- - Wednesday, February 3, 2021

On Friday, we commemorate the first anniversary of President Trump’s acquittal in his first impeachment trial, even as we look forward to the second trial.

It is worth remembering that the votes for acquittal in the first trial were almost entirely along party lines, with one notable exception. Sen. Willard Mitt Romney, Utah Republican — at peak Willardness — voted to convict Mr. Trump of just one of the two counts (abuse of power) in 2020.

No telling who might vote to do what this time, where there is only one count: incitement to insurrection.

Let’s for a moment pretend that this trial is not happening in the circus that is Washington. Let’s assume that facts in evidence will actually matter to a few senators in a trial in which the judge — Sen. Patrick Leahy, Vermont Democrat — is also a juror and perhaps a witness, and in which the grand jury — the House of Representatives — passed down the indictment just a handful of days after the alleged crime and without a single hearing.

I have no idea how one judges “incitement” in this instance. The speech Mr. Trump gave on the Ellipse on Jan. 6 was no more or less incendiary than many political speeches we have all heard by members of both parties, including President Biden, over the course of our lives. If anything, it was anodyne compared to many of Mr. Trump’s remarks during numerous rallies.



How about the “insurrection” part? About 175 people have been arrested and charged with crimes associated with what happened at the Capitol Jan. 6. To the best of my knowledge, no one has been charged with treason, conspiracy to overthrow the U.S. government, or anything in that remote vicinity.

The charges filed to date include trespassing, carrying a gun into the Capitol, and obstructing Congress. I am aware of no murder or attempted murder charges having been filed, although it seems reasonable to assume that those charges eventually will be filed in connection with the death of Capitol Police Officer Brian Sicknick.

But no one has been charged with — let alone found guilty of — treason, insurrection, attempts to overthrow the government, etc. 

It is not at all clear how one can incite a criminal activity that has not been alleged, let alone proved.

What happened was bad, and some want vengeance. Some Republicans would like to wash Mr. Trump out of their hair. Some in the media are settling perceived scores.

Mr. Trump would have been much better off conceding the election and committing to working to uncover and remedy any voting fraud that may have occurred. Instead, he gave his critics the moment they had been looking for.

That said, House Speaker Nancy Pelosi and her team have no moral, intellectual or other authority to bring this charge, having themselves traduced traditional norms by refusing to accept the results of the 2016 presidential election. They have been on a personal jihad against Mr. Trump for awhile, and this is a natural extension of that.  

Everyone needs to take a deep breath.

This will be the second impeachment trial of a president in 400 days, after just two in the preceding 230 years. There are those — including the former president himself — who have noted with dismay or approval that Mr. Trump has routinely ignored and transgressed customs, norms and traditions.

But there is no more consequential trampling of norms than normalizing impeachment. By choosing to pursue impeachment as a political strategy to weaken her opponent, Mrs. Pelosi is leading us all down a very dark path.

This instance is especially fraught. If the Senate concludes that it can hold trials of former officials, what will keep senators from making it a routine part of post-election transfers of power?

Impeachment has all the indicia of a legal proceeding — judge, jury, witnesses, counsels for prosecution and defense, reliance on and creation of precedent. At its core, it’s a legal proceeding. Last year, there was no meaningful evidence that any law had been broken.

This time around, there still isn’t any factual basis in evidence for the charge. The jurors need to think about what precedents they are setting. Trials before facts, after electoral defeats, simply because you don’t like someone, or to criminalize political disagreements, all set bad precedents.

Hard cases make bad laws. This is a particularly hard case.

• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.

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