Trump's second impeachment trial an assault on the presidency - opinion

Little is known of the riot even today.

US HOUSE LEAD impeachment manager Rep. Jamie Raskin (D-MD) speaks during the impeachment trial of former US president Donald Trump last week. (photo credit: US SENATE TV/HANDOUT VIA REUTERS)
US HOUSE LEAD impeachment manager Rep. Jamie Raskin (D-MD) speaks during the impeachment trial of former US president Donald Trump last week.
 The second impeachment of Donald Trump came to an end with the entirely foreseeable acquittal. It is important to review what actually happened and what it augers for the future. 
First, some background: Within 19 minutes of Trump’s inauguration on January 20, 2017, the New York Times published an article entitled, “The campaign to impeach President Trump has begun.” There followed a full two years during which Trump was accused of collaborating with Russia. When multiple investigations failed to produce any supporting evidence, the Democrats impeached the President for a phone call between Trump and the Ukrainian president described by both as entirely appropriate. He was acquitted in early 2019. Months later Speaker of the House Nancy Pelosi refused to rule out the use of another impeachment as a means to prevent the president from filling a Supreme Court vacancy. 
Recall the promise made by Lavrentiy Beria, Stalin’s ruthless secret police chief: “Show me the man and I’ll show you the crime.” 
Fast forward to January 6. Following the most contentious presidential election in memory, Trump spoke to a massive rally near the White House. He urged the attendees to “fight” (a word used by politicians of all stripes for generations). He then said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” 
Some 40 minutes after the Capitol was breached, Trump tweeted, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” 30 minutes later he tweeted, “I am asking for everyone at the US Capitol to remain peaceful. No violence!” 
Little is known of the riot even today. Democrats allege that Trump incited the violence in his January 6 speech, and that the attack by armed insurrectionists caused five deaths. It is certain that the violence was planned days in advance, and began before the president spoke. Only a small fraction of the people attending Trump’s rally participated. There is scant proof that anyone was “armed.” Of the five who tragically died, one was trampled, one died of a heart attack and another of a stroke (neither of whom was in the building). One person was killed by a weapon – an unarmed demonstrator who was shot by an unidentified policeman. One police officer died. The cause of death has not been revealed, and no autopsy report has been released. The riot was over in a matter of hours. 
THE DEMOCRATS rushed toward impeachment immediately. Without calling witnesses or investigating exactly what had happened, the House of Representatives voted to impeach Trump a few days before he was to leave office .
Make no mistake. Though the recently concluded Senate proceedings were called a “trial,” they bore no relationship to a fair, objective search for truth and justice. Nor were they constitutional. 
The purpose of impeachment is to protect the country from serious crimes by public officials. “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Constitution Article II, Section 4) The Senate has no authority to try or punish private citizens. That power is reserved solely to the courts. Trump had already left office when the trial began, and was therefore not subject to Senate jurisdiction. 
Also, under Article I, Section 3, “The Chief Justice shall preside” over a Presidential impeachment trial. The presiding official here was a senator who had already opined that Trump should be convicted, and would later vote as a “juror.” 
Trump’s lawyers argued inter alia that their client was being prosecuted for speech protected by the First Amendment which guarantees, “Congress shall make no law… abridging the freedom of speech.” The Democrats asserted without foundation, “The First Amendment does not apply at all to an impeachment proceeding.” 
Much of the “evidence” presented by the prosecution would never have been admitted in a court. It was based on anonymous sources, media reports and selectively edited videos. Noted constitutional law professor Jonathan Turley observed, “[The case] was more emotive than probative. It is like showing the remnants of a fire. That does not materially show that the accused is guilty of arson.” 
The prosecution also relied on Trump’s statements from several months ago. Aside from the fact that these had nothing to do with the single charge – that his speech on January 6 incited violence – they also failed the established test for speech that may be limited: The government may legally prohibit speech if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (Brandenburg v. Ohio) 
The outcome of the trial was a foregone conclusion. 45 Senators had already voted that the Senate lacked jurisdiction. 12 of those had to change their minds on the jurisdictional question – a virtual impossibility – for Trump to be convicted. 
WHY DID the Democrats forge ahead with a trial they were certain to lose? There were several reasons: 
They are afraid that Trump may run again in 2024. They hoped to prevent him from recapturing the magic that had catapulted him to victory. Just as importantly, they wanted to sear into the national memory pictures of the Capitol under siege, and to identify that violence with Republican voters so that they could be dismissed as anti-American. As a side benefit, newly elected President Biden could issue a series of radical executive orders under the radar; orders that might otherwise have engendered opposition from the general public. 
It remains to be seen whether the Democrats succeeded in their effort to remove Trump and his supporters from the political landscape. What is clear, however, is that they have done grievous harm to the Constitution. 
They placed a private citizen on trial for exercising constitutionally protected free speech. They activated an extraordinary measure that had been used only twice in the country’s first 230 years, employing it as a political weapon twice in two years. 
We now face the possibility that impeachment will be used whenever a president displeases a majority of Representatives. Thus, what the Democrats intended as an attack on a single man and his supporters whom they despised became an assault on the presidency itself, fundamentally changing its relationship to Congress and perhaps weakening the executive branch of government for all time. 
The author is a retired American diplomat and former law professor. He lives in Zichron Yaakov.