House impeachment managers are starting Donald Trump’s second impeachment trial with the odds stacked against them. The jury has already indicated how it will vote, with 45 Republican Senators suggesting that the charge of inciting insurrection should have been dismissed before trial. To pull out a win, House impeachment managers will need to take some risks and shake things up in this week’s impeachment trial.
Any good trial lawyer knows that when you’re behind, you have to change the dynamic of the trial. The House managers’ recent call for Trump to testify is an example of them doing just that. His unpredictable and often self-incriminating statements would create a bonanza of damaging testimony for the prosecution, which is why his team has already made clear Trump won’t appear voluntarily.
House managers can ask the Senate to subpoena Trump, although it’s unlikely they would be able to enforce that subpoena without significantly delaying the trial. By highlighting Trump’s refusal to testify, the managers can argue that Trump knows his words would incriminate him and remind senators that Trump’s lawyers are not defending his words and actions on the merits.
Trump would be the ultimate game-changing witness, but he’s not the only one who could help overcome the baked-in political pressures and pre-judgments that Republicans will bring to the trial. Yes, calling witnesses might extend the proceedings by days or even weeks, as some Democrats have openly feared, but to not seek that advantage ensures the trial will play out as expected, with Senate Republicans voting in sufficient numbers to acquit Trump.
In its response to the article of impeachment, Trump’s team focused on two basic legal arguments. They argue that his speech to the crowd of thousands of supporters, urging them to march on the Capitol and “fight,” was protected by the First Amendment. They also claim that he cannot stand trial because he is no longer president and the Senate has no jurisdiction over private citizens.
Defense attorneys who are forced to defend the indefensible will often try to distract the jury from their client’s misdeeds by focusing on minutiae or sideshows. After all, every minute jurors are focused on arcane legal questions or hair splitting is a minute they aren’t considering the defendant’s conduct.
In a criminal trial, Trump’s team wouldn’t be able to make those arguments directly to the jury. Arguments about whether the charges are legal or constitutional are raised with the judge in a motion before the trial, because the judge decides the law. The jury’s job is to decide the facts. For all practical purposes, Trump’s legal arguments only matter to the extent that they influence senators. Under existing Supreme Court precedent, courts will not review what the Senate decides to do during the impeachment trial. In an impeachment trial, the senators are the judges and the jurors.
Jurors in a criminal trial are carefully screened to avoid bias. U.S. Senators are anything but unbiased, and many of them will undoubtedly consider the political impact of their vote. It’s important for the managers to tell a compelling story from start to finish. The managers will need to prove, in this case, that Trump’s words weren’t his usual word salad but were actually part of a plan to incite an insurrection.
Proving someone’s intent is difficult, but prosecutors do it in nearly all white-collar criminal trials. Because we don’t have a device that can see inside a defendant’s mind, prosecutors present evidence of all the facts and circumstances surrounding the case and ask the jury to infer the defendant’s intent from those facts. Here, that would mean presenting evidence of Trump’s scheme to overturn the results of the election, which the House included in the article of impeachment.
If Trump had quickly conceded the election and did not engage in a scheme to overturn the result, the words he spoke on Jan. 6 would not have taken on the same meaning. The angry crowd would not have assembled, much less proceeded to attack the Capitol after the speech. The insurrection was a direct result of Trump’s scheme. The “Big Lie” he told beginning immediately after the election and his subsequent efforts to abuse his power to overturn the result gave his words the power to spark an insurrection.
There’s no question the managers will show video of the crowd listening and reacting to Trump’s speech, and perhaps the strongest evidence they have is video of the insurrectionists telling Capitol police officers that they were invited to the Capitol by Trump and were following his instructions. Some of the insurrectionists were captured on video stating that they thought Trump was there with the mob at the Capitol, echoing words Trump said earlier that suggested he would join them.
But the video alone won’t be enough to secure Trump’s conviction. If it was, the attempt to consider a motion to dismiss the article of impeachment wouldn’t have obtained 45 Republican votes. So to change the dynamic of the trial, House Managers will need to call witnesses. They need 17 Republican Senators to vote to convict, and it looks like they have only five.
At a normal trial in a courtroom, most of the evidence would come in through witness testimony. But Daniel Goldman, who was lead counsel for Trump’s first impeachment, recently told me in an interview that he believes even Democratic senators do not want to call witnesses. Calling witnesses would be time-consuming and could ensure that the trial will drag on for weeks. And if witnesses refused to appear, it could take weeks longer to enforce a subpoena.
In the first impeachment trial, House Democrats chose not to call some “firsthand witnesses” such as former national security adviser John Bolton because they refused to testify voluntarily. Democrats feared there would be a lengthy court battle to enforce any subpoenas and that would delay the trial and interfere with the primary election calendar. Democrats in the Senate tried to call Bolton as a witness once he made clear he would appear before the Senate, but the GOP majority blocked that effort. In the end, that missing testimony gave GOP senators an excuse not to convict.
But even a handful of witnesses who are willing to testify against Trump could make a huge difference. For example, Georgia Secretary of State Brad Raffensperger is a Republican who Trump threatened with a criminal investigation because he was unwilling to break the law and overturn his state’s result by helping Trump “find 11,780 votes.” Raffensperger recorded audio of a call with Trump, which managers could play, but that tape would not be as compelling as in-person testimony. Republican senators might identify with a Republican officeholder who was put in a horrible situation by Trump.
Testimony from a victim of the attack could be even more powerful. For example, during her recent Instagram Live broadcast, Congresswoman Alexandria Ocasio-Cortez (D-N.Y.) told a gripping story of the fear she felt during the assault on the Capitol. Why not have one of the up to 140 injured Capitol police officers tell a similar story?
Generally speaking, jurors don’t decide to convict a defendant based on intellectual arguments and logical deduction. If Republican senators are making intellectual calculations, they might be calculating the impact of their vote on donors and constituents back home. So House managers need to hit them in their gut, not their head. A couple of carefully chosen witnesses could do that.
More important, House managers have a second audience—the American public. Republicans have already tried to change the narrative, and Trump has not been held accountable for his attempt to subvert our democracy. The House Republican leader recently flew to Florida to pay his respects to Trump, and Trump acolyte Marjorie Taylor Greene survived a Republican caucus vote after attention was drawn to her advocacy of conspiracy theories and her use of threatening language.
Given that Trumpism has survived the Trump presidency, telling the full story of Trump’s scheme to overturn the election in as compelling of a fashion as possible is important to ensure that the American people understand exactly what he did. If they do so, House managers will succeed regardless of how the Senate votes.
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