. This is purely a guess, and I have read it nowhere, but I would say that if Trump is not completely occupied with fighting off lawsuits and saving his tanking businesses, we should look for him to primary Florida governor Ron DeSantis in 2022. Formerly one of the most popular governors in the country, DeSantis has been slipping badly in the polls, due in part to his Trumpy mishandling of the pandemic in a state where elderly Americans do migrate to die—but over 18,000 of them over the age of 65, and their families, would have liked a few more years all the same.
So stick with me—I will be covering the news as it develops.
Claire Bond Potter is Professor of Historical Studies at The New School for Social Research, and co-Executive Editor of Public Seminar. Her most recent book is Political Junkies: From Talk Radio to Twitter, How Alternative Media Hooked Us on Politics and Broke Our Democracy (Basic Books, 2020).
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What I’m reading:
John Stoehr on Mitch McConnell’s “big lie.” (The Editorial Board, February 14, 2021)
Historian Jill Lepore on “The Invention—and Reinvention—of Impeachment,” (The New Yorker, October 21, 2019)
Prophecy has become a big deal in the United States, particularly among evangelical leaders—and it long predates Covid-19. (Ruth Franklin, The New York Times, February 11, 2021)
The Nation welcomes Sasha Abramsky as a columnist: here is the debut of “The Left Coast,” where he will report from the American West. (February 12, 2020)