Impeachment Trial Diary: Daily Thoughts on the Senate’s Proceedings

By Benjamin Wittes, Tia Sewell
Wednesday, February 10, 2021, 7:41 AM

Note: This column is written in the first person singular, but significant work summarizing arguments has been done by Tia Sewell, whose name thus appears on the byline. All first person singular pronouns throughout refer to Benjamin Wittes.

Day 5, February 13, 2021

In retrospect, it would have been better for the House of Representatives to pass three separate articles of impeachment—one covering the president’s systematic efforts to overturn the results of the 2020 election, one covering his incitement of the insurrection of Jan. 6, and one covering his abandonment of his constitutional duties to repel the attack on a coordinate branch of government that resulted.

The effort to mash these three distinct offenses into one has created problems for the House managers. It has allowed the former president’s lawyers to argue that the lone article—which alleges incitement of the insurrection—does not cover the president’s conduct either before or after the riot started. It has allowed them to argue that the First Amendment protects the political speech Trump gave on Jan. 6 and thus dismiss everything else. And it has allowed them to argue that Trump’s failure to act in the face of the storming of the Capitol began is irrelevant to the charge of inciting the riot. The managers have decent answers to these points, but having to address them at all is a suboptimal litigating position, particularly because it has become clear that key Republican senators are most outraged by Trump’s conduct during the riot—a matter the text of the article of impeachment inconveniently does not address at all.

In some respects, it all doesn’t matter. The question today is not, after all, whether the Senate will convict Trump. It is whether four, five, six, seven, or maybe a few more Republicans will join with all Democrats to vote to convict. It is how close the Senate will get.

But in some respects, it matters a lot. The former president’s lawyers have given Republicans a fig leaf on the incitement itself. Democrats, after all, have used incendiary language too, and there was a certain amount of pre-planning that Trump’s lawyers can argue means that Trump didn’t incite anything. What’s more, the Brandenburg test is an exacting one. And isn’t it outrageous that the managers are asking the Senate to ignore the First Amendment in evaluating Trump’s conduct?

But the former president’s lawyers have offered no fig leaf whatsoever on the president’s conduct during the riot. They have presented exactly no evidence to contradict the notion that Trump abandoned his responsibility to protect Congress, that he left his vice president and the speaker of the House and 435 members of Congress for dead.

I don’t doubt that, faced with a clean article on this point, Republicans would have somehow managed to vote to acquit Trump. But I suspect it would have made a few of them squirm a bit more had it been presented and argued detached from the larger story, rather than buried in it.

As it is, this matter becomes central today—the final day of the Senate trial—even though it is mentioned nowhere in the article itself.

Friday’s new details about Kevin McCarthy’s phone call with President Trump during the riot has set the stage for today’s proceedings, with most people expecting final arguments and a quick vote.

But Raskin has other ideas. He opens the day with a call for witness testimony. Raskin specifically wants a Zoom deposition with Rep. Jamie Herrera Beutler, who released a statement late on Friday night confirming her conversation with McCarthy regarding the Jan. 6 attack. He mentions the possibility of other witnesses, as well.

Van der Veen steps up to argue that witnesses are unnecessary and that senators should instead just wrap up the trial, threatening that if the House managers want witnesses, he is “going to need over a hundred depositions, not one.” According to Jason Miller, a Trump spokesman, the defense’s witness wish list has 301 names on it and is growing.

Raskin counters that the new disclosure the previous evening makes it appropriate to hear from a limited number of witnesses. The House managers don’t need to interview hundreds of witnesses, he states; and the defense doesn’t either. Their client, after all, could answer all of the relevant questions. Van der Veen comes up to argue about witnesses further, stating that the depositions must be done “in person, in my office, in Philadelphia”—a statement met with raucous laughter in the chamber.

After about 40 minutes of debate, senators take a vote on whether or not to allow witnesses. The majority votes to allow witnesses in a 55-45 vote, meaning that the trial’s timeline is effectively thrown up in the air at this point. One of the premises of the whole enterprise has been that none of the senators actually wants the trial part of the trial. Republicans find the whole enterprise deeply embarrassing. And Democrats want to move on to legislative business. Yet if one is inclined to convict, how can one vote to prevent the managers from putting on the evidence they feel is necessary? And if the Senate allows the managers to bring their witnesses, how does one vote to prevent the former president’s lawyers from bringing witnesses they contend are necessary?

It’s a blackmail game of sorts by the defense. Go forward with this, and we will call a slew of witnesses and make this take weeks or months. If you vote to prevent us from doing so, we’ll use that to denounce the proceedings as grossly unfair.

If Democrats didn’t have their own reasons for wanting brevity, even having just voted to allow the witnesses, there would be answers to such threats. But they do. They also want to vote and get on with things. So the House managers and Trump’s defense counsel and the senators begin negotiations at this point to discuss witness depositions and to find a compromise.

It doesn’t take long. Castor returns from a recess to announce that there has been an agreement between the defense and the House managers: Trump’s team will allow Beutler’s statement to be entered into the record as evidence and will stipulate that her testimony would have been consistent with it, but no witness depositions will occur in the trial. Raskin reads the statement, which reads in its entirety as follows:

In my January 12 statement in support of the article of impeachment, I referenced a conversation House Minority Leader Kevin McCarthy relayed to me that he’d had with President Trump while the January 6 attack was ongoing. Here are the details:

When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: “Well, Kevin, I guess these people are more upset about the election than you are.

Since I publicly announced my decision to vote for impeachment, I have shared these details in countless conversations with constituents and colleagues, and multiple times through the media and other public forums.

I told it to the Daily News of Longview on January 17. I’ve shared it with local county Republican executive board members, as well as other constituents who ask me to explain my vote. I shared it with thousands of residents on my telephone town hall on February 8.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time.

With no further motions, Raskin begins the House managers’ closing arguments. The Senate’s brief flirtation with the idea that its sole power to try all impeachments might include having a trial is over.

Raskin argues that Trump clearly incited the insurrection on Jan. 6, and that Beutler’s statement only advances this point. He says that when Trump allegedly told McCarthy, “Well, Kevin, I guess these people are more upset about the election that you are,” he clearly did not intend to nor act to call off the riot on Jan. 6. This refusal to send help and further analysis is “decisive evidence” of incitement of insurrection, he contends.

He then reiterates the points the managers have made during their arguments. He touches on the “hour-by-hour” evidence of Trump’s incitement. He explains that Trump, seeking to overturn his own legitimate electoral loss, embraced violent extremist groups and assembled a mob to quite literally stop the vote count on Jan. 6. He argues that Trump’s failure to act after and during the riot proves his guilt, all of which was an absolute “dereliction of duty” that is inextricable from inciting the insurrection.

Cicilline is up next. He expands on what happened after the mob stormed the Capitol and denies the defense’s claim that the managers’ evidence was manufactured. Rather, he says, there are certain facts “we know” to be true. Contrary to the defense’s claim, he says, Trump must have known that Pence was in danger on Jan. 6. Here, Cicilline presents a timeline showing Trump’s tweets and phone calls with various lawmakers, including McCarthy, who pleaded with him to no avail that he do something to stop the attack.

Dean then takes the floor to review the evidence presented concerning Trump’s months-long effort to overturn the U.S. election. She argues that Trump’s Jan. 6 speech, by itself, was not the grounds for impeachment—but viewed in concert with the course of Trump’s conduct leading up to Jan. 6, it’s clear that Trump incited the attack. She states that evidence has made it clear that the rioters did what they did for Trump, at his direction, after he riled them for months with fraudulent claims of a stolen election. Dean notes that she didn’t even know the extent to which Trump incited violence and how close the Capitol attack came to a much higher death toll until working on the House managers’ team. “We are in a dialogue with history,” she concludes, urging senators to condemn the past so the country can move forward with hope. She states, “History has found us; I ask that you not look the other way.”

Next, Neguse addresses the arguments presented by Trump’s defense. He begins with the private citizen argument, stating that presidential abuses are extraordinary and must be dealt with in an extraordinary way. Impeachment, as a process separate and apart from the criminal justice system, offers this opportunity, Neguse says. He also sketches out why the defense’s complaints of insufficient due process are invalid; he states that Trump was invited to testify and declined, not to mention that the presentation of evidence during the Senate trial constituted all the due process the president could reasonably ask for. In terms of due process, he also notes that the senators experienced the insurrection firsthand and saw the president’s remarks: “[Y]ou all lived this history,” he states. Neguse also addresses the matter of the First Amendment protections on political speech. Specifically, he counters the defense’s video montage of prominent Democrats urging their supporters to “fight,” arguing that the difference between a normal politician’s use of the word and Trump’s on Jan. 6 is “obvious”; none of those speeches ended in a violent march on the nation’s Capitol, he says.

Neguse asserts that the defense’s arguments are “distractions” and have nothing to do factually with whether or not the president incited the Jan. 6 attacks. At this point, he moves into an optimistic monologue, in which he asserts that he may be naive, as “the youngest member” on the House’s team, but he doesn’t think that the opposition’s diversionary tactics will work. This body secured passage of the Civil Rights Act, he states. It decided to enter the U.S. into World War II. Congress has “always risen to the occasion when it mattered the most,” he says. This is why countries look to the U.S. as a “guiding light, a north star,” he claims. “That decision is in your hands.”

Raskin closes the arguments. He draws back to remarks his daughter made about a rioter who had left home to join Trump’s actions in D.C. on Jan. 6 and told his children that he might die there. “How can the president put children of people’s families in that situation and then just run away from the whole thing?” his daughter had asked. Raskin concedes that he was ashamed; he had only thought about the story like “a prosecutor,” considering it just more “damning evidence” that the rioters were expecting violence. But he says that his daughter thought of it like a “human being … like a patriot.” He notes that beyond the politics and the legality of the situation, there is the morality of the situation—the recognition that “the children of the insurrectionists, even the violent and dangerous ones, they are our children as well. They are Americans.” Here he quotes his late son, Tommy, saying that “it is hard to be human.” He notes that we must take care of the hearts and minds of these children, and take care of our country’s future.

After all, Raskin says, this trial isn’t about Donald Trump; it’s about “who we are.” It’s about actually supporting the people who defended the Capitol, he states. Restoring the honor of the Capitol. Showing the world that the U.S. is, truly, the beacon of democracy it sets out to be. He asks the senators, when you see the footage of Officer Hodges shouting in agony as he’s being tortured by rioters, when the vice president escapes a violent mob intent on hanging him, “[I]s this the future you imagined for our kids?” “Is this America?” That’s up to you, he tells the senators.

The House managers reserve their 28 remaining minutes, and Trump’s defense takes the floor.

Van der Veen delivers about 40 minutes of closing argument, with no other lawyers from the defense counsel speaking during the team’s closing arguments. He begins by assailing the “mess that was the closing of the House managers” and accuses the managers of “doctoring of evidence,” saying that his team didn’t receive the House’s evidence until Tuesday afternoon, when the trial had already begun. Van der Veen continues to state that the House managers attempted to use evidence they had never presented before, which he calls “desperate.” And he states that they didn’t talk about the Constitution, the law or due process for Trump once during their closing.

Van der Veen states that his entire team has repeatedly and unequivocally condemned the violence that took place on Jan. 6; that it was a “heinous act on the home of American democracy.” But he argues that while everyone can agree there was a violent insurrection at the Capitol, this trial asks whether Trump “willfully engaged in violence” toward that end. No matter the “emotion injected” and despite all of the disturbing video footage presented, van der Veen says, Trump is innocent. No “unbiased person” could listen to Trump’s speech on Jan. 6 and believe that it suggested or incited violent action, he asserts.

He further claims that Trump is innocent of incitement because the violence was “preplanned and premeditated by fringe left and right groups” who “hijacked the event for their own purposes.”

Van der Veen continues to contend that Trump’s words have been taken out of context repeatedly by the House managers, who have ascribed bad intentions to Trump’s clipped phrases in order to fit the “false narrative” they have created to “smear” Trump. The managers have done so because Trump is their political opponent, van der Veen says. It is “constitutional cancel culture.” And it is a slippery slope toward impeachment as a political tactic.

Next, he returns to the tu quoque defense, talking about how Democratic politicians have made comments that “gave comfort” to violent protesters during the George Floyd protests in the summer of 2020. President Biden never condemned these riots, van der Veen says. Arguably, by encouraging supporters to donate to a bail fund for demonstrators during this time, Vice President Harris did far more to incite violence than his client ever has, he contends. All of this is to say that Democrats not only want a double standard; they are seeking to censor disfavored political speech using the impeachment process.

He then moves on to discuss what he terms the “Raskin Doctrine,” claiming that the House is arguing that elected officials effectively do not have free speech rights, alleging that the “Democrats have invented an entirely new legal standard” that can’t satisfy the Brandenburg test. “Can Congress now ignore Supreme Court precedent?” he asks.

He concludes by offering senators four grounds on which to acquit Trump: He says that (1) the Senate has no jurisdiction to try a former president; (2) the impeachment article has too many elements, and each allegation should have been made separately under Rule 23 of the Senate; (3) Trump was not afforded due process; and (4) voting to acquit will allow healing to begin, so that the nation can focus on pressing crises.

Raskin then takes the floor again, wrapping up the trial with a final five minutes of thoughts. He responds to van der Veen’s “Raskin Doctrine” comment, saying that if the “Raskin Doctrine” is that no president can incite a violent insurrection, he would take its namesake as an honor. He further contends that the defense has misconstrued Bond v. Floyd—arguing that Trump is being impeached for violating his oath of office, not being prevented from taking that oath of office in the first place, as was the case in Bond. And he ends by noting that during questioning, Trump’s counsel refused to admit that Trump had lost the 2020 election, despite all of the evidence the House presented about how Trump’s big lie had set the stage for violence that unfolded on Jan. 6. Trump incited the Jan. 6 attack, Raskin concludes, “and now he must pay the price.”

The Senate then votes on the article of impeachment: 57 senators vote to impeach, and 43 vote to acquit. As the Constitution requires a two-thirds majority for conviction, Trump is acquitted.

It is impossible to feel satisfied with this outcome. It is hard to escape the feeling that the impeachment clauses have been rendered something of a nullity. Yes, this is the least partisan vote on a presidential impeachment in history. Seven Republicans, including Richard Burr of South Carolina and Bill Cassidy of Louisiana, join the Democrats to convict Trump. Yet it’s not enough. It’s not close to enough.

And if the impeachment power cannot produce a conviction under these facts and under these circumstances, it seems pretty useless. Indeed, does it provide any real protection at all against a president run amok?

Ever since Richard Nixon’s resignation under threat of impeachment, Americans have assumed that the threat of impeachment carries real punch. But Trump has revealed it as hollower in the face of political polarization than I could possibly have imagined. What do we do about that? I have little fear of the specter Trump’s lawyers conjured up of impeachment being weaponized against future presidents. I have a lot of fear, by contrast, of impeachment being a useless tool in the face of future presidents who command the loyalty of a bare third of the Senate for purely partisan reasons. Together, the two Trump trials have shown that in impeachment trials, facts don’t matter, that evidence won’t be presented and doesn’t matter when it is presented, and that party is everything. Transforming the Senate’s sole power to try impeachments into a Senate minority’s sole power to nullify all impeachments is an unforgivable morphing that future presidents will understand and exploit. It effectively means that the president’s four-year term is limited by the impeachment power only theoretically.

The House managers did a remarkable job. As I said earlier, they offered the finest performance of legislative litigation I have ever seen. I don’t doubt it will be meaningful to history and to the public’s understanding of what happened on Jan. 6 and what role the former president played in those events. But that is not what an impeachment trial is for. An impeachment trial is intended to protect the Republic against out-of-control leaders. It is intended to ensure their removal, if they are still in office, and their disqualification, if not.

In this respect, the second trial of Donald J. Trump, as the first, must be judged a total failure.

Day 4, February 12, 2021

The president’s defense has its work cut out for it. It can win on brute force—that is, it has the votes in the Senate to prevail, so it doesn’t really matter how compelling a case Donald Trump’s lawyers present. Or, in the alternative, the attorneys for the former president can try systematically to dismantle the case the House managers have presented over the previous couple of days.

The approach the former president’s legal team chooses? A bit of both. Over the course of the day, the lawyers land a few blows. They make some actual arguments. They raise some actual questions about the case against the former president. And they also yell a lot. They show numerous videos of rioting and of Democrats saying things that are less than total condemnations of violence. They prove conclusively that Democrats have, in fact, used the word “fight” on numerous occasions. And they do a lot of blustering past the facts the managers have put on the table.

The presentation is mercifully short. The president’s legal team uses only a few of the 16 hours available to them. The reason, I think, is that both faces of their presentation are eyeing the doors. On the substantive side, there really isn’t that much to say, and the longer they talk, the more nakedly obvious that fact is. So wrapping up quickly is a wise strategy. On the bluster side, which is both about entertaining and flattering the Trumpist ecosystem’s expectations and about using up some time so the presentation is not embarrassingly short, there is no need to use anything like the full time available to the defense.

The president’s legal team is once again getting panned. Writing in the Atlantic, David Frum asks: “I watched this self-pity party from my own house, only a few miles north and west from the Capitol attacked by a Trumpist mob on January 6. And I thought: How on earth could a former president of the United States possibly have hired a team of boobs this bad at law?

I actually think the president’s team did a little better than that. Yes, they are thoroughly outclassed by the other side. Yes, their presentation is dripping with grievance and sneering contempt. And yes, they are ultimately ineffective. But they also have a really bad hand to play—except, of course, in the not-insignificant sense that they have the votes to prevail no matter what they do. As I noted yesterday, they have no good arguments that the president’s conduct was okay and they have to make their bad arguments at length. There is no good way to do that following the case the managers put on.

Michael van der Veen opens the defense counsel’s argument with the assertion that the impeachment charge brought against Trump is “an unjust and blatantly unconstitutional act of political vengeance.” It’s wrong on the facts, he says. This opening claim serves as a broad and central thesis for the defense, which runs throughout the roughly three hours of argument they bring forth. Van der Veen argues that President Trump encouraged his followers to engage in peaceful protest on Jan. 6—which is “the very antithesis” of the incitement that is “slanderously” alleged by the House impeachment managers. Van der Veen then sketches out a few main points to his argument, which provide a road map for the arguments that follow.

First, he states that, contrary to the House impeachment managers’ assertions, Trump’s rhetoric was protected by the First Amendment as political speech. Van der Veen contends that Trump brought his case before the various judicial bodies because the entire premise of Trump’s election contention was that the U.S. democratic process should play out by the letter of the law. He states that this is a common practice among politicians and, to this end, plays a video showing Democrat lawmakers objecting to the certification of Trump’s electoral victory in January 2017.

He then moves on to emphasize that Trump is a “law and order” president. The defense rolls a video of Trump affirming, over and over, his support for “law and order,” set off against clips of Democratic commentators and politicians either making incendiary comments or speaking about unrest without outright condemnation. The defense’s point is that this whole trial is hypocritical: Democratic politicians themselves “endorsed and encouraged” riots throughout 2020, van der Veen states. Further, he says “unlike the left, President Trump has been entirely consistent” in his opposition to mob violence. The Democrats, by contrast, “clearly demonstrated” their belief that the legitimacy of violent rioting depends on protesters’ political views.

All of which builds to the height of van der Veen’s opening remarks: This trial, he states, is “constitutional cancel culture” in which partisan politicians are attempting to “censor” and “smear” Trump retroactively. He states that “now is not the time for such a campaign of retribution. It is a time for unity … to rise above partisan lines.”

David Schoen, another Trump team lawyer, then takes the floor to speak further about the “hatred, vitriol and political opportunism” of the impeachment. He begins by rebutting the House managers’ claim that they did not intentionally hold the article of impeachment and contends that this “snap impeachment” denied Trump sufficient due process. The argument is that in their haste to impeach Trump, House Democrats sped through proceedings without sufficient investigation into the Capitol riot. This is another theme that comes up frequently throughout the day. Schoen alleges that this lack of due process is evidenced by Speaker Pelosi’s own calls for a 9/11-like fact-finding commission to determine the causes of the riot. She seems to acknowledge that we don’t yet know the facts, he argues. But impeachment did not wait until we do. Schoen also contends that the House managers repeated use of “reportedly” in their presentation means that they have no real evidence; “reportedly” is “exactly as reliable as, I googled this for you,” he claims. “You get more due process when you fight a parking ticket.”

Then Schoen goes in a different direction: He claims that the defense counsel has “reason to believe” that the House managers manipulated evidence presented in prior days of the trial. Schoen seems to allege that the House managers’ tweets had been doctored in some way. He cited as evidence a photo of Raskin from a New York Times article that showed an incorrect date on a tweet and a Twitter check mark next to the account name, which Schoen claimed was wrongly attached to the user’s account. (A senior impeachment aide told NBC news that the House team re-created images of Trump’s tweets because his account was removed from the platform, and this was a mistake that managers corrected prior to trial. The text is entirely unchanged.) Schoen also contends that a Trump supporter had not made a spelling error but had been referring to “calvary,” that is, had made a religious reference to the site of the crucifixion or an open-air representation of it. The tweet, he argued, wasn’t a promise to bring the “cavalry,” which is to say the mounted troops, in a tweet about Jan. 6, as House managers had suggested.

Schoen also contests the House’s video presentations, claiming that the managers cut full videos from Trump’s Jan. 6 speech and his remarks following Charlottesville to bring forth evidence that did not reflect the president’s words. He plays the full videos from these instances, emphasizing that on Jan. 6 Trump told protesters to “peacefully and patriotically” cheer on certain members of Congress. “You have to get your people to fight, and if they don’t fight, we have to primary the hell out of the ones that don’t fight,” Trump is shown saying. Trump was just saying people should use the political process.

And in that, Schoen argues, he is no different from Democrats. Schoen plays a video—an endlessly long video—of Democratic lawmakers using the word “fight” in campaign ads, public statements and rally speeches. These include politicians like Elizabeth Warren, Kamala Harris, Chuck Schumer, Jamie Raskin, Nancy Pelosi, Joe Biden and other prominent figures. It’s a full 10-minute montage of “fight” references, set against intense music, which segue quickly from one to the next.

Schoen moves next to different video footage, this one targeted at Democrats’ responses to protests in 2020. The clips flash between disturbing depictions of violent riots, fire, and shots of politicians saying, in various ways, that they are “proud of the protests” and are happy to see people turning out peacefully. This video, too, is paired with ominous music.

Next Schoen plays videos of Democratic lawmakers challenging the integrity of U.S. elections in the past—including bits from Hillary Clinton, Stacey Abrams, Nancy Pelosi and Bernie Sanders.

It’s the full tu quoque defense.

Van der Veen then returns to address the First Amendment in the context of Trump’s speech. He says that this case is about the managers’ “political hatred”' for Donald Trump, which has led them to falsely construe the president’s statements and make “astounding” legal arguments. On the First Amendment issue, van der Veen says, there are two main questions that matter:

  • Does the First Amendment apply to the Senate chamber in these proceedings?
  • Does Trump’s speech fall under the protection of the First Amendment?

Van der Veen states that the answer to both of these questions must be yes.

Text of the First Amendment prohibits senators from ignoring the protection, as it explicitly prohibits Congress from “abridging the freedom of speech,” he argues—ignoring the fact that the prohibition is against making law and impeachment is not a legislative act. He assails the House managers’ First Amendment arguments, deeming them “totally intellectual dishonesty” and calling the 144 constitutional law professors who agreed that there was no legitimate basis to use the First Amendment in Trump’s defense “partisan.” He further states that the professors’ letter is a threat to his personal professional reputation. It is this argument that prompted Frum’s rage in the Atlantic:

If future generations of law professors want to teach a class in what never to do, the belligerent and self-indulgent performance of Michael van der Veen, one of Donald Trump’s impeachment lawyers, could provide a lot of the video content. Deep into his defense of the former president today, van der Veen broke into a highly personal complaint. More than 140 law professors—including President Ronald Reagan’s solicitor general and a co-founder of the conservative Federalist Society—had signed a letter condemning the Trump team’s arguments as “frivolous.” This letter badly hurt van der Veen’s feelings. The letter, he said, represented[] a “direct threat to my law license, my career, and my family’s financial well-being.”

Back on the merits, van der Veen states that because Trump is not just “a guy on the street” or a “fire chief” but, rather, an elected official, he has “enhanced free speech rights,” citing Supreme Court cases Wood v. Georgia and Bond v. Floyd.

In Wood v. Georgia, the Supreme Court ruled that a sheriff’s criticisms of grand jury proceedings—specifically, criticisms of the jury’s “crude attempt at a judicial intimidation” of Black voters and leaders—were protected speech under the First Amendment. The Wood decision holds that the sheriff “was an elected official and had the right to enter the field of political controversy, particularly where his political life was at stake.” Similarly, van der Veen argues, Trump’s political speech encouraging investigation into voting irregularities in the 2020 election was, by the logic of this ruling, protected speech.

Bond v. Floyd concerned the conduct of Julian Bond, the civil rights activist who had advocated for the burning of draft cards during the Vietnam War. The Supreme Court ruled that Bond’s speech was protected under the First Amendment, requiring “that legislators be given the widest latitude to express their views on issues of policy.” Van der Veen argues that this decision, too, extends to Trump’s conduct, as Trump is an elected official and “the Supreme Court says elected officials must have the right to freely engage in public speech.” He further states that with Bond, legislators have a unique obligation to take a stance on controversial political questions so that their constituents can be fully informed—and claims that Trump was doing just this with his election rhetoric.

As for the second question, whether Trump’s speech falls under the protection of the First Amendment, van der Veen contends that political speech, particularly, is secured by the amendment. He says that the government cannot prohibit speech simply because it has the potential to increase the likelihood of violence in the future. And he draws on the Brandenburg v. Ohio “landmark” Supreme Court case, which “precludes speech from being sanctioned as incitement to riot unless” three conditions are met:

  1. The speech explicitly or implicitly encouraged use of violence.
  2. The speaker intends that his or her speech results in violence.
  3. The imminent use of violence is the likely result of the speech.

Van der Veen says that the president’s Jan. 6 rally statement to “peacefully and patriotically make your voice heard” fails this test and criticizes the House managers’ focus on the word “fight.” He asserts that politicians talk like this all the time—and once again, the defense rolls the previously shown video in which Democratic lawmakers use the word “fight” in speeches.

After a recess, Bruce Castor takes over to expand on the Brandenburg argument. He is less embarrassing this time than during his argument on Tuesday over jurisdiction.

Castor states, “Clearly, there was no insurrection …. [W]hat our colleagues meant was ‘incitement to violence.’” According to Castor, insurrection must include some form of “shadow government” and more premeditation than was the case on Jan. 6. He goes on to argue why the Brandenburg standard is not met and Trump’s speech is protected. Castor claims that Trump’s calls for peace on Jan. 6 absolve him from guilt for encouraging the violence that occurred that day. As for intention to spark violence, Castor states that this can’t be true, given that Trump never hesitated to show his support of the law—in fact, Trump is “the most pro-police, anti-mob rule president this country has ever seen.” And on the third question of imminence, Castor contends that the FBI, Justice Department and House managers themselves have all confirmed that the violence was planned well in advance. In short, he argues that Trump’s speech did not push rioters into acting violently, as they were already committed to doing so. In walking through the timeline, he claims that rioters were violent prior to Trump’s remarks and that Jan. 6 “was a pre-planned assault, make no mistake.”

In a particularly ill-advised decision, Castor also spends some time disputing House managers’ claims about Trump’s call with Georgia Secretary of State Brad Raffensperger. He notes that the call was “surreptitiously” recorded. He argues that the widely publicized quotation, in which Trump demands that Raffensperger “find 11,780 votes” was taken out of context. He then states that “there was nothing untoward” about Trump’s language, given that the president simply “wanted signature verification to be done in public.”

The private call that was made public by others cannot really be the basis to claim the president intended to incite a riot because he did not publicly disclose the contents of the call,” Castor argued.

This is a bad argument for Castor. It causes him to quote repeated segments of a very damning tape. It does not establish that Trump’s request to find the specific number of votes was taken out of context. It does, rather, highlight more of his client’s misconduct.

Castor is now on to his closing remarks. He claims that “the only reason” he had to bring up the Raffensperger call in the Senate chamber was because “once again, the media and their Democratic allies distorted the true conversation to mislead you and the American public.” He asserts that this political distortion is not new; in fact, it is the very basis for the impeachment trial. According to Castor, the House managers’ “goal is to eliminate a political opponent, to substitute their judgement for the will of the voters.” At this point, the defense rolls another video compilation of Democratic lawmakers calling for the removal of Trump by impeachment so that he will never be able to run for office again.

Castor concludes with a warning that this trial “asks for constitutional cancel culture to take over in the United States Senate.” He addresses Democrats and Republicans separately, urging Democrats to “look to the principles of free expression and free speech” and asking the Republicans to “resist what will be an overwhelming temptation” to attempt to cancel and silence the opposing party when they are next in the majority.

Overall, it is a lousy presentation, but if its purpose is to give Republican senators a little more comfort in their commitment to acquittal, it is likely effective. In the recess before the senators get to ask their questions, Sen. Ron Johnson of Wisconsin seems ebullient, saying the president’s legal team “blew the house managers’ case out of the water.” Whether he actually believes this or whether it’s an act doesn’t really matter. It is the line. And it will be the line for more than enough senators.

The questioning period wraps up relatively swiftly. The following is a paraphrased list of the questions senators asked and the answers counsel gave:

  • Sens. Schumer and Feinstein ask the House managers: Would the Capitol riot have happened if not for President Trump?

Castro answers, in effect, no. Trump was a but-for cause of the events. Everything that occurred on Jan. 6 was “because of his doing. And although he could’ve immediately and forcefully intervened to stop the violence, he never did.”

  • Sens. Graham, Cruz, Marshall and Kramer ask the defense: Does a politician raising bail for rioters encourage more rioting?

Castor answers, “Yes.”

  • Sen. Warnock asks the managers: Did dozens of courts reject Trump’s efforts to overturn the election?

Raskin answers, that is true. But there is no problem that he challenged the election results in court, Raskin says. The problem arose when he stoked violence.

  • Sens. Collins and Murkowski ask the defense: Exactly when did Trump learn of the breach of the Capitol? What specific actions did he take to bring the rioting to an end, and when did he take them?”

Van der Veen answers that the house managers have given us no evidence to answer that question. It’s all just hearsay, he says.

  • Sen. Rosen asks the managers: Should President Trump have known his tolerance of anti-Semitic speech, hate speech, could have incited the violence on Jan. 6?

Plaskett answers, in short, that yes, Trump has a “pattern and practice of encouraging violence, never condemning it,” citing as evidence his implicit support for the Proud Boys and his verbal attacks on election officials. She says it’s not a coincidence those very same groups showed up on Jan. 6.

  • Sens. Scott and Hagerty ask the defense: Given that more than 200 people have been charged for their conduct on Jan. 6, isn’t this just a show trial?

Castor answers, in short, yes, it is.

  • Sens. Markey and Duckworth ask the managers the question previously asked to Trump’s defense team: Exactly when did Trump learn of the breach of the Capitol? What specific actions did he take to bring the rioting to an end, and when did he take them?”

Plaskett answers, “This attack was on live TV on all major networks in real time.” She argues that Trump knew the severity of the threat as it was going on but did not act to stop it.

  • Sens. Romney and Collins ask both sides: When Trump sent the disparaging tweet at 2:24 p.m. regarding Pence, was he aware that the Secret Service had removed Pence from the Senate chamber for his safety?

House managers answer first, with Castro stating that cable news had already shown that rioters were inside the building at this time. Trump was already being contacted by lawmakers who asked him to tell the rioters to stand down at this point, managers say.

Then, van der Veen for the defense states that “the answer is no,” claiming there is no evidence on the record here because the House rushed the article through without affording Trump due process.

  • Sens. Klobuchar, Casey and Brown ask the managers: You relied on past impeachment precedent such as Belknap. If we don’t convict Trump, what message will we be sending to future presidents and Congresses?

Plaskett claims that a failure to convict Trump will be devastating for the country. “Decisions like this will decide who we are as a people—who America is” as the world, and extremists, watch.

  • Sens. Lee, Hawley, Crapo and Portman ask the defense: Multiple state constitutions enacted prior to 1787 specifically provided for the impeachment of a former officer. Does this absence of language in the Constitutions indicate that the Framers did not intend to allow impeachment of former officials.

Van der Veen says, yes, the Framers absolutely discarded this option intentionally.

  • Sen. Padilla asks the managers: How did Trump’s claim of election fraud radicalize his followers?”

Castro answers that it was about the emotion. Trump spent months convincing his base that the election was stolen in order to inflame tensions. When one threatens the legitimacy of an American’s vote, one threatens that person’s voice. And people responded.

  • Sens. Hawley and Kramer ask both sides: If the Senate’s power to disqualify is not derivative of the power to remove, could the Senate disqualify a sitting president but not remove him or her?

Van der Veen for the defense responds first but does not address the question. He uses his time to claim that Castro was misrepresenting a quote by Trump to “fight to the death.”

Raskin responds for the managers, saying that under Article II, Section 4, a president who is in office must be removed, with or without disqualification. If he’s out of office, Raskin says, he can be disqualified without removal. Raskin states that these processes have always been treated as separate.

  • Sen. Warren asks the managers: Has raising objections to certifying the Electoral College in the past led to an insurrection?

Raskin answers in the negative.

  • Sen. Kramer asks the defense: How can Trump be anti-Semitic considering his pro-Israeli stance?

Van der Veen responds, accusing the managers of “doctoring the evidence.”

  • Sen. Sanders asks both sides: Did Trump win the 2020 election?

Plaskett responds for the managers. She says that, as we all know, and as the courts have proven, Trump lost the election.

Van der Veen answers for the defense, expressing concern about the question: “Who asked that? My judgment is irrelevant,” he states. His words are met with murmurs in the chamber.

  • Sen. Johnson asks both sides: Was the attack on the Capitol predictable? Why were Capitol law enforcement caught off guard?

Van der Veen responds first, saying that there’s “no due process at all” in this trial, meaning that he cannot deliver a clear answer to this prompt. But he notes that there was clearly some intelligence ahead of time indicating that it was coming.

Plaskett responds for the managers, stating that the defense counsel wants to blame everyone except Trump, but he is the one responsible.

  • Sen. Merkley asks the managers: If a president lies repetitively to voters and invites dangerous groups to D.C., can he be exonerated for inciting an insurrection because he said to “be peaceful”?

Castro answers, no. The occasional word to that effect does not absolve him from blame. He did not forcefully tell these people to immediately leave the Capitol. Castro notes that Trump used the word “peaceful” once during his speech on Jan. 6 and “fight” 20 times. Raskin steps up to add to the remarks, stating that if “you rob a bank but on the way out the door yell ‘respect private property,’ that’s not a defense.”

  • Sen. Cruz asks both sides: Where did the House managers derive their definition of a newly created legal standard for incitement? Using this proposed standard, is there any way for Kamala Harris, who encouraged followers to raise bail funds for rioters, not to be considered culpable?

Raskin responds that it is “unimaginable Harris would incite violence,” and, regardless, it’s an irrelevant question to the situation at hand. He claims that, based on the evidence, the House compiled the elements to show the most definitive proof that the president had intentionally engaged in an effort to enrage his base and push his supporters to violent action.

Van der Veen then responds for the defense, arguing that this “newly created Raskin Doctrine on the First Amendment” fails and that this body must instead follow the Brandenburg test, specifically.

  • Sen. Murray asks the managers: How was the president’s “remember this day forever” tweet relevant to his guilt?

Castro answers, saying that the tweet proves Trump acted intentionally to encourage violence that day. Trump didn’t call the Guard, he says. The tweet, which praises the riot, shows that Trump foresaw this was going to happen, helped to incite it over many months and ultimately “reveled in it” as it happened, according to Castro.

  • Sen. Cassidy asks both sides: Do Trump’s tweets and lack of response on Jan. 6 show that Trump was tolerant of the threat posed to Pence by rioters?

Van der Veen answers first, saying that it does not. He claims that he “disputes the facts that are laid out in the question.” He again states that this is a result of a lack of due process.

Raskin responds, saying that Trump’s counsel has no room to complain about due process because Trump refused to testify. Let Trump talk under oath, Raskin says, so we can hear what he did to protect Pence that day.

  • Sen. Manchin asks the managers: Would the president be made aware of intelligence regarding an attack on the U.S. Capitol? Would he be responsible for protecting the Capitol?”

Plaskett answers in the affirmative to both questions. The president is commander in chief, she says; he had full authority and responsibility to protect the Capitol and unrestricted access to intelligence briefings.

  • Sen. Sullivan asks the defense: What precedent does this trial set for due process?

Van der Veen responds that “due process is never discretionary” and alleges that the managers have engaged in “prosecutorial misconduct.” He argues that this could hurt minority political parties in the future and would go against our national values. And he states that the “due process part” of the trial “should be enough to give anyone who loves our Constitution and loves our country great pause to do anything but acquit.”

  • Sen. Blumenthal asks the managers: Did the Brandenburg case prohibit holding public officials accountable through the impeachment process for incitement of violence?

Raskin answers. He starts with the letter from 144 prominent law professors “across the ideological spectrum,” which claims that Trump is culpable even under the Brandenburg standard. He notes that this is true even if one ignores Trump’s dereliction of duty.

  • Sen. Marshall asks the defense: How did Trump singularly incite a riot if the riot had begun before the conclusion of his Jan. 6 speech?

Van der Veen answers. Yes, he says, the managers contradict themselves on this point. He then goes on to talk about the Brandenburg standard in response to Raskin’s prior remarks.

  • Sen. Van Hollen asks the managers to respond to the prior question.

Raskin answers. He opposes the counsel’s invocation of Bond v. Floyd, arguing that it is disrespectful to link Bond, an American hero, with the storming of the Capitol. Plaskett reiterates central claims from the managers’ arguments, that Trump summoned the mob and lit the flame on the Jan. 6 events.

  • Sen. Rubio asks both sides: What precedent does this case set for removing other former elected officials?

Raskin answers for the managers, stating that the “jurisdiction issue is over,” as the Senate already voted on it. And further, he states, President Trump committed his crimes and was impeached while he was in office, so there are no implications for former officials.

Van der Veen responds for the defense, stating that this could create a “slippery slope,” in which many former officials could be impeached. He argues that “Raskin can’t tell you on what grounds you acquit” and states that “if you believe there was no due process, that can be your reason to acquit” and if a senator believes there’s no jurisdiction, he can’t tell you not to vote on that basis.

  • Sen. Bennet asks the managers: What would have happened if elected officials had not upheld the lawful election of President Biden and the rule of law?

Castro responds, reminding senators of the “incredible pressure” that Trump put on election officials and recounting specific instances of reported intimidation. He ends on the note of precedent: If this conduct is not punished, someone will be enabled to do it again in the future.

  • Sen. Cornyn asks both sides: Isn’t a president subject to criminal prosecution after leaving office, even if those acts are committed in January?

Castor responds for the defense. He states that there is no such thing as a “January exception” to impeachment, as the Constitution makes it very clear that a former president is subject to criminal prosecution.

Raskin replies for the managers contending that the criminal prosecution serves a different purpose than impeachment. Impeachment is “not a vindictive power” but, rather, a power designed to “protect the republic.” He holds that the “January exception” is real if the Senate cannot try Trump, because there is a distinction between the deterrent of criminal prosecution and the protection of impeachment.

The questions are now over, and the trial wraps for the evening. The senators will reconvene on Saturday, apparently for closing arguments and a vote.

There are a lot of facts still in dispute, facts one might expect a trial to attempt to resolve. To name a few:

  • How completely did Trump abandon his duty to defend the Capitol in the hours between his speech and the securing of the building?
  • Did he really abandon his vice president to the mob and leave him for dead?
  • Was his primary concern that afternoon really pursuing his agenda of foiling the counting of the electoral votes, and was he really gleeful at the attack?
  • What do we really know about his intent?

The managers have by far the better of the arguments on these and other questions, yet nobody should feel comfortable that the points are well established in either direction. In a sane world, Saturday’s proceedings would thus see a motion to call witnesses on these points and enhance the record with firsthand testimony.

I have little confidence that this will happen. Both sides clearly want this over. There do not appear to be a significant number of votes in play. So it looks like things are going to wrap up.

It looks that way even though just after the proceedings conclude, new information leaked to CNN about just how bad Trump’s conduct was that day:

In an expletive-laced phone call with House Republican leader Kevin McCarthy while the Capitol was under attack, then-President Donald Trump said the rioters cared more about the election results than McCarthy did.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said, according to lawmakers who were briefed on the call afterward by McCarthy.

McCarthy insisted that the rioters were Trump’s supporters and begged Trump to call them off.

Trump's comment set off what Republican lawmakers familiar with the call described as a shouting match between the two men. A furious McCarthy told the then-President the rioters were breaking into his office through the windows, and asked Trump, “Who the f--k do you think you are talking to?” according to a Republican lawmaker familiar with the call.

But don’t look to this trial to tell you the story of what happened that day to McCarthy, to Pence, or from the perspective of the White House staffers surrounding Trump.

It’s time to move on.

Morning Briefing: February 13, 2021

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Day 3: February 11, 2021

The House managers wrap up their case on this second day of arguments with a shorter presentation than they gave on Feb. 10. The day is less dramatic. The material is less new. The managers err today sometimes on the side of repetition. And yet they present a powerful summation and completion of the first day’s arguments. Raskin and his team have done something remarkable here: an unusual display of legislative discipline, imagination, and teamwork in presenting a complex case over a protracted period of time. They have sublimated individual ego to the group effort, something that is very rare in elected officials. They will lose, of course, but that is really not about them or about the case they have made. That is about Republican senators engaged in something closely akin to jury nullification.

Diana DeGette of Colorado opens the day by taking a moment “to step back from the horrors of the attack itself [to] look at Jan. 6 from a totally different perspective—the perspective of the insurrectionists themselves.” She focuses specifically on the mob members’ belief that they were following direct orders from President Trump, arguing that “the president told them to be there,” so they thought they wouldn’t be punished. While Trump’s defense may argue that the insurrectionists did this of their own volition, DeGette argues that the rioters themselves say otherwise. She shows video footage of a crowd chanting “fight for Trump” while entering the Capitol and displays direct quotes from the rioters, all of which echo the idea that they were “called” upon by the president to show up.

Further, DeGette claims, the rioters “did not shy away from law enforcement” because they genuinely believed they were doing as the commander in chief had directed—a notion illustrated by the many rioters who have since expressed regret for their actions. According to the lawyer for Jacob Chansley, who wrote a threatening note to Vice President Pence on Jan. 6, Chansley now “feels duped by the president” and “regrets very, very much” his role in the Capitol attack. DeGette displays other statements to the same effect, quoting a rioter’s lawyer who had pointed out, “These people were acting in a way they have never acted before. ... Who lit the fuse?” DeGette states: “Donald Trump told these insurrectionists to come to the Capitol and ‘stop the steal.’” She concludes her remarks by noting the uncanny similarities among rioters’ statements: They attributed their actions to Trump’s invitation and instruction. These people are being held accountable for their actions, says DeGette. “Their leader, the man who incited them, must be held accountable as well.”

It’s an interesting argument and, in its own way, an effective one. The president’s lawyers are sure to contend that Trump just gave a speech, that he didn’t direct anyone to do anything illegal, and that anyone who did is solely responsible for his or her own conduct. But the managers along the way have argued that Trump had a known code with his supporters—a code in which he could communicate with them without explicit direction and while maintaining plausible deniability as to his own actions. DeGette here is showing that the rioters understood the code as an instruction. Whatever the former president’s explicit words may have been, the message they received was the very one the managers contend Trump intended: that they should march on the Capitol and use violence as needed to stop the counting of electoral votes.

Jamie Raskin picks up on this theme and now describes how Trump has incited violence in the past. He asserts that the president’s tactics were “road-tested,” that Trump has, for years, engaged in campaigns to rile his supporters and incite violence “for his own political gain and his own strategic objectives.” He weaves together a timeline of Trump telling his supporters to “knock the crap out of” counterprotesters at MAGA rallies in 2016. He says that as Trump told his followers to be a little more violent, they responded in kind, showing videos of Trump’s inflammatory comments and his followers’ actions as evidence.

And it wasn’t just Trump’s words before violence that helped encourage it: “It was also his explicit sanctioning” of violence after it occurred, Raskin says. Videos display far-right extremists at Charlottesville, contrasting their racist vitriol with Trump’s later refusal to unconditionally condemn the rioters. Raskin focuses particularly on the incident in October 2020, when 14 men were charged in connection with a kidnapping conspiracy to abduct Michigan Gov. Gretchen Whitmer, whom Trump had repeatedly assailed during rallies and on Twitter. Despite the seriousness of the conspiracy, Trump continued to make, in Raskin’s words, “a little inside winking joke about his incitement” of the violence in Michigan and continued to inflame tensions and vilify Whitmer, rather than condemn the violence. Raskin claims that Trump’s history of incitement and failure to condemn violence after it has happened makes him all the more liable to do it again—finishing his argument with a warning: “If he gets back in office, we will have no one to blame but ourselves.”

Ted Lieu of California builds on this point by arguing that Trump’s behavior after the attack indicated a dangerous lack of remorse. Lieu states that “not even once” did Trump condemn the attack on the day it occurred, despite the pleas of numerous lawmakers who experienced the violence firsthand. Rather, when the president told insurrectionists to go home—three hours after the attack—he also stated “we love you” and repeated his false claims about a stolen election. Lieu claims that Trump was “eerily silent” on Jan. 7, until finally—nearly 30 hours after the attack—he released a video condemning the Capitol breach. But notably absent from this video, Lieu notes, was the instruction to never do it again. Nor has Trump shown any remorse or taken responsibility in the weeks since: The House managers show a video from Jan. 12, in which Trump states that his speech on Jan. 6 was “totally appropriate.”

DeGette describes how extremist groups were emboldened by Trump—warning that unless there is action now, “the violence is only just beginning.” According to U.S. intelligence community bulletins, she shows, there was a great increase in violent online rhetoric and credible threats following the Capitol breach. She covers the price in dollar terms to both state and federal governments associated with increased security measures following the riot and argues that constituents have also suffered from a lack of regular access to their representatives. DeGette also notes that experts who study domestic extremist violence in the U.S. have stated that the “perceived success” of Jan. 6 will foment future attacks, which pose a specific threat to racial, ethnic and religious minorities in the United States.

Then David Cicilline turns to the damage done to Congress specifically and to the democratic process. He plays videos in which representatives describe the “surreal” events that took place in the Capitol. He reminds the Senate of the previous day’s evidence, which showed rioters’ declaring their intent to kill specific U.S. officials, Mike Pence and Nancy Pelosi in particular, and reiterates that these insurrectionists were literally looking to overthrow the government by targeting those in the chain of command. He talks about the people traumatized that day: congressional staffers, custodial workers and police officers all suffered great harms simply because they showed up to do their job, he states. Cicilline highlights the human toll that Jan. 6 took on minority staffers and law enforcement. He describes how janitorial staffers—many of them people of color—were made to clean up the mess that white nationalists had left behind just hours after some feared for their lives during the attack. Workers cleaned feces smeared on the walls of the Capitol building and scrubbed blood off the floor, Cicilline says, quoting a worker who stated, “I felt bad. I felt degraded.” And law enforcement officers, too, were seriously abused and harassed by the insurrectionists. Cicilline details the scores of injuries sustained by police, and references the fact that three officers present on Jan. 6 have since died. Black officers have described the myriad racist attacks they personally experienced on Jan. 6. “These people matter,” Cicilline states.

After a recess, Joaquin Castro takes the floor to discuss the harm to national security presented by the Capitol riot. “Every foreign adversary considering attacking this building got to watch a dress rehearsal, and they saw that this building could be overtaken,” he states. Castro raises a slew of security concerns, ranging from a laptop stolen from Pelosi’s office—which a rioter allegedly planned to sell to Russia’s foreign intelligence service—to documents taken from Mitch McConnell’s desk, to all of the other videos showing intruders rifling through lawmakers’ workplaces. He shows statements made by China, Russia and Iran about Jan. 6, arguing that U.S. adversaries have seized on the Capitol attack as a chance to publicly undermine the prestige of American democracy. Castro urges senators to convict Trump, arguing that as the world watches, to do otherwise would be “to forfeit our power as a north star on freedom, democracy and human rights, and most of all on the rule of law.”

The managers have now finished their presentation of evidence, and they turn to preemptively addressing what they expect to be the president’s defenses.

Joe Neguse begins by responding to Trump’s attempts to use the First Amendment as a defense, describing the argument’s factual flaws. The former president did not simply make a controversial speech, he argues. This was, rather, a president using his unique platform to incite an insurrection in an attempt to overturn a legitimate election. It was far more than rhetoric, Neguse says, calling Trump’s months of lies to his base the equivalent of creating a “powderkeg,” to which Trump effectively “struck a match” on Jan. 6.

Raskin then addresses the legal flaws in the defense’s First Amendment protections arguments. The idea that Trump had a free speech right to act as he did is dead wrong, he argues. Trump was the president when he made the remarks, meaning that he had sworn an oath to preserve and protect the Constitution. That oath comes with special obligations. If a president repeatedly advocated for totalitarianism or swore an oath to a foreign agent, it would absolutely not be protected speech, Raskin asserts, while noting that a private citizen would be well within his or her constitutional rights to do either of these things. Raskin states that the president’s First Amendment argument would allow presidents to use the unique “unmatched power, privilege and prestige” of their office “in ways that risk the ruin of the republic.” A public employee such as a public school teacher or cop can be fired for making inappropriate statements, especially if those ideas were to be in direct conflict with their official duties. The president can too. In Justice Antonin Scalia’s words, Raskin quotes, one “can’t ride with the cops but root with the robbers.”

Raskin further argues that the First Amendment, even where it applies, does not protect incitement of violence. So even if Trump was just a random guy, and not president, his speech would still be proscribable. Finally, Raskin asserts that the First Amendment does not create a “superpower defense for a president.” It protects people’s ability to engage in democracy—the very right, Raskin notes, that Trump attacked by challenging the results of the 2020 election. Trump actually halted free speech in Congress by sending a mob to storm the Capitol during electoral certification, he says.

Lieu then steps up to take on another argument made by Trump’s defense: the purported lack of due process afforded to him in the House impeachment. Lieu contends that “this case [did] not raise very complicated legal issues” and “the gravity of the president’s actions” warranted quick and decisive legislative action. In other words, President Trump cannot complain that “the House impeached him too quickly for the emergency he caused,” Lieu states. He denies the defense’s contention that the House held back the article of impeachment from the Senate deliberately, arguing that the Senate had not yet reconvened, which prevented the House from moving more quickly. Regardless, Lieu states that the Senate’s sole power to try all impeachments is, in itself, a repudiation of the due process claim: “President Trump is receiving all process that he is due right here in these chambers.”

Raskin returns to the well of the Senate to begin closing the House managers’ argument. He notes that impeachment was created for a purpose that is separate and distinct from criminal prosecution—it was created to deter constitutional crime, such as incitement of insurrection. He asks: “What is impeachable conduct, if not this?” And he warns of the profound consequences that would come from failing to impeach Trump. “The only real question here,” he tells senators, “is the factual one”—that being, whether Trump acted willfully to encourage violence on Jan. 6.

Neguse now summarizes the factual case presented by impeachment managers against Trump. He begins by presenting three questions about the charge facing Trump:

  • Was violence foreseeable?
  • Did Trump encourage violence?
  • Did he act to do so willingly?

To each question, Neguse argues, the answer is yes.

Finally, Raskin ends the House impeachment managers’ arguments with closing thoughts.

In the one part of the managers’ entire presentation that veers into the typical legislative recitation of democratic platitudes, he reflects on the phenomenon of democracy amid the history of despotism and the miracle of the United States, a nation founded on “government of the people, by the people, for the people.” He riffs on the Gettysburg Address, noting that Lincoln’s project was to move the country forward from strife and toward a more perfect union. And from all of this, Raskin says, our democracy has been built up to greatness by the Constitution, of which Article I establishes the power of Congress—the people’s branch—to govern, giving it also the power to hold the president accountable by means of impeachment. “Our Framers were so fearful of presidents becoming tyrants,” Raskin notes, that they inscribed the oath of office into the Constitution: to preserve, protect and defend the U.S. Constitution. This fear is the reason Congress has the capacity to impeach the president, and the president does not have the power to impeach Congress, he says.

Raskin saves himself from acting too much like a legislator with a camera on him, however, and he relatively quickly returns to the litigation at hand. He reminds the Senate that because it voted on Tuesday that it has jurisdiction to review the case, the trial is now solely about the facts presented. And he poses several key factual questions for the defense, given Trump’s refusal to testify:

  • Why did President Trump not tell his supporters to stop the attack on the Capitol as soon as he learned of it?
  • Why did he do nothing to stop the attack for at least two hours after the attack began?
  • As the commander in chief, why did he do nothing to send help to law enforcement for at least two hours?
  • Why did he not at any point on Jan. 6 condemn the violent insurrection?
  • If a president did invite a violent insurrection against his government, hypothetically, would that be a high crime and misdemeanor?

After a brief riff on Thomas Paine’s “Common Sense,” the managers are done.

It has been a remarkable presentation, and it raises serious questions about how the president’s counsel, starting at noon today, will seek to defend their client.

At one level, this question does not matter. If Bruce Castor and David Schoen danced naked in the Senate well and offered a defense composed entirely of obscenities in ancient Greek, they would still prevail—there not being 17 Republican votes to convict the former president. Trump contended the election was “rigged.” He was wrong. But this trial actually is rigged, and it is rigged in his favor.

At another level, however, the question matters a lot. The managers have put a deadly serious case on the table here. They have shown at great length that the president personally bears great responsibility for creating the conditions for the attack, for sparking the attack itself, for delighting in it and not seeking to tamp things down, and for abandoning his responsibility as commander in chief to respond to an assault on a coordinate branch of government. If one is going to ask Republican senators to avert their gaze from these well-justified claims and vote to acquit, one needs to give them an off-ramp. Otherwise, one is asking them to vote for the proposition that this behavior is okay—at least for Trump and presumably for others too.

One possibility is that Trump’s lawyers will put senators in exactly that position—that there will be no fig leaf. There will be no talking point available to them. This was the position created by first day’s arguments by the president’s legal team.

I expect, however, that this time, the president’s lawyers will be at least a little bit more prepared and that they will try to offer a defense based on some combination of the following themes:

First, they will argue that the Senate trial is illegitimate because Trump is no longer in office. Raskin put them on notice both at the beginning and at the end of the managers’ presentation that he considers this argument off the table, resolved by the Senate’s vote of Tuesday that it has jurisdiction over the case. So if the president’s lawyers try to relitigate this issue, we might actually see an objection on grounds that this issue is decided. If I were Raskin, I would be aggressive on this point. The jurisdictional point is the president’s strongest argument, the only one on which reasonable people may disagree. It is also a decided matter for purposes of this trial. So preventing it from resurfacing would deprive the president’s legal team of its most colorable talking point and, more importantly, deprive them of the ability to use that talking point to avoid talking about the facts.

Second, they will argue that the president merely gave a speech and that this speech did not meet the constitutional test for incitement. This argument is frivolous in the context of an impeachment trial. It is wrong both factually and legally. But it has the benefit of being presentable in jargon that sounds legally impressive. “Incitement” in the First Amendment context is, after all, a term of art, one that references real case law that lawyers can quote and cite with important-sounding words. It is black-letter law under Brandenburg v. Ohio, which is controlling precedent here that a political speech cannot be incitement under the First Amendment unless it has a propensity to induce—and is intended to result in—“imminent lawless action.” Harumph harumph!

Third, they will argue that the degree of preparation some of the rioters engaged in shows that they were not incited by the president’s words on Jan. 6 but were intending the violence all along. This is actually the president’s best factual defense, and if his lawyers are smart, they will spend most of their time on it. That is, they will build a counter-narrative around it.

Fourth, the tu quoque defense is likely to play a big role today. Expect a lot of video of other riots and expect to hear from every Democrat who has ever failed to condemn any rioter. This defense is actually worthless, but it’s spiritually important, I suspect, to the former president and certainly to the media ecosystem that supports him. This is, after all, a group of people who believe they are on the side of law enforcement against rioters. They are people who don’t like it when Black people protest against police violence and are keen to point out any time such protests become violent. It is jarring for them to be accused of being a party that condones rioting, much less that strategically uses riots and mob violence for political ends. So it’s a comfortable defense to argue, even frivolously: “No you support violence!” For this reason, I suspect that this defense will play a larger role than it should on the merits.

One matter I will be following closely as the former president’s lawyers present their arguments is whether they event attempt to answer any of the questions Raskin posed them.

Morning Briefing: February 12, 2021

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Day 2: February 10, 2021

The House impeachment managers begin their case with lead manager Jamie Raskin emphasizing that the previous day’s Senate vote on jurisdiction resolves that question. The trial is no longer about the Senate’s authority. It’s about what the president did. Was he a bystander to the events of Jan. 6, or was he the instigator of the events of that day? Raskin promises to show that Trump “was no bystander.” Rather, he says, the former president “surrendered his role as commander in chief and became inciter in chief of a violent insurrection.”

What follows, because of the weird structure of the Senate trial, is part opening argument, in which Raskin—and after him and in more detail, Joe Neguse—tells what the managers are going to prove. It’s also partly a closing argument. The 16 hours allotted to the House managers between Feb. 10 and Feb. 11, after all, may be the prosecution’s last opportunity to frame the president’s conduct before the Senate. And it’s also the presentation of the House’s case in chief. There seems to be a working presumption, though we don’t know it yet for sure, that there will not be a presentation of witnesses or any kind of systematic effort to expand the public record. So these arguments are not just a prelude to the case or a summation of it. They are the case—or, at least, the managers are proceeding on the theory that they might be the only case they get to present.

Wearing this particular ball and chain creates problems for the managers’ case, which by the nature of the exercise can be nothing more than eight hours per day of speechifying that is broadly confined to the public record. Yes, the managers introduce new tidbits of information here and there, mostly in form of not-yet-seen video or audio footage and detail about how close the rioters came to members of the House and the Senate and to then-Vice President Mike Pence. But, by and large, the inability to elicit testimony limits the presentation to what is already known.

It also creates factual disputes. At one point near the end of the day, Rep. David Cicilline, D-R.I., references a phone call former President Trump made to Sen. Mike Lee, R-Utah, during the riot. No sooner had the managers finished their presentation for the day than Lee moved to have the references to his comments stricken from the record, saying he had never said the things Cicilline attributed to him. Cicilline, as Raskin explained, had faithfully described the contents of press reporting. But since nothing is under oath, the record is necessarily tentative in the face of challenge. In the end, 16 hours of discussion of personal experience, press reporting, presidential statements and tweets, video footage, and other material in the public record can get the managers only so far.

Yet while form does not follow substance here, and the managers are genuinely constrained by the hand the Senate’s resolution has dealt them, they do a truly remarkable job of presenting their case. They can only give a series of speeches, but they deliver an exceedingly well-crafted and effective series of speeches. The presentation is organized. It is crisp. It is narratively logical and cogent. And it is devastating. Some of the individual presentations, particularly that of Virgin Islands Delegate Stacey Plaskett, are simply riveting. But even the weaker links in the chain are workmanlike and effective. Cumulatively, the overall presentation is one of the most powerful pieces of advocacy I have ever seen on the floor of the Senate—which flatters itself that it is the world’s greatest deliberative body but normally hosts a great deal of dreck.

No, it won’t move all 17 of the Republican senators it would take to convict Trump; it may not move any of them. But it must be hard to be a senator bent on voting to acquit having to watch this sustained display of Trump’s obvious culpability for what happened on Jan. 6. As Sen. Lisa Murkowski, R-Alaska, puts it afterward, “The evidence that has been presented thus far is pretty damning.”

Following Raskin and Neguse’s introduction and overview, the managers go systematically through what they regard as the elements of their case, which Neguse describes as having three broad components: Trump’s provocation of the riot, the attack itself and the harm caused by it.

Joaquin Castro of Texas begins by arguing that Trump’s efforts to discredit the results of the election long predated the election itself. For months before the voting, Castro argues, Trump had been saying that the only way he could lose would be if the election were rigged. He refused to commit himself to the peaceful transition of power. And his campaign to delegitimize the actual results began immediately on election night. Castro’s point is that the riot of Jan. 6 was not a spontaneous or isolated thing. And Trump’s speech that precipitated it was not a kind of momentary expression of rage. It was, rather, the culmination of a premeditated, unprecedented attempt to undermine the democratic transition of power—an attempt that had begun months earlier.

Eric Swalwell of California next details Trump’s copious lies about “election fraud” and the harassment of state election officials by his supporters that followed in the election’s wake. He notes that these efforts did not cease after courts rejected the claims and that Trump spent tens of millions of dollars to advertise claims of “fraud.” Trump tweeted repeatedly, calling people to Washington for the Jan. 6 protest. And he tweeted in iterative dialogue with those who organized the protest for that day. The point is that Trump not only established the lie on which the whole protest was organized—that the election had been stolen from him by fraud—but also promoted that lie relentlessly with advertising and public statements and specifically encouraged people to come to Washington to “stop the steal.”

Madeleine Dean of Pennsylvania next describes Trump’s efforts to overturn the election results. These only start, she argues, with the 62 lawsuits he or his supporters filed in courts around the country. Courts rejected all but one of them, Dean argues, and that one did not affect the tally of votes. She cites the numerous incidents in which Trump called election officials and pressured them not to certify the results of the election in their states, focusing in particular on Trump’s pressure on Georgia officials and the threats of violence against them that resulted. This culminated, she argues, in Trump’s call to Georgia Secretary of State Brad Raffensperger—who presciently recorded it—in which the president leaned on Raffensperger to “find” the precise number of votes Trump needed to prevail in the state. Dean’s point is that Trump did not simply urge people to protest peacefully. He was simultaneously pressuring, publicly and privately, state officials to violate their oaths of office and overturn results of the election in his favor. And as he was doing so, California Rep. Ted Lieu continues, Trump was also attacking Republican officials who didn’t seem keen to violate the law by complying. Lieu reminds senators of the president’s tweets about then-Senate Majority Leader Mitch McConnell, about his dismissal of Attorney General William Barr following Barr’s insistence that the fraud claims were “bullshit,” about his efforts to get the Justice Department to act on those claims, and about his efforts to get Vice President Pence to unilaterally reject electoral votes from key states. But eventually, Lieu argues, Trump just ran out of nonviolent options for attacking the election result.

Plaskett now tacks back to talk about Trump’s strategic encouragement of violence over the period leading up to Jan. 6. On a number of occasions, she notes, Trump had been confronted with the violence of his supporters and had coyly winked at it. Most infamously, in one of his debates with Joe Biden, when asked to denounce the Proud Boys and tell them to stand down, he had told them instead to “stand back and stand by,” which they had quickly made into a slogan. But this was not the only incident.

When Trump supporters tried to run a bus full of Biden campaign workers off the road in Texas, Trump had tweeted video of the episode with apparent glee and praised them as “patriots.” And the Jan. 6 protest was initially not permitted to march to the Capitol, she says, until Trump got involved. The Trump media operation carefully monitored the web, she claims, so it’s inconceivable that they were not aware of the countless calls to “storm the Capitol” in the run-up to Jan. 6, calls that were in any event widely discussed in mainstream media too. Some of the same people who were involved in the earlier incidents of violence, she points out, were also involved in Jan. 6. There is simply no way the president did not understand the potential for violence at the rally at which he planned to speak. That was the specific context in which Trump told the rally to march to the Capitol and “fight like hell.”

Dean now focuses on the specific speech Trump gave and how it amplified the themes he had been pounding for months. The election was stolen. This was the last chance to stop the steal. So let’s go to the Capitol to fight. She shows videos of people at the rally taking up the call and starting to move toward the Capitol from the Ellipse.

In what turns out to be the molten core of the presentation, Plaskett now walks through the attack itself. It is hard to do this presentation justice in summary as it depends pervasively on video that is often difficult to watch. But in brief, she starts with Trump’s insistence that Pence could reverse the tide and Pence’s refusal to try to do so. The crowd is furious with Pence. She plays audio of Capitol Police radio as officers are under assault. She walks through the actual breach of the Capitol itself. She shows Pence being hustled out of the chamber. She shows how Officer Eugene Goodman kept Sen. Mitt Romney, R-Utah, away from the rioters and thus may have saved his life. She shows video of the mob seeming quite like a lynch mob in its desire to hang Pence. She cites members of the mob confirming that they were intending to kill people, including the vice president, if they could get their hands of them. And she walks through the efforts to get at House Speaker Nancy Pelosi and the genuine danger that her staff faced barricaded and hidden in her offices as her main office was ransacked. Again, she highlights that the mob here clearly had murderous intent. If you watch no other part of the day’s proceedings, Plaskett’s presentation is both enraging and brilliant and very worth your time.

Swalwell then focuses on what was going on in the House chamber. He plays more audio of Capitol Police. He shows a series of videos of the evacuation of the chamber and the efforts by the mob to penetrate it. He shows video of the killing of Ashli Babbitt as she tried to get into the chamber. He shows video of the mob on the Senate side too.

All of which sets up the understated but quite potent presentation by Cicilline about what Trump was doing while all of this was happening. He notes that on Jan. 6 Trump did not condemn the violence once. Nor did he act to stop it. Rather, he abandoned his duty as commander in chief in the face of an attack on the government because he actually supported the attack. Cicilline goes over Trump’s tweeted video, in which he praised the rioters and further emphasized the lie that the election had been stolen. He also emphasizes Trump’s tweet stating that storming the Capitol is what happens when an election is stolen. He notes reports that Trump seemed delighted by the attack and couldn’t understand why those around him didn’t share his enthusiasm. And he notes as well that Trump’s single focus in that period was in pressing his agenda that the counting of the electoral votes be delayed. This, and not to check on their safety or to send aid, is why he called Senator Lee that day. And it’s why his personal lawyer left a voicemail message for Lee as well.

Castro rounds out the presentation by continuing this theme. Even as the crowd is changing “hang Mike Pence,” Trump was still attacking Pence. The mob, Castro notes, was at one time only 60 feet from where Pence was holed up. Trump did nothing to stop the mob even as allies and supporters publicly and privately begged him to say something. Even as it became clear that Capitol Police officers had been hurt, Trump did nothing and did not send help. And when he finally did speak, in the tweeted video, he praised the protesters—saying he loved them and that they were “very special.” Castro concludes by saying he is proud to be in Congress with a group of people who honored their oaths. And he asks whether anyone can say that Trump did the same.

The managers’ presentation left me with two major questions.

The first is what on Earth the managers intend to do in their second day of arguments. This was, after all, only the first half of their allotted time. They have a repeat performance starting at noon today—at least if they mean to use all of their time. Yet the presentation on their first day of arguments seems entirely comprehensive. While they scratched up against the limits of what the record will let them show several times, more argument time will not address this deficiency in their case. Within the bounds of the record currently available, what else is there for them to say?

There’s a risk in trying to say too much. So far, the managers have admirably avoided too much repetition, though there has been some, and the presentation has been immensely powerful as a result. I actually wonder if they would do well to use relatively little of their remaining time by way of leaving senators with the powerful impression of the first day.

The second question is perhaps the more important one: How does the president’s defense respond? This would be a hard question even for an excellent legal team. But the president’s crew of second-raters is not the ideal group to formulate the optimal defense. It’s a genuinely hard problem they face, and their first day’s arguments don’t give confidence that they are up to it. Focusing on the First Amendment, in addition to being a legally trivial point, is utterly unresponsive to the gravity of the case the managers are presenting. The president’s lawyers are surely not planning to substantively defend the former president’s conduct. And they can’t—as Bill Clinton’s lawyers could do—argue that the matter is too inconsequential to warrant action.

So how should Trump’s lawyers defend their client? And perhaps more importantly, how will they do so?

Morning Briefing: February 11, 2021

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Day 1: February 9, 2021

By all rights, the first day of Donald Trump’s second impeachment trial should have been dull. The Senate began by agreeing, on an 89-11 vote, to devote four hours of opening argument to a legal question that does not warrant four hours of argument: whether the Senate has jurisdiction over the trial of a former official at all.

It’s not that the question is an uninteresting one or that there’s no reasonable argument to be had over it. There are serious people on both sides of the matter. It is, however, a relatively simple question, involving a limited amount of textual and structural argument alongside a smattering of history and precedent. Devoting multiple hours to debating it should have been a recipe for a soporific afternoon.

Yet the trial’s opening day was not a dry, repetitious, cut-rate seminar on the jurisdiction of the Senate when sitting as a court of impeachment. It was actually riveting.

It was riveting initially because the House impeachment managers, led by Rep. Jamie Raskin, D-Md., and with an especially impressive performance by Rep. Joe Neguse, D-Colo., put on an exceptional presentation—one that skillfully used the jurisdictional dispute at issue to talk about the magnitude of Trump’s wrongdoing and the resulting stakes in the Senate trial. And it was riveting later in the afternoon because the former president’s legal team put on a true train-wreck of an argument, one that highlighted both the rather obvious lack of preparation of a team that had been on the job for only a few days and the relative weakness of that team’s substantive position.

The result was that on the one side was Raskin and Neguse’s careful walk through the history of the impeachment clauses, the intermingling of this history with compelling video of the events of Jan. 6, argument about Trump’s conduct on and around that day, and Raskin’s moving story of having his family at the Capitol during the insurrection in the midst of mourning the death of his son. And on the other side was Bruce Castor’s acid trip of a meander around subjects as diverse as his thoughts on the Senate, the role and personality of senators, the quality of the managers’ presentation, and—only very occasionally—the merits of the case at hand; and there was David Schoen’s angry yelling about due process and, only every now and then, jurisdiction.

All of this appears to have moved exactly one senator’s vote.

As recently as Jan. 26, the Senate faced a substantively similar motion to dismiss the article of impeachment on grounds that the Senate had no power to hear it—Trump no longer being in office. At that time, the Senate voted 55-45 to table the motion. On Tuesday, after the four hours of lopsided argument, the Senate voted 56-44 that it had jurisdiction to hear the case. Only Sen. Bill Cassidy, R-La., voted differently the second time from the first. It’s not clear, at least not to me, how a trial unconstitutional a couple of weeks ago became constitutional today for him, but it clearly had something to do with the quality of the advocacy he heard. As CNN reported later:

"House managers were focused, they were organized," and "made a compelling argument," Cassidy said after the vote. In contrast, he added, "President Trump's team were disorganized. They did everything they could but to talk about the question at hand and when they talked about it, they kind of glided over, almost as if they were embarrassed of their arguments."

The fact that such a dramatic disparity moved so few suggests that there is not a lot of elasticity in the Senate on impeachment. All 50 Senate Democrats seem likely votes to convict, but the group of potentially winnable Republicans still seems small. Even with Cassidy, there are only six who are not currently contending that the entire proceeding is unconstitutional, and it’s a little hard to imagine any senator voting to convict Trump in a trial he or she doesn’t believe the Senate has the authority to hold in the first place.

This lack of elasticity is not all that surprising—given the Republican unity in the face of evidence during the last impeachment trial, given the Jan. 26 vote, and given the general atmosphere of polarization. It is, however, sobering for those who were hoping that the dam was finally breaking on Trump’s hold on his party. If Tuesday didn’t move more senators toward greater openness to convicting Trump, it’s hard to imagine that more days of hammering them with the facts of the former president’s conduct and its relationship to the events of Jan. 6 will do so.

Indeed, while the notional issue at hand on Tuesday was jurisdictional, neither side hewed closely to the specific legal question. The president’s lawyers didn’t hew closely to any question. And the House managers had plenty of time to pound the table about what Trump did, cramming this into the jurisdictional argument using the following logic: (1) By contending that the Senate has no jurisdiction to try former officials, Trump’s legal team is seeking a “January exception” to impeachment, under which a president can do just about anything before leaving office without fear of impeachment; (2) such an exception would allow a president to refuse to honor the results of an election and even use violence to hold power; (3) this is exactly what Trump did, and let us spell this out for you at great length by talking about the merits of the case; and hence (4) there has to be jurisdiction over former officials. It’s a neat argument, one that allowed an elegant hybrid of the jurisdictional point at issue and the merits of the case that constantly reminded senators and the public of the incredibly damaging facts at the heart of this case. It also kept the presentation interesting by preventing it ever from becoming a dry-as-dust argument about the Senate’s power. The fact that it didn’t swing more votes strongly suggests that there aren’t that many more votes to swing.

The resolution approved just before the trial began, which authorized procedures for the trial, seems like a tacit admission of this reality. While it leaves open the possibility of calling witnesses, its operative assumption seems to be that, once again, the Senate’s idea of a “trial” will a sequenced series of arguments by the two sides, followed by an opportunity for senators to ask questions of the advocates. This was largely the way the Clinton impeachment trial ran, and it was reasonably well suited to that case, in which Ken Starr had amassed a more-than-complete record. It was also the mode of the first Trump trial, for which it was entirely ill suited, the record the House having amassed having been far from complete in that case. It’s a frustrating model for this trial for similar reasons. While people keep insisting that the public record is overwhelming and that witnesses are thus unnecessary, the public record is decidedly not complete. If senators vote without hearing from witnesses, they will, for example, vote without any firsthand account of what the former president did during the crucial hours between giving his speech and when he tweeted and made public statements early that evening. There are other gaps too, and while filling them is unlikely to convince more senators to vote to convict, it seems quite wrong to let them vote to acquit Trump without forcing them to stare the full record of his conduct in the face.

The question of witnesses remains a little opaque because the managers have not forsworn attempting to call them, and they did talk Tuesday at various times about presenting their case and presenting evidence—something that seems a little more than mere argument with video about matters already in the public domain.

That managers may be playing with a two-pronged fork here, preparing to begin their case and perhaps end it with only the 16 hours of arguments the resolution gives them—but also maintaining ambiguity about whether they will seek witnesses and leaving that decision to later. This gives them the opportunity to see how the initial phase has gone and whether there is support among senators for calling witnesses and seeing a fuller presentation of the evidence. But it seems pretty clear even at this stage that a complete airing of the case is not in the cards.

Here, the sticking point may be a weird marriage of convenience between senators resistant to witnesses for very different reasons. For Republican senators, the whole trial is embarrassing; it forces them to take one bad vote after another, to wallow in Trump’s misconduct, and to live with the divisions within their own party. The sooner it is done, the better. For Democratic senators, by contrast, the trial is of only limited utility if there is no chance of flipping 17 Republican colleagues. Democrats, after all, have competing priorities right now. They want to confirm cabinet and subcabinet nominees, and they have legislation they want to move too. Using up a lot of Senate energy to vindicate the principle that an impeachment trial is supposed to be, well, an actual trial is not especially high on the priority list for some of them. Each side thus has its own reasons for wanting to “move on.”

But while two bad reasons don’t together make up a good reason for cutting the impeachment trial short after arguments, they do offer a basis for reasonable House managers to be cautious about what they can expect to get done before an impatient Senate.

And so, the Senate, having determined that it has the authority to hear Trump II, now proceeds to listen to the arguments—and to figure out whether those arguments will morph into the presentation of the actual case against Trump or whether it’s more convenient not to bother.

Morning Briefing: February 10, 2021

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