Impeachment Case Aims to Marshal Outrage of
Capitol Attack Against Trump
Armed with lessons from the last impeachment trial of
Donald J. Trump, prosecutors plan a shorter, video-heavy presentation to
confront Republicans with the fury they felt around the Capitol riot.
Nicholas
Fandos
By Nicholas
Fandos
Feb. 7,
2021, 3:46 p.m. ET
WASHINGTON
— When the House impeachment managers prosecute former President Donald J.
Trump this week for inciting the Capitol attack, they plan to mount a
fast-paced and cinematic case aimed at rekindling the outrage lawmakers
experienced themselves on Jan. 6, in arguments delivered from the scene of the
invasion.
Armed with
lessons from the first impeachment trial of Mr. Trump, when even Democratic
senators complained the arguments were repetitive and sometimes sanctimonious,
the prosecutors managing his second are prepared to complete the proceeding in
as little as a week, forgo distracting fights over witnesses and rely more
heavily on video, according to a half-dozen people working on the case.
It would
take 17 Republicans joining with every Democrat to find Mr. Trump guilty,
making conviction unlikely. But when the trial opens on Tuesday, the prosectors
will try to force senators who lived through the deadly rampage as they met to
formalize President Biden’s election victory to reckon with the totality of Mr.
Trump’s monthslong drive to overturn the election and his failure to call off
the assault they argue it provoked.
“The story
of the president’s actions is both riveting and horrifying,” Representative
Jamie Raskin, Democrat of Maryland and the lead prosecutor, said in an
interview. “We think that every American should be aware of what happened —
that the reason he was impeached by the House and the reason he should be
convicted and disqualified from holding future federal office is to make sure
that such an attack on our democracy and Constitution never happens again.”
In making
Mr. Trump the first American president to be impeached twice, Democrats have
essentially given themselves an unprecedented do-over. When Representative Adam
B. Schiff, Democrat of California, was preparing to prosecute Mr. Trump the
first time for a pressure campaign on Ukraine, he read the 605-page record of
President Bill Clinton’s 1999 impeachment trial cover to cover, sending aides
as many as 20 dispatches a day as he sought to modernize a proceeding that had
happened only twice before.
This time,
a new group of nine Democratic managers need reach back only a year to study
the lessons of Mr. Schiff’s prosecution: Don’t antagonize Republicans, use lots
and lots of video and, above all, make succinct arguments to avoid lulling the
jury of lawmakers into boredom or distraction.
Mr. Trump’s
lawyers have indicated that they once again intend to mount a largely technical
defense, contending that the Senate “lacks jurisdiction” to judge a former
president at all after he has left office because the Constitution does not
explicitly say it can. Though many legal scholars and a majority of the Senate
disagree, Republicans have flocked to the argument in droves as a justification
for dismissing the case without weighing in on Mr. Trump’s conduct.
But the
lawyers, Bruce L. Castor Jr. and David Schoen, also plan to deny that Mr.
Trump’s incited the violence at all or intended to interfere with Congress’s
formalizing of Mr. Biden’s victory, asserting that his baseless claims that the
election was “stolen” are protected by the First Amendment. And Mr. Castor told
Fox News that he, too, would rely on video, possibly of unrest in American
cities led by Democrats.
The
managers will try to rebut them as much with constitutional arguments as an
overwhelming compendium of evidence. Mr. Raskin’s team has spent dozens of
hours culling a deep trove of videos captured by the mob, Mr. Trump’s own
unvarnished words and criminal pleas from rioters who said they acted at the
former president’s behest.
The primary
source material may replace live testimony. Trying to call new witnesses has
been the subject of an extended debate by the managers, whose evidentiary
record has several holes that White House or military officials could
conceivably fill. At the last trial, Democrats made an unsuccessful push for
witnesses a centerpiece of their case, but this time, many in the party say
they are unnecessary to prove the charge and would simply cost Mr. Biden
precious time to move his agenda without changing the outcome.
“It’s not
that there should not be witnesses; it’s just the practical realities of where
we are with a former president,” said Daniel S. Goldman, a former House lawyer
who worked on Mr. Trump’s first impeachment. “This is also something that we
learned from the last trial: This is a political animal, and these witnesses
are not going to move the needle.”
Mr. Raskin
and other managers declined to speak about strategy, but current and former
officials familiar with the confidential preparations agreed to discuss them
anonymously. The prosecutors’ almost complete silence in the run-up to the
trial has been another departure from the strategy of Mr. Trump’s first
impeachment, when Democrats set up a sizable communications war room in the
Capitol and saturated the cable television airwaves in an all-out battle
against Mr. Trump in the court of public opinion.
They have
largely left it to trusted allies like Mr. Schiff and Speaker Nancy Pelosi to
publicly discuss their case and bat back criticism about why the House is
pressing its case even now that Mr. Trump is out of office.
“If we were
not to follow up with this, we might as well remove any penalty from the
Constitution of impeachment — just take it out,” Ms. Pelosi told reporters who
questioned why Democrats would consume so much of Congress’s time with a former
president.
Key
questions about the scope and shape of the trial remain unsettled. Senators
spent the weekend haggling over the precise structure and rules of the
proceeding, the first time in American history a former president will be put
on trial.
Prosecutors
and Mr. Trump’s defense lawyers expected to have at least 12 hours each to make
their case. Mr. Raskin, a former constitutional law professor, has been
coaching his colleagues in daily meetings to aggressively winnow down their
arguments, cling to narrative where possible and integrate them with the visual
aids they plan to display on TVs in the Senate chamber and on screens across
the country.
Behind the
scenes, Democrats are relying on many of the same lawyers and aides who helped
assemble the 2020 case, including Susanne Sachsman Grooms from the House
Oversight and Reform Committee, and Aaron Hiller, Arya Hariharan and Amy Rutkin
from the Judiciary Committee. The House also temporarily called back Barry H.
Berke, a seasoned New York defense lawyer, to serve as chief counsel and Joshua
Matz, a constitutional expert.
Mr. Schiff
said his team had tried to produce an “HBO mini-series” featuring clips of
witness testimony to bring to life the esoteric plot about Mr. Trump’s pressure
campaign on Ukraine. Mr. Raskin’s may appear more like a blockbuster action
film.
“The more
you document all the tragic events leading up to that day and the president’s
misconduct on that day and the president’s reaction while people were being attacked
that day, the more and more difficult you make it for any senator to hide
behind those false constitutional fig leaves,” said Mr. Schiff, who has
informally advised the managers.
To assemble
the presentation, Mr. Raskin’s team has turned to the same outside firm that
helped put together Mr. Schiff’s multimedia display. But Mr. Raskin is working
with vastly richer material to tell a monthslong story of how he and his
colleagues believe Mr. Trump seeded, gathered and provoked a mob to try to
overturn his defeat.
There are
clips and tweets of Mr. Trump from last summer, warning he would only lose if
the election was “rigged” against him; clips and tweets of him claiming victory
after his loss; and clips and tweets of state officials coming to the White House
as he sought to “stop the steal.” There is audio of a call in which Mr. Trump
pressured Georgia’s secretary of state to “find” the votes needed to reverse
Mr. Biden’s victory there; as well as presidential tweets and accounts by
sympathetic lawmakers who say that once those efforts failed, Mr. Trump
decisively turned his attention to the Jan. 6 meeting of Congress for one last
stand.
At the
center is footage of Mr. Trump, speaking outside the White House hours before
the mob overtook the police and invaded the Capitol building. The managers’
pretrial brief suggests they are planning to juxtapose footage of Mr. Trump
urging his supporters to “fight like hell” and march to the Capitol and
confront Congress with videos posted from members of the crowd who can be heard
processing his words in real time.
“Even with
this trial, where senators themselves were witnesses, it’s very important to
tell the whole story,” Mr. Schiff said. “This is not about a single day; it is
about a course of conduct by a president to use his office to interfere with
the peaceful transfer of power.”
But the
proximity could also create complications. Several people familiar with the
preparations said the managers were wary of saying anything that might
implicate Republican lawmakers who echoed or entertained the president’s
baseless claims of election fraud. To have any chance of making an effective
case, the managers believe, they must make clear it is Mr. Trump who is on
trial, not his party.
Nicholas
Fandos is a national reporter based in Washington. He has covered Congress
since 2017 and is part of a team that chronicled investigations by the Justice
Department and Congress into President Trump and his administration. @npfandos
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