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.
In the course of the trial, Plaskett and Dean documented Trumps’ months long campaign repeating the lie of the stolen election and the need to come to Washington on January 6th. Trumps’ lawyers offered no rebuttal to Raskin’s rejection of the “January exception” to Presidential misconduct in the last weeks in power, nor did they refute the factual record about Trump’s campaign of lies and its consequences. They did not refute the House Managers’ accounts of Trump’s tactical use and approval of political violence. The Senators themselves knew that Trump refused to order his mob to stop when the entire Congress, its staff, and others working in the Capitol were in imminent physical danger. They also knew that when House Manager and Congressman Joaquin Castro said Trump had “left everyone in this Capitol for dead,” he, Castro, was telling them a truth they knew as well as anyone.
Yet after all that, McConnell voted to acquit Trump, hoping that he could assuage the enraged Trump base. Yet McConnell, firmly planted in the reality of this world rather than that of Trump’s “alternate facts,” then unleashed the anger he had kept under wraps for the past four years. As McConnell’s denunciation of Trump may be lost in the mass of words about the trial, it bears quoting at length. Bear in mind, that these are the words spoken by McConnell, not Raskin.
Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.
The issue is not only the President’s intemperate language on January 6th. It is not just his endorsement of remarks in which an associate urged ‘trial by combat.’ It was also the entire manufactured atmosphere of looming catastrophe; the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-President.
I defended the President’s right to bring any complaints to our legal system. The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled. But that reality just opened a new chapter of even wilder and more unfounded claims. The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things. Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally.
This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.
The unconscionable behavior did not end when the violence began. Whatever our ex-President claims he thought might happen that day… whatever reaction he says he meant to produce… by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.
It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the Administration. But the President did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored. Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!
Even after it was clear to any reasonable observer that Vice President Pence was in danger… even as the mob carrying Trump banners was beating cops and breaching perimeters… the President sent a further tweet attacking his Vice President. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence. Later, even when the President did halfheartedly begin calling for peace, he did not call right away for the riot to end. He did not tell the mob to depart until even later. And even then, with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.
In recent weeks, our ex-President’s associates have tried to use the 74 million Americans who voted to re-elect him as a kind of human shield against criticism. Anyone who decries his awful behavior is accused of insulting millions of voters. That is an absurd deflection. 74 million Americans did not invade the Capitol. Several hundred rioters did. And 74 million Americans did not engineer the campaign of disinformation and rage that provoked it. One person did.
The new Majority Leader, Senator Charles Schumer, gave an address of ten minutes which, had it not been for McConnell’s statement, would be regarded as one of the most remarkable delivered in the Senate in decades. It too is a very important historical document and should be part of the record on History News Network. Yet McConnell, despite knowing that the House Managers had made their case, joined the jury nullification of the ideologists and cynics in his caucus. He resorted to the constitutional argument about not impeaching a former President, an argument that defies common sense and was rejected by most constitutional scholars and voted to acquit the man he knew was guilty.
It was here that the master tactictian McConnell made a blunder of probable long-term significance. In so doing, he passed up a fleeting and superb opportunity to convict Trump, then disqualify him from running for federal office, and thus take the offensive in a political fight to retake the GOP from Trump’s inflamed base. Instead, McConnell’s denunciation of Trump enraged that Trump base, and confounded what is left of a diminishing number of moderate Republicans. Most importantly it left Trump able to brandish his acquittal and denounce the trial as part of “the witch hunt.” Wounded but not politically dead, Trump remained a danger to the remnants of the GOP that had any claim at all to respect the rule of law.
McConnell thus sustained the Faustian bargain made since 2016. In so doing he failed to learn the meaning of the mob’s chant "hang Mike Pence," the barbaric calls to find House Speaker Nancy Pelosi, or Trump’s mocking reference to “Mitch.” Trump and his followers will turn on McConnell and the GOP establishment which voted to acquit but shared McConnell's hatred of Trump. Trump and his base will turn on Republican politicians in Georgia, Wisconsin, Michigan, Pennsylvania, and Arizona who refused to submit to Trump’s threats to overturn the results of a free and fair election. The split in the GOP was going to happen anyway, but now the cynics in touch with reality will enter that battle with the Trumpists unable to say they had used their considerable powers to inflict on him the defeat he deserved.
Such historical moments when forces are aligned as they were on February 12, 2021 do not come often. Though McConnell made all the arguments needed to convict Trump, he blinked at the crucial moment. In so doing, he seized defeat from the jaws of possible victory. Trump’s conviction would not have meant the end of Trumpism, but it would have been a severe blow against the past four years of lies and conspiracies. McConnell’s failure to act on what he knew was true and to rally what troops he had in the Senate emboldened Trumpists, and the right-wing extremist practitioners of violence with whom they are now in a relationship of mutual benefit. Before February 12, Republican mantras about law and order and respect for the Constitution had become threadbare. After the acquittal, there is no reason to believe anything McConnell and the 42 other Republican Senators for acquittal say about the rule of law now. Their pleas for bipartisanship are a bitter joke.
In Nazi Germany, the Faustian bargain launched by Franz von Papen and Otto von Hindenburg with Hitler ended in Germany’s destruction. The clever cynics who thought they could outsmart Hitler, if still alive in 1945, stumbled through the ruins of their country. In numerous works of historical scholarship, our profession has demonstrated that the German conservatives of the 1930s were nowhere near as clever as they thought they were. They too passed up moments when they could have brought the dictator down. After 1933, that tiny number of German conservatives who dared opposed Hitler paid with their lives.
Mitch McConnell and the Republican senators did not live in fear of the Gestapo. On January 6th, Trump endangered their lives but on February 12 their only fear was of possibly losing an election. Yet, on February 12, with really nothing of lasting significance to fear, McConnell refused to use the power of the Constitution and of the United States Senate to convict Trump. He and his fellow partisans combined cowardice and cynicism with what could turn out to be a major strategic blunder. The Faustian bargain had created habits of self-abasement, cynicism and raw self-interest that proved too difficult to shatter.