The Conviction of Trump Remains a Long Shot—But Here Are 10 Reasons It May Still Happen

While it remains unlikely, we may be underestimating the still admittedly long odds of Trump being convicted of incitement to insurrection. Day 1 of the trial taught us that.

{Update: After this piece was published, one of its major contentions was confirmed, as Sen. Mitch McConnell of Kentucky, the Senate Minority Leader, declared the Trump impeachment trial final vote a “vote of conscience”, a term of art in the Senate that means senators won’t be “whipped”—that is, pressured—to vote any particular way. And then McConnell went still further, saying that he doesn’t believe a vote to stop the trial precludes a vote for conviction.}

Some odd things happened on Day 1 of Donald Trump’s impeachment trial that could change the calculus slightly about whether there’s a chance of him being convicted of the Article of Impeachment’s charge of incitement to insurrection. Here’s a rundown:

Donald Trump’s lawyers are worse than anyone expected. CNN reports that Trump is “unhappy” with his lawyers’ performance, and CNN further reports that Republican senators—who matter more than Trump in this respect—are even more unhappy. The words being used to describe Trump’s defense notably feature the noun “disaster”, and more than one GOP senator told reporters that if Trump could in particular fire Bruce Castor Jr., one of his two lawyers, he would do so. Oddly, a rumored third lawyer never materialized during the Day 1 proceedings. So why does all this matter? Well, because it became clear today that Trump was unable to secure any constitutional scholars in a case whose chief defenses rest on the Constitution—and at least one of his attorneys rambled for so long that both Proof and CNN concluded that no one could determine what he was saying. The other Trump lawyer, David Schoen, threw so many possible defenses at the Senate that it was bewildering, but he substantiated none of them and at times veered into abject nonsense. Trump’s odds of winning over converts to his side among GOP senators now look to be zero, and if any GOP senator remains open-minded after Day 1, it’s to the prosecution’s (House managers’) “conviction” side they would be likely to go.

A GOP senator has already changed his mind. Sen. Bill Cassidy (R-LA) voted just a week ago that the trial was unconstitutional, as part of a “point of constitutional order” vote—a “test vote”—forced by Sen. Rand Paul (R-KY). Yet now, just days later, listening to Trump’s terrible attorneys flail in trying to discuss constitutional law, Cassidy changed his mind. If one GOP senator can do this, others can; indeed, others, seeing one of their number being so willing to so quickly change his mind, may in fact be more willing to do so than they were before. We mustn’t discount that peer pressure is real in the Senate; while one man doesn’t make a trend, one man in just one day could still be a harbinger of things to come.

One day of watching bad lawyering is not the same as watching two weeks of it. If Senator Cassidy was ready to change his mind on a key issue in the trial after just one day of watching Trump’s attorneys mangle constitutional precedent, history, and law in wildly embarrassing ways, how might GOP senators react to watching this sort of train wreck day after day after day after day for nearly two weeks? I think we may be underestimating how much patience Republican senators have for having someone they appear to have sworn to protect—Donald Trump—being so unable to give them even a single coherent reason to do so.

The “constitutionality” question is now settled. Major U.S. media, which wrongly projected today’s vote on proceeding to the trial proper would be 55-45—because they assumed, again wrongly, that no GOP senator would change their mind since last week—also now assumes, I’d suggest yet again wrongly, that any GOP senator who voted not to proceed with the trial now can’t vote to convict Trump because (the thinking would go) you can’t convict someone at a trial you’ve already deemed illegal. Except this isn’t really a trial in any proper sense, it’s a political hearing; jurors are free not only to change their minds on any issue (including constitutionality), but they also can change their mind for no reason at all, or indeed not change their mind but simply decide to admit sometime in the future what is already true now (that surely some of them know the trial is legal but voted otherwise for political reasons).

The weight of legal opinion in America, and the nonpartisan Congressional Research Office, both say the trial is constitutional. But there’s also another way to look at it: the Senate voted overwhelmingly today, and in a bipartisan fashion, that the trial could go forward and that it was, again, constitutional. So any GOP senator who wants to can now say, and correctly, that this is a settled issue in the United States Congress—not just because it was voted on this way this time, but because it was voted on the same way the two times this issue came before it in the past. While the Senate is not the Supreme Court, so the notion of “precedent” doesn’t work in the same way, in a political environment rather than legal one, as this one is, a senator can easily declare themselves still open to convict Trump after losing a vote on constitutionality. With that in mind, anyone in U.S. media who says senators are “bound” by their votes on the constitutionality question is ignoring that one senator (Cassidy) has already proven that that’s not true. We mustn’t ignore the power of today’s bipartisan vote on the issue.

The House managers gave an incredible performance. Everyone in the media, and far more importantly everyone in the Senate—including Republican senators—lauded the performance of the House managers today, a fact that wasn’t true back in January 2020 (though I’d argue those managers, led by Representative Adam Schiff of California, did a phenomenal job). This matters, because it means that every GOP senator is explicitly reserving for themselves the argument, “I was convinced by the incredible work of the House managers.” Don’t underestimate this line of political reasoning; if everyone in America believes the House managers are doing a bang-up job, it frees GOP senators to just agree and say that the managers managed to change their minds in the process.

Polling matters. We found out in January 2020 that U.S. senators are wildly responsive to polling when seated as jurors during an impeachment trial, and that U.S. voters are indeed affected in their views by the conduct of such a trial. Upshot: if these House managers continue to do well, and if opinion on the trial in the United States begins to shift, including even among some Republican voters and among some independents, the past tells us that senators will react to this shift—even those now claiming they’re immune to logic, reason, argument, or persuasion on the matter of Trump’s conviction.

The McConnell watch continues. It would be easy to note that Sen. Mitch McConnell (R-KY), the Senate’s minority leader, flip-flopped hard today. In the past he has called Trump’s actions impeachable, even though he was the one who blocked the Senate from holding a trial while Trump was still in office. He now blames that circumstance—one he himself generated—for his vote to stop the impeachment trial. It’s stunningly hypocritical, indeed even corrupt, but that’s par for the course for Mitch McConnell. But here’s the thing: it’s clear McConnell believes Trump’s conduct was impeachable; it’s clear he has no scruples; it’s clear he still has an iron grip on his caucus; it’s clear he doesn’t feel bound by anything he has said or done in the past; so why in the world would anyone assume that it’s impossible he could vote to convict after voting for the trial to cease altogether? Would it be any more hypocritical—or just downright weird—as the vote he cast today to stop a trial on grounds he himself deliberately created?

Donald Trump loves a surprise. Trump is fundamentally a self-destructive person, which is how we got to this pass in the first place. Instead of losing the November election badly and taking it gracefully, leaving himself open for another bite at the apple in 2024, he tried to burn every bridge he could with members of his own party and members of the public alike. We have no idea how he will act during this trial. Will he fire one of his attorneys, leaving his ability to mount a defense in (further) ruin? Will he suddenly demand to testify, dooming his defense to collapse beneath a mountain of his own perjury? Will he demand his defense team adopt a strategy that will only lead to angering GOP senators, losing any public support he has, and thus make his conviction significantly more probable? Anything is possible. Trump is an unstable man, and in my experience as a criminal defense attorney representing thousands of criminal defendants in several jurisdictions, unstable people often find ways to destroy their own defense. There’s no reason to think Trump any different.

Events so far have already undermined Trump’s planned defense significantly. Many will miss it, but today Trump’s two attorneys spent much of their time—and this is truly bizarre—conceding that U.S. voters clearly and unambiguously voted to remove Trump from office. That concession runs directly against Trump’s defense, inasmuch as his First Amendment defense, and his defense against incitement, presumes that he was making a good-faith argument about the 2020 general election on January 6 and before then (in other words, he didn’t at any time have the requisite “criminal intent” to manipulate his voters into any criminal conduct). But if, as his attorneys now say, the 2020 election was a clear rebuke of Trump, how can they simultaneously argue that his January 6 “incitement to insurrection” speech was given in good faith rather than as part of a disinformation campaign to produce precisely the result it did: a mob so angered by lies it was told by the president that it engaged in an armed insurrection it wouldn’t otherwise have entertained?

Indeed, Castor and Schoen are setting Trump up for a pretty obvious argument from the House managers: that Trump’s claims about the 2020 general election were so extraordinary that they impressed themselves upon the minds of average citizens who, absent Trump’s false rhetoric, wouldn’t have been exposed to such idiosyncratic and unwarranted views. We’ll see how this dynamic continues to play out during the trial.

This isn’t really a trial—it’s a series of political calculations. What Trump’s attorneys say about the Democrats is actually exponentially more true of the Republicans in the Senate: they are engaged in a wildly complex political dance. It’s possible that not one sitting GOP senator (other than perhaps Sen. Ron Johnson, who is both a radical Trumpist and also has no realistic presidential aspirations of his own) wants Trump to run for president in 2024. Many of the sitting senators will actually be harmed if Trump runs, as they’d like to run themselves; Sen. Ted Cruz (R-TX) and Sen. Josh Hawley (R-MO) come to mind. Others are in danger of losing their Senate seat to someone in the Trump family, so they have every reason to want the entire Trump clan to go away as part of the disgrace of a Senate conviction (this group would include Sen. Marco Rubio of Florida and Sen. Steve Daines of Montana, who could eventually face Ivanka Trump and Donald Trump Jr., respectively, in GOP primaries to be held in 2022 and 2026). We already know that Mitch McConnell, the leader of the GOP caucus, isn’t even on speaking terms with Trump. What all this means is that there are a lot of GOP senators who would jump at a chance to bar Trump from future office and leave his entire family in disgrace and political irrelevance if they possibly could. Who’s to say that nothing will happen over the next ten days to two weeks to make that a real option?

(Bonus) It may be that none of this matters—as what matters is a key post-trial vote. Some Democrats are making noise on the possibility of holding a vote to bar Trump from future office even if he is acquitted. So how would this be accomplished? Well, many legal scholars think that the Congress can take a vote under Section 3 of the 14th Amendment to bar Trump from future office even following an acquittal, and—the real stunner—such a vote would only require a majority vote. What this means is that even if Democratic senators are currently lukewarm on the idea, if they can get enough GOP senators to vote for conviction now—and right now at least six GOP senators seem open to that possible eventuality—the Democrats might decide to take an extraordinary “Section 3 vote” on the theory that they might be able to secure a bipartisan result that has moral weight historically and with the American people.

Consider that any GOP senator who votes for conviction as part of a majority voting to do so (which is almost a certainty already) will naturally be upset if the failure to get to 67 votes makes their perspective nevertheless the losing one. Why shouldn’t any such GOP senator huddle with the Democrats post-trial to schedule a quick majority-wins, eminently bipartisan Section 3 vote? Notably, this likelihood is strengthened if the trial goes poorly for Donald Trump and his defense team—which means that, in a sort of paradoxical sense, the present trial does and doesn’t matter for Section 3 purposes.

(Bonus) The “secret ballot” Hail Mary pass. It’s by no means likely, and it’s not even clear how it would be accomplished procedurally, but if somehow the Democrats can use their majority in the U.S. Senate to push for a secret ballot rather than a public roll call at the conclusion of the trial, there’s a chance they could get more votes for conviction than they otherwise would, perhaps even substantially more. That said, it is far more likely that the political calculus for Majority Leader Chuck Schumer would militate in favor of putting Republicans “on the record”—whether or not that’s a smart play to try to get a conviction, and whether or not being on the record in this way is even politically meaningful at this point.