There are few moments in contemporary politics when the arguments made on the floor of Congress matter very much. The coming Senate impeachment trial may well be one of them.
Cynics who scoff at the idea of finding seventeen Republicans to vote for conviction are overconfident in their assessment. All signs suggest that key senators’ minds are not made up. The House impeachment managers seem to have that rare opportunity in politics—a chance to persuade other politicians about what’s best to do.
The politics of the moment do not rule out conviction. The Republican leader, Mitch McConnell, has already signaled his openness to voting to convict, and it’s not hard to see why. His moderate wing of the party has every reason to seize the opportunity to remove the infuriatingly unpredictable Donald Trump from the next two election cycles.
The aspiring leaders of the party’s populist wing might also quietly welcome Trump’s fall if they felt it might accelerate their rise. They are unlikely to vote for conviction, but they might not work hard behind the scenes to prevent it.
It would only take statements from two or three Republican senators to build momentum in the moderate wing for conviction. These swing senators are the House impeachment managers’ most important audience. To reach them, the managers will likely adopt a different speaking strategy from the one we are accustomed to hearing on the Hill.
Talk on the floor of Congress is usually for the cameras, for press releases or TV news coverage or later campaign ads. That talk naturally caters to the speaker’s own base. We heard examples of this from Democrats in the House before the vote to impeach.
The impeachment managers must be sharply aware of the danger of falling into that habit during the Senate trial. If they were to fill their speeches with every sin their followers believe Donald Trump has committed since 2015, it would be difficult not to allow their contempt for Trump to convey disdain for the tens of millions of citizens who voted for him. That sort of speech would not bring along Republicans who generally supported the president’s policies. In fact, it would risk presenting the argument for conviction in a manner that would make it uncomfortable, or impossible, for key Republican senators to sign on.
Some journalists and commentators are expecting to hear an extended debate about the technicalities and precedents relevant to a legal definition of “incitement.” But the impeachment managers must know how foolish it would be to allow themselves to be lured into that discussion. They will anticipate that that trapdoor would open beneath them and leave them flailing in a debate on free speech, where they would find themselves, again, too far from the beliefs of the key Republican senators they are aiming at. They are therefore likely to wave away the lawyers’ quibbling on the definition of incitement as narrow legalism and insist on the plain constitutional character of the article of impeachment.
The managers can remind the audience that the Senate’s trial is not a legal proceeding in the usual sense. The senators are not jurors; the Senate proceeding cannot result in civil or criminal punishment; it cannot be undone by a pardon and cannot be reviewed by the courts. This trial is a constitutional judgment about whether the former president violated his oath of office by failing to protect and defend the carrying out of procedures that were required by the Constitution. The managers can emphasize, as others have argued, that the former president’s dereliction of duty on the afternoon of January 6 offers a clear case of failing to defend Congress as it was carrying out its constitutional responsibilities.
The House managers can remind the Republican senators that they themselves were attacked by the mob that invaded the Capitol. The former president singled out as targets exactly those senators whose judgments matter most now, repeatedly calling them “the weak Republicans” and “pathetic Republicans” as he directed the crowd toward the Capitol, and he then failed to act to defend them when he saw the crowd had become a violent mob. Senators felt the attack viscerally, as even Senator Lindsey Graham’s remarks that evening demonstrated. Many senators may also have felt personal responsibility for members of their staff who had to take cover or run for their lives.
Rather than spending time rehashing the many outrages of Trump’s years in office, as they might do when speaking to their own constituents or for the media, the House impeachment managers can bring the senators back to those moments of intensity in the Capitol and to their constitutional significance. They can attach the memory of fear to something higher, to a sense of indignation that all senators ought to feel at the way the chief executive treated what is supposed to be an equal branch of government. As I have written elsewhere, the former president offered one of the clearest examples of a violation of the separation of powers that can be imagined. This is the argument that Senator McConnell signaled his sympathy with on Tuesday when he remarked that the rioters provoked by the former president and other leaders tried “to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like.”
The House impeachment managers can work to show how the sadness and the anger senators felt that day was justified by the offense not merely against them as individuals, not merely against a fair election outcome, but specifically against the constitutional role they were dutifully performing.
Commentators and journalists will try hard to distract the impeachment managers from their real audience. They will raise questions from all parts of the political spectrum and from legal experts on this or that matter, and they will try to lure the managers back into speaking to their own base, the audience they are most comfortable with, instead of focusing on the constituents that the Republican senators must answer to. To have a chance at conviction, the managers will have to disregard this noise—at least for the duration of the trial—and focus on the audience they want to persuade. They will have to put themselves in the “weak” Republicans’ shoes and imagine what would allow them to vote for conviction. Persuasion requires a sensitive ear for what will seem plausible to the other side. There is still a Republican constituency for constitutionalism out there.
It’s a dodge to say that key Republicans will never come around. The politics open the door to persuading them. The House impeachment managers can resist the cynics and the distractors. We should all help them keep their eye on their real audience, which for once is their fellow lawmakers.