by As is very rare, I find myself disagreeing with Josh Marshall who asked “What Were the Democratic Senators Thinking?” when they agreed to accept Representative Jaime Herrera-Butler’s assertions (that Trump sided with the insurgents over minority leader McCarthy) in writing when Trump’s lawyers stipulated that they could be assumed to be accurate. First I will play amateur lawyer (and link to an actual lawyer who contested Marshall and was posted by Marshall) — the managers said they asked to call witnesses specifically to present that (hearsay) testimony. After listeining to their closing arguments it is clear that they were being frank — the testimony was critical to their case against Trump. Assuming it is accurate (as agreed) it proves that
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As is very rare, I find myself disagreeing with Josh Marshall who asked “What Were the Democratic Senators Thinking?” when they agreed to accept Representative Jaime Herrera-Butler’s assertions (that Trump sided with the insurgents over minority leader McCarthy) in writing when Trump’s lawyers stipulated that they could be assumed to be accurate.
First I will play amateur lawyer (and link to an actual lawyer who contested Marshall and was posted by Marshall) — the managers said they asked to call witnesses specifically to present that (hearsay) testimony. After listeining to their closing arguments it is clear that they were being frank — the testimony was critical to their case against Trump. Assuming it is accurate (as agreed) it proves that Trump was not horrified to find his supporters were smashing the windows of McCarthy’s office, that even if their actual fighting when he called on them to “fight like hell” was due to a misunderstanding (as absurdly argued by his lawyers) he chose not to explain to them that their violent actions were unacceptable (even though he later falsely asserted that the violence hadn’t occurred). As explained by the managers, his reaction is proof of his support for violence and that his (already obvious) incitement to violence was incitement.
As an added bonus, Trump’s lawyer committed gross misconduct when he said that, even though they stipulated that the claims are accurate, the claims weren’t accurate. I’m not a lawyer, but I am sure that to “stipulate” is to commit to making no such claim — that stipulating then breaking the promise by contesting is misconduct at least approach contempt of, in this case, the Senate. The utter humiliation of Republican Senators who are lawyers (who will ignore the evidence and the constitution) is heightened by forcing them to pretend that it is OK to stipulate then unstipulate.
Marshall (and many many others) describes the events as Democrats backing down. Notably they got exactly everything they said they wanted (and also clearly what they needed to make their closing arguments). The discussion focuses on TV scheduling (and yes TV is powerful) and on doing whatever (45) Republicans don’t want to show who’s boss. This is all important (most Americans are, like me, not lawyers and care about show and not rules of evidence). I think Marshall is right when he wrote “This decision signaled a failure to grasp the damage sustained by deeply demoralizing your supporters. It opens those who defend them to ridicule and contempt.” It is possible to argue that the Democrats got everything they wanted (for one thing it just requires assuming they meant what they said and noting what new evidence they wanted in the record and that they got it and a promise that it not be contested). But it was bad politics as theater and, with the outcome not in doubt, the whole trial is theater.
Here I think it is possible and useful to argue that the Democrats won by getting exactly what they wanted (exactly what they said in advance that they wanted). I think that is the proper response to ridicule. Or to put it another way, if the problem is that it looks like a defeat and surrender (even though it isn’t) maybe Democrats not in the Senate should try to explain that the Democrats won the confrontation (as they did) rather than lament the fact that it appears that they caved (which they didn’t).
Marshall is also right that the trial can’t be allowed to delay confronting problems which can be solved (unlike Republican’s shameless hypocrisy). Testimony would not have been collected quickly (especially because Republicans are eager to obstruct everything). The trial would have to wait for depositions and resume when the Senate should be fighting Covid. Actually addressing people’s problems is the way to (maybe possibly) survive mid term elections. Also it actually addresses people’s problems which is the point of politics.
I think part of why I praise what Democrats did today in the Senate is that I have heard the summary arguments. I know why it was necessary to get Herrera-Butler’s assertion in the record, and I know how devastatingly convincing the summary arguments are. Also