Trump’s Answer to the Senate and the Constitutional Stakes in the Pending Trial

By Bob Bauer
Tuesday, February 9, 2021, 11:22 AM

According to press reports, former President Donald Trump had to change his impeachment legal team shortly before the deadline for filing his answer to the House’s charge that he sought to “subvert and obstruct the certification” of the presidential election results, culminating in his incitement of the Jan 6. attack on the Capitol. This history is probably charitably taken into account in judging what the hastily recruited team of lawyers produced.

But their 14-page answer, even if turned out in a hurry, is not inconsistent with what might be expected from Trump. And the pre-trial brief filed only a few days later confirms the line and tone of argument that he intends to present to the Senate. This legal defense is riddled with problems, but it at least succeeds in underscoring a critical choice now before the Senate: Will the Senate judge the House charge in the narrowest sense—what did the president do and when did he do it?—or will it address those questions with attention to the larger context of the kind of presidency, the demagogic presidency, that Trump sought to establish? The answer’s factual admissions, assertions and denials are shaped by Trump’s baleful conception of the office, and this is the issue of central importance in assessing the constitutional stakes of this impeachment trial.

As Benjamin Wittes and Susan Hennessey have written, Donald Trump had a “wholly new vision of the office and his powers,” one that “elevates the expressive and personal dimensions of the office over everything else.” In a presidency like Trump’s, “the institutional office and the personality of its occupant are almost entirely merged—merged in their interests, in their impulses, in their finances, and in their public character.” The presidency of Trump’s conception “elevates the expressive and personal dimensions of the office over everything else.”

Others have defined Trump’s presidency, as I have, as the particular kind about which the Founders were deeply concerned: the demagogue. In a splendid book on the demagogue in American politics, Eric Posner pinpoints its “core meaning.” The president who, like Trump, is a demagogue, holds charismatic sway over his or her followers, but is amoral and “obtains the support of the people through dishonesty, emotional manipulation, and the exploitation of social division…” Since demagogues’ “ultimate goal is personal power and glory,” they seek to destroy existing governing institutions, which they portray as the self-protective gear of elites, and they will do what they must to entrench power by “undermining competitive power centers and interfering with elections.”

Wittes and Hennessey feared that if Trump were reelected, this vision of the presidency would receive public sanction: It would have taken hold, offering future aspirants to the office a model for self-interested, demagogic rule. Jack Goldsmith concurred that a reelected Trump would mean that “his norm breaking will be seen to serve the presidency more than it does today. If that happens, the office will be changed, and not for the better.”

However, the hope that the election would arrest the advance of the demagogic presidency has been tempered, if not dashed. By assaulting the legitimacy of the election, beginning the day after the election at 2:30 a.m., Trump has managed to persuade a large segment of the electorate that the election decided nothing at all. It was fraudulent, denying him the “landslide” he claims that he won. In fact, according to Trump, it was precisely because he had established his unique form of presidency, unlike any that had come before, that the election was “stolen” from him. The same elites aligned against everything he stood for, every innovation he offered the American public, had joined forces to deny him the second term he had clearly won.

So Trump is out of the White House, but his attempt to vindicate his vision of the presidency has not ended. He continues to put it up as the alternative to the standard conception—the presidency that has operated within institutional norms for which he has exhibited disdain. It now falls to the impeachment process to confront and repudiate the demagogic vision of the presidency that Trump is endeavoring to keep alive.

Trump’s first response to the Senate, in the form of the answer filed last week, put the question squarely before the Senate. First to be noted are the outright falsehoods. It is false to state, as his lawyers do, that Trump had only characterized the 2020 presidential election results as “suspect.” This suggests that he raised only a question about it, as in the dictionary definition of “suspect.”

Of course, Trump did more than that: He stated, unequivocally, that it was stolen. He did not suggest that any error in the returns should be viewed as unreliable and so to be viewed suspiciously in that sense. His claim was that outright, deliberate fraud robbed him of the election. He did so numerous times in tweets, retweets and posted videos. He spoke of “corrupt forces who are registering dead voters and stuffing ballot boxes” and of voting machines that “switched” thousands of votes from Trump to Biden. The election was, he declared on Fox on Nov. 29, a “total fraud … an embarrassment to the country.” Even the evening of Jan. 6, after the attack on the Capitol, he posted a video affirming to the rioters that “we had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side.”

It is also far from the case that, as the answer claims, he was only drawing attention to “election security in general,” endangered by the actions of judges and politicians who made changes to the rules that state legislatures had not approved. His lawyers repeat this same claim in their pre-trial brief, elaborating only that, on Jan. 6, Trump did no more than “speak out on investigations of voting irregularity and fairness” and “the authority of officials certifying votes.” Of course, Trump was expressing more than these vaguely worded, general concerns. His main point, which he stated directly, clear and repetitively, was that the November election results had been falsified by intentional fraud, that it was the product of a “criminal enterprise.” These claims went far beyond any disputes over rules in the various states, such as those over the extension of the deadline for the receipt of ballots. And all of these claims were met with rejection in court after court.

The answer lays out all these lies, in defense of the president’s lies, in the service of an overarching argument that a president can say whatever he or she chooses. The lie is crucial to the strategies of the demagogue. Here Trump asserts the view that he can express at any time, for any reason, an “opinion” that is just his own. If, as the answer states, he can insist to the Georgia secretary of state that the “many” ballots cast in that state were forged, he can recast that false statement of the facts as just his “opinion,” fully protected by the First Amendment. A lie in self-interest is a staple of demagogic politics. And Trump is well aware that his supporters are prepared to accept his opinion as fact, because it is his opinion. The demagogue’s personal opinion becomes the measure of truth.

And, of course, the demagogic line of argument is replete with vicious attacks on adversaries. Trump is not the first president (or former president) to accuse his critics of harboring partisan motives for seeking his downfall through impeachment. Trump, however, has apparently decided that, because the House impeached him after it became clear that he would be leaving office, he cannot charge Democrats with the partisan goal of ending his presidency. So now his lawyers assert the House acted out of “political hatred” (framed in the pre-trial brief as “fevered hatred”)— allegations that could well have been borrowed from a Trump tweet.

And to make the case for the “hatred,” Trump’s lawyers offer up another lie. They claim that the House delayed the transmission of the article of impeachment to the Senate in order to have the president pro tempore, Patrick Leahy, a “partisan Senator,” preside in place of the chief justice. There is no basis whatsoever for this claim, as Trump and his lawyers surely know. But this lie serves the purpose of vilifying as corrupt the Senate proceeding. It is yet another Trump charge that institutions are conspiring to take illicit action to bring down Trump and deny the will of “the people.”

Trump’s answer effectively invites the Senate to a reckoning with all of the characteristics of this leadership model: the contempt for institutions, the liberal and unrelenting use of lies, the virulent attacks on critics, the systematic sowing division. There is more, of course, along these lines in Trump’s Jan. 6 speech. In addition to the attack on judges and elected officials, he riled the crowd with his false claims that former Vice President Pence could reject the certifications from battleground states and return them so that Trump could be elected. He attacked the United States Supreme Court for having failed to come to his defense only because it feared criticism for being his “puppets.” He did what demagogues do: inflamed his supporters by attacking institutions and demanding outcomes consonant with his “opinion” and his interests.

The Senate’s exploration of answers to key questions—the “what did Trump do and when did he do it”—remains, of course, central to its task. What he said, his intention in calling for a march of the Capitol, the rally-goers’ reasonable understanding of what he expected from them: all these questions require exploration in the Senate’s judging of Trump’s “singular responsibility” for the Jan. 6 violence.

But in the background, and raising the constitutional stakes, is the kind of presidency in which these actions and events could be possible, even expected. The demagogic presidency and its threat to the constitutional order are also on trial, as Trump’s answer to the Senate also makes clear. Trump’s defense will draw on, and challenge the Senate with, the same demagogic conception and strategies out of which this presidency was fashioned. The overriding question in the pending trial is whether, the election having not settled the question, the Senate trial will be the occasion for a seminal judgment on Trump’s conception of the office.

Even if the Senate does rise to this challenge, it may be too much to expect that, as Posner expressed the hope before the election, “politicians who eye the presidency in the future will be deterred from using Trump’s ascendance as a model.” Yet its failure to do so will be at least a blow to deterrence—or worse.