Donald Trump faces two legal proceedings in the coming weeks that will go a long way towards defining his legacy and his ability to continue being a commanding force in American politics beyond his presidency.
The first, of course, is the former president’s second impeachment trial. Today the House of Representatives will transmit to the Senate its article of impeachment charging Trump with “incitement of insurrection,” and the Senate has agreed to commence the trial the week of February 8. Some people (including many Republican senators who form today’s “move on” caucus) seem surprised, if not annoyed, that anyone thinks it’s a good use of time to impeach a president who has already left office. But the issue here is whether Trump should be disqualified from holding political office in the future.
The charge itself is extremely straightforward; we all saw Trump inciting his followers to storm the Capitol building on January 6, and in the weeks leading up to the attack. Trump’s second impeachment trial is a true sequel of the first one, in that it continues the same story of a president abusing his office in any way he can to improperly influence an election and further his re-election bid. Impeachment I, you’ll recall, was about a Trump phone call to Ukrainian President Volodymyr Zelensky seeking to condition US aid to Ukraine on Zelensky finding some “dirt” on Hunter Biden. And now Act II is about the president’s post-election efforts to “corrupt” the election, as Republican Senator Mitt Romney put it over the weekend. There was the riot aimed at disrupting the congressional certification of the Electoral College vote, yes, but there was also the phone call days earlier to Georgia Secretary of State Brad Raffensperger. And on this call too, Trump was asking someone to “find” him (or manufacture) something – in this case, about 11,000 votes.
It seems highly unlikely the Democrats will convince 17 Republicans to part with Trump once and for all by voting for a conviction. On the other hand, we see more and more evidence emerge of Trump’s improper post-election shenanigans, and plenty of Republicans are torn between their desire to rid the party of Trump’s destructive power and their fear of incurring the wrath of his impassioned base. The conundrum for them remains, as ever, that the Republican Party’s future appears doomed so long as it is controlled by Trump, and anyone’s present inside the party appears doomed if they act on this realization.
The second legal proceeding – maybe we should call this one quasi-legal – involving Trump may prove far more consequential, certainly beyond US borders, than the Senate impeachment trial. It is the Facebook Oversight Board case reviewing the indefinite suspension of Trump from Facebook and Instagram following the Jan. 6 storming of the Capitol.
If the Republican senators agonizing over whether to follow their conscience, the party’s long-term interest, and indisputable facts are as much on trial as Trump is in the Senate, the potential for a rational, international mechanism for regulating online speech stands as Trump’s virtual co-defendant in the Facebook Oversight Board deliberation.
The independent board, launched to much skepticism, is Facebook’s response to years of criticism for the company’s toleration and dissemination (especially through its polarization-loving algorithms) of misinformation and disinformation. The board, which includes an eclectic mix of 20 legal scholars, journalists, and politicians from around the world, was slow to launch late last year, and has started dutifully hearing cases referred to it by Facebook. The idea is that over time the board will resolve nettlesome and recurring judgment calls (for instance, should users be allowed to show gory depictions of victims of political violence?) by setting binding precedents (much like our Supreme Court does in interpreting the Constitution). Facebook even hopes the board’s rulings might sway other social media platforms, and has gone to great lengths to separate the board from the company.
Taking on the Trump case, on which it must rule in 90 days, brings an end to the Oversight Board’s anonymity. The world will be watching. The biggest challenge for social media platforms all along, and especially after they showed Trump a red card, is the quest for rules and standards that can apply across borders. And in the days after Trump’s de-platformation, analysts noted that plenty of foreign dictators who have done far worse than Trump still had access to their Twitter and Facebook accounts.
A convergence of free speech standards has always been, depending on where you sit and where the standards land, one of the internet’s core perils and promises. And even foreign leaders like Mexico’s Andres Manuel Lopez Obrador, who has not engaged in any behavior as toxic as Trump’s, is clearly rattled by the idea of a supra-national entity making decisions about what speech is or isn’t acceptable, impinging on what AMLO considers his nation’s sovereignty. Hence AMLO’s comparison of these platforms to the Spanish Inquisition.
The Oversight Board is poised to make the determination of Trump’s fate less of a US-centric decision. The panel of five experts who will decide whether Facebook must restore the former president’s accounts will include four foreigners, who will presumably be acting with an eye towards setting universally applicable standards. Theirs is an uphill task. AMLO and many other foreign leaders will be following their progress with nervous interest. It’s one thing to decry the whims of a Mark Zuckerberg or Jack Dorsey acting as CEOs of US companies. But a tribunal that gains credibility as an independent arbiter of free speech globally, transcending any one jurisdiction, that could be a real game changer.
* Andrés Martínez is a professor of practice in the Cronkite School of Journalism at Arizona State University and the editorial director of Future Tense, a Washington, D.C.-based ideas journalism partnership between ASU, Slate magazine, and New America .Twitter: @AndresDCmtz