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On the 9th of February, the second impeachment trial of Donald Trump will begin: the outcome is all but assured. Although Trump himself will likely be exonerated, neither political party will be easily freed from the burden brought upon them by his presidency. The trial will be a test and an agon – the Greek word for “contest” at the root of “agony.”
Every trial, including an impeachment trial, is a test of whether the legal system can achieve justice. A trial can thus be said to have at least two defendants: the accused and, implicitly, the court itself and the rule of law it purports to uphold. In trials where the law is seen to have been applied fairly, and where the laws upheld by the court are also viewed as just, this spectral second defendant goes unnoticed. In courts that fail at either of these things, the second defendant haunts the proceedings like Banquo’s ghost in Macbeth. When Aleksei Navalny was immediately arrested upon his return to Russia, sentenced to jail in a police station that was hastily turned into a court, and sent to prison for over three years, it was this second defendant – the Russian system of justice – that, in reality, stood accused.
Given that impeachment trials are inherently political affairs – the prosecution is “managed” by members of the opposing political party – the second defendant is always lurking in the shadows of the proceedings. Moreover, revelations about the betrayal of the public trust may well expose the very power structures that inform public institutions, including the courts.
Impeachment might be said to entail an obvious yet insidious question: if the defendant is guilty of a high crime, how did that person rise to such a position of trust in the first place? Any attempt to answer this question is unlikely to be undertaken in an impeachment trial. Such a question would turn attention away from specific individuals and towards group guilt. The second defendant morphs into a hydra-like creature that embodies entire political parties, media organizations and platforms, and government agencies that have aided and abetted the first defendant in undermining the rule of law.
Because impeachment trials purport to be in the public interest, featuring a prominent figure, the proceedings up to the charge of being a “show trial.” They are widely publicized, and this publicity adds to a theatrical quality that nevertheless invites these other defendants to take the stage. Sometimes they are better than theater. The impeachment trial of Warren Hastings, among the most famous court proceedings of eighteenth-century England, was described by historian Thomas Macaulay as “a scene surpassing all the imitations of the stage.”
In the age of mass media, all politics is now performance, but an impeachment trial is choreographed. When Bill Clinton was tried by the Senate in 1999, Chief Justice William Rehnquist, inspired by a production of Gilbert and Sullivan’s Iolanthe, presided cloaked in a black gown with four gold stripes sown on each sleeve of his robe. Like grand dramatic productions, impeachments also have predictable plot lines: in Clinton’s case, it was a powerful man brought low by lust; in Trump’s, by his massive ego and love for power.
Yet much as experienced actors recognize the perils of breaking the “fourth wall,” the participants in an impeachment trial understand the dangers of acknowledging that they are political performers. Their production must be as concerned with representation as with justice. Ironically, part of the drama of an impeachment trial comes from the need to convince the public that they are in fact witnessing a consequential trial and not political theater – or at least, not the kind of political theater to which the public has grown all too accustomed.
In Trump’s first impeachment trial, over which Senate Republicans exerted significant influence as the party in power, the second defendant was the GOP itself. Like the Cheshire Cat in Alice in Wonderland, the party was only occasionally visible yet omnipresent. Mitch McConnell, then the Senate Majority Leader but also a juror, publicly acknowledged that he was coordinating his management of the trial with Trump’s defense team. Such a candid admission of partiality by a sworn juror was the political equivalent of an actor acknowledging a member of the audience during a performance, a performance that has itself become a part of the theatrical tradition.
And yet most Republicans simultaneously kept up the pretense that they were participating in a conventional legal proceeding intent on discovering the truth. By not allowing witnesses, Republicans also scripted the outcome, ensuring that the facts of the trial did not so obviously contradict its pre-ordained conclusion: Trump was innocent because there was a lack of direct evidence that he had directly attempted to strong-arm the Ukrainian government into opening a criminal investigation into Joe Biden’s son.
Already Republicans have raised objections to Trump’s second impeachment trial by claiming that the performance is itself without merit: the proceedings are unconstitutional now that Trump has left office. In this way, the former president’s defenders have placed the second defendant front and center, perhaps in the hope that the first defendant will be forgotten.
If, from the Republican perspective, Trump’s innocence was a foregone conclusion in his first trial, the guilt of that second defendant – the Democrats and a few Republicans who would attempt to hold him to account for his role in the insurrection on January 6 – continues to be a matter of faith, or perhaps, brand loyalty.
We might suspect that the trial will force each party into its most conceited dramatic postures as each attempts to plant their flag on the highest moral ground. Trump’s lawyers will push a narrow defense: that the former president exercised his right to free speech in the days, and hours, prior to the insurrection; and that the trial is unconstitutional. And they will more broadly accuse Democrats of being divisive and raising the political temperature – a defense that is implicitly also a threat of future violence from the most excitable members of their base.
Democrats are likely to counter that the issue of free speech is a red herring, because the question is not whether what Trump said at the rally was protected by the First Amendment but whether his provocative lies about election fraud and invitation to his supporters to interrupt the counting of Electoral College votes contravened his oath to defend the Constitution. They will argue that he compounded this betrayal by his inaction in the hours that rioters occupied the Capitol and by his subsequent embrace of them: “we love you,” he reassured them in a video broadcast as the insurrectionists were being cleared from the Halls of Congress.
In other words, the very concept of justice is at stake in this impeachment trial. For this reason, each political party will attempt to turn the other into a second defendant.
What will be missing is what a trial is supposed to produce, and that theater often leaves usefully ambiguous: a consensus about the truth. Democrats must come to terms with the reality that a large number of Americans believe that Congress is broken and unable to deliver justice. They not only believe that Trump was the victim of election fraud but that the rioters who stormed the Capitol were acting patriotically. Republicans, in turn, must reckon with the fact that an even larger number of Americans think that Trump is guilty of grave offences against our democracy, that those who stormed the Capitol were insurrectionists, if not outright terrorists, and that the Republican Party abetted these high crimes and misdemeanors.
As justice, Trump’s trial is likely to be a flop, but that does not mean that it won’t be good theater. And theater, like all art, can nudge society in new directions. We might recall that Warren Hastings was overwhelmingly acquitted after his seven-year impeachment trial, and yet the expansive case that Edmund Burke made against the head of the East India Company as the de-facto ruler and despot of the entire Indian sub-continent radically changed the course of British colonialism. Regardless of the outcome, Trump’s trial is part of a larger cultural and political reckoning that Americans, and their elected representatives, must face. Whether a space in the national psyche can open up any time soon for both self-examination and for forbearance remains to be seen.
Peter Nohrnberg is a poet and a scholar of literary modernism. His poem “Pantoum After a School Shooting” won second place in the 2020 Morton Marr Poetry Prize competition and appears in the most recent issue of Southwest Review.