David Smith in WashingtonSun, 7 February 2021, 7:00 am
It might be tempting to call it the trial of the century but it is just as likely to invoke a sense of deja vu. This week Donald Trump faces an impeachment trial in the US Senate. Yes, another one.
Trump stands accused of inciting an insurrection when he urged supporters to “fight” his election defeat before they stormed the US Capitol in Washington on 6 January, clashed with police and left five people dead.
In some ways it will be a replay of his first impeachment trial a year ago. Again Trump himself will not be present and again the outcome, given his subjugation of the Republican party, has an air of inevitability – acquittal.
But there are crucial differences the second time around. Trump is now a former president, the first to be tried by the Senate after leaving office. For this reason the sessions will be presided over not by John Roberts, the chief justice of the supreme court, but 80-year-old Patrick Leahy, the longest-serving Democratic senator.
Whereas Trump offered running commentary on the first trial via Twitter, he has now been banned from the platform for incendiary statements. And whereas his first trial, on charges of abuse of power and obstructing Congress, turned on whether phone records and paper trails showed that he pressured the president of Ukraine to investigate Joe Biden, the sequel promises to be more raw and visceral.
Proceedings will unfold at the scene of the crime: the hallowed Senate chamber that was invaded by rioters including white supremacist groups. The nine Democratic impeachment managers are expected to present new video footage and eyewitness testimony that will vividly evoke the terror felt by members of Congress as they barricaded themselves inside offices and feared for their lives.
“If the Democrats do what’s being reported and present the visual evidence, it will be nothing a Senate trial has ever seen before,” said Charlie Sykes, founder and editor-at-large of the Bulwark website. “It’s going to be a graphic narrative of the build-up and the attack and the violence and the scope of the threat and it’s going to be very difficult to minimise that, especially because every one of those senators was a witness to it in some way.
“So I actually think that it’s going to be more powerful than some people expect. The result is preordained – I don’t have any illusions about that – but, because the evidence has been mounting over the last several weeks, I am expecting it to be dramatic.”
There have only been four presidential impeachments in American history and Trump owns half of them: his second came last month in a vote by the House of Representatives, with all Democrats and 10 Republicans charging him with inciting violence against the US government.
That set the stage for Tuesday’s Senate trial where legal briefs filed by both sides offer a preview of the territory that will be contested. House prosecutors argue that that Trump was “singularly responsible” for the sacking of the Capitol – where Biden’s election win was being certified – by “creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc”.
If the Democrats do what’s being reported and present the visual evidence, it will be nothing a Senate trial has ever seen before
It is “impossible” to imagine the attack taking place as it did without Trump whipping up the crowd into a “frenzy”, they argue, citing the same view expressed by the Wyoming congresswoman Liz Cheney, a Republican who defied the party line by voting for impeachment.
But in a 14-page brief that uses the word “denied” or “denies” some 29 times, Trump’s hastily assembled legal team contend that he cannot be blamed because he never incited anyone to “engage in destructive behavior”. The people “responsible” for the attack are being investigated and prosecuted, they add.
But the Democrats’ brief carries detail of the horror felt by politicians and their staff during the mayhem. “Some Members called loved ones for fear that they would not survive the assault by President Trump’s insurrectionist mob,” they write.
The anguish was on vivid display in recent days as members such as Alexandria Ocasio-Cortez and Rashida Tlaib recalled the traumatic events of 6 January during speeches on the House floor. Tlaib broke down in tears as she pleaded with colleagues: “Please, please take what happened on January 6 seriously. It will lead to more death, and we can do better.”
Trump’s conduct not only “endangered the life of every single member of Congress”, the impeachment managers say, but also “jeopardized the peaceful transition of power and line of succession”.
Their brief details threats to Mike Pence, the then vice-president, and Nancy Pelosi, the House speaker, as the pro-Trump mob rampaged through the building and “specifically hunted” them. Some chanted “Hang Mike Pence!” and branded him a traitor for refusing to overturn the election result, video footage shows.
But how ever emotive the evidence, Trump’s team denies that the Senate has the authority to hear the case because he is now a private citizen and no longer in office. Democrats reject this, pointing to the example of William Belknap, a war secretary whose resignation in 1876 did not prevent him being impeached by the House and tried the Senate.
They also argue that the constitution explicitly allows the Senate to disqualify a convicted former official from holding office in the future, a vital consideration given that Trump has not ruled out running for president again in 2024.
The defence’s challenge to the constitutionality of the trial, however, looks certain to clinch Trump’s acquittal. Already 45 out of 50 Senate Republicans, including the minority leader, Mitch McConnell, voted on that basis in an effort to end the trial before it began.
A two-thirds majority of the 100-member Senate would be required to support the charge to convict Trump, meaning that 17 Republicans would need to join all 50 Democrats. Most Republicans have repeatedly shown they are loyal to Trump and wary of retribution from his base.
Michael Steele, former chairman of the Republican National Committee, predicted: “You may be able to get seven or eight Republicans at the end of the day voting to convict but they’re weak and afraid that they may lose their little precious seat. ‘So the country be damned, I’m still going to be a senator, I have to get re-elected.’
“That’s the most important thing for them. If their mama were on trial, they would sacrifice their mama if they get to keep their seat: that’s what it boils down to. Tell me, what are you willing to sacrifice your re-election for, if not the country?”
Even so, there is still some suspense around whether Trump will pressure his legal team to push “the big lie” of a stolen election. Over two months his bogus claims of election fraud were rejected by courts, state officials and his own attorney general.
What are you willing to sacrifice your re-election for, if not the country?
The defence’s legal brief points to the first amendment, which protects freedom of speech, to assert that Trump was entitled to “express his belief that the election results were suspect”. Pushing this hard at the trial could prove a spectacular own goal that will make it harder for Republicans to defend him.
Steele added: “If they present that as an argument, they’ll get laughed out of the out of the chamber. They would actually be lying. They would be presenting false evidence because they could make the allegation and, if I’m a senator, ‘Show me the proof. You mean to tell me you have proof that 60 courts and the supreme court didn’t have?’”
A key figure in the trial will be Jamie Raskin, a constitutional law professor who, despite being a relatively new member of the House, has risen to prominence as lead impeachment manager. His 25-year-old son, Tommy, a Harvard law student who struggled with depression, took his own life on New Year’s Eve. Raskin told CNN last month: “I’m not going to lose my son at the end of 2020 and lose my country and my republic in 2021.”
Raskin requested that Trump, now living at his luxury estate in Florida, testify under oath at the trial but the ex-president’s lawyers, Bruce Castor and David Schoen, rejected the idea as a “public relations stunt”. It remains unclear whether the prosecutors will be able to call other witnesses, such as police officers still recovering from serious injuries.
Impeachment is inescapably a political process and the fact that Leahy, a Democrat, is presiding rather than the neutral chief justice is only like the fuel the partisan fires among senators who always have an eye on the next election.
Wendy Schiller, a political science professor at Brown University in Providence, Rhode Island, said: “The key audience for this trial, if it exists, is suburban voters. They defected from the Republicans at the presidential level and defected from them in Georgia at the Senate level in the runoff.
“If the Democrats can gain with suburban voters by tying the incumbent Republican senators to Donald Trump for the next two years, it helps them keep the Senate and that’s the whole reason this trial is happening.”
Schiller added: “You can see why the House impeached Donald Trump: a, he was still in office and b, it was to safeguard the country against any abuses of power that he might commit in the 10 days between impeachment and January 20. [But] It’s very hard to make the argument that this trial is meaningful.”