As some of my colleagues here know, I was a bit frustrated throughout the second impeachment that there wasn’t more focus on Trump’s dereliction of duty on January 6. It seemed clear to me at the time that the dereliction charge would have been more intuitive than the incitement to violence charge, because everyone knew at the time that, in the very least, Trump failed to protect the Capitol when it mattered. It seemed to me that setting the bar low like this would have made conviction more likely. Jeffrey Tulis and Bill Kristol wrote about this in the lead-up to the trial, and Michael McConnell makes a related argument for the NYT here.
In hindsight, I don’t really think it would have made any difference with respect to the final votes, because I think the GOP would have still have argued that the impeachment process lacked merit (because Trump had left office: I disagree, but that hardly matters). And I also think that the focus on incitement to violence had some real advantages – namely, I think it was more truthful. If the impeachment managers had focused on the simple matter of dereliction, Trump’s complicity in planning “Stop the Steal” and in stoking and fueling the mob’s anger would have remained under the radar. Instead, they made an extremely compelling case against the president, and began the process of figuring out exactly what happened on January 6.
But I still that Trump’s dereliction of duty on January 6 was a really big deal, and my ongoing sense is that a more widespread and general emphasis on his failure to act – both in private conversations about Trump and in the media – could help dislodge Trumpism in the months ahead. I wrote up an argument along these lines for the Niskanen Center:
Dereliction poses conceptual difficulties in any legal context, since it is difficult to prove a negative. But from a basic, common-sense perspective, the matter of Trump’s dereliction could not be plainer. As Representative Castro explained that Friday, Donald Trump was obviously aware of what was going on at the Capitol on January 6 because “the whole world knew it. All of us knew it. This is the most damning piece of evidence against Trump, because it is something that we all already know.”
One worry I have with the piece is that it reads as though I’m trying to sweep the truth of incitement under the rug. I’m not arguing for that. I just think that dislodging Trumpism is going to be a long and involved process. It’s going to take time – years – to get the full truth out. In the meantime, I think these small, careful steps are important.