That expresses the irony inherent in this show trial. The Democrats have assembled some facts concerning the invalidity of allegations of fraud in the 2020 election but mostly they have paraded a series of people voicing opinions that there was no fraud. More, they assert that Trump was informed that there was no fraud leaving us to draw the inference that a reasonable man would have concluded that there was no fraud and so Trump acted criminally or at least malevolently.
The difficulty for Republicans derives from the fact that this is a political proceeding so it is not up to the Democrats to prove the negative. In other words, the Democrats don't have to prove the absence of fraud but the proponents of fraud must proof its existence in this bizarre proceeding.
That is to say that in a criminal case the burden for proving the absence of fraud and the knowledge of it's absence on the part of Trump would fall squarely on the prosecution but this show trial is not that. The Republicans either by indifference, misfeasance or because of the logical dilemma facing them, have refrained from making a counterfactual case. They have not set out to prove fraud in the election.
Rather, the Republican reaction to the January 6, hearings is that they are illegitimate, they are improperly staffed, they are undertaking an improper legislative function and they have abandoned any attachment to due process. Further and somewhat collateral to the point of election fraud, they claim that the Democrats themselves are responsible for inadequate security of the capital.
Note, these are not for the most part substantive rebuttals.
My view is Donald Trump will not be indicted and if indicted he will not be convicted because to do so would be to utterly criminalize our time honored political process and be repugnant to the Bill of Rights.
However, the recent dispute between chairman Benny Thompson who says there will probably be no referral for an indictment against Donald Trump and the position of Liz Cheney to the contrary, illustrates that some committee members at least have essentially political rather than criminal objectives in mind.
Whether they will succeed in their object remains to be seen but they are rather successfully so far conflating a political narrative with a criminal narrative and that has the clear potential to influence public opinion and votes. The general public is unlikely to distinguish between the mens rea required to prove a crime and the constitutionally protected exercise of robust First Amendment speech rights in the petitioning of governments for redress. The public is liable to conclude that Trump is guilty of something because he was unreasonable, greedy or power mad and, guilty or innocent of an actual crime, he is unworthy of office.
So the Republicans had to make a hard choice how to defend in these hearings when they would be forced into the position of proving the impossible- the negative. Even more daunting, to advance a defensive argument that the elements of a crime have not been proven, even as the Democrats champion arguments that Trump is evil, offer the risk of losing the war even if skirmish after skirmish is won.
Compound this anomalous situation with the fact that we are in a virtual star chamber proceeding and a negative public outcome for Republicans is not unlikely.
