Democrats to go for emotion at Trump trial

The team of Democrats prosecuting former President Trump for his role in last month’s assault on the U.S. Capitol are prepping their argument for maximum emotional impact.

The nine House impeachment managers plan to avoid any long or abstract legal analysis in favor of efforts to tell the “gripping and spellbinding story” of how Trump incited the deadly insurrection at the Capitol on Jan. 6.

That strategy, they believe, carries at least two advantages: It keeps the message simple and easily digestible for the TV audience; and it allows the prosecution to wrap up quickly so that Democrats can get on with the ambitious legislative agenda of the nascent Biden administration, starting with another massive round of COVID-19 relief.

While Trump’s impeachment trial last year featured technical legal arguments, a complex narrative and a cast of obscure international characters and U.S. diplomats, the House prosecutors see this case, which launches in the Senate on Tuesday, as much more recent, more visual and easier to prove.

Not only were the Senate jurors eyewitness to — and victims of — the Capitol siege, but countless hours of videotaped footage of the rampage have been circulating incessantly in the weeks since the violent attack, captivating a country that remains sharply divided over who bears the blame.

The outcome of the trial is all but predetermined: It’s highly unlikely that 17 Republican senators will cross the aisle to convict their former White House ally, who remains enormously popular among the GOP faithful.

But Democrats have no doubt where the fault for the assault lies — “I hold Trump personally responsible,” said House Rules Committee Chairman Jim McGovern (D-Mass.) — and the Democratic prosecutors will rely heavily on that trove of video evidence, including portions of Trump’s “Save America” speech outside the White House just moments before the siege.

They’ll argue that his instructions to “fight like hell” incited his followers to sack the Capitol that day. The managers are also expected to present senators with video clips of insurrectionists hunting for lawmakers and attacking police; one Capitol Police officer, Brian Sicknick, died after suffering injuries. And they are likely to play audio from Trump’s phone call asking Georgia’s secretary of state to “find” enough votes to flip the state in Trump’s favor — an episode mentioned in the single article of impeachment passed by the House last month.

It’s unclear if the managers have had access to hundreds of hours of previously unreleased video footage taken by dozens of surveillance cameras in and around the Capitol. The FBI has taken possession of the videos as it investigates the Jan. 6 assault.

But in asserting Trump was responsible, the managers also are likely to point to Trump’s own words on Twitter and public comments by some rioters that they believed they were simply answering the call of the former president.       

“The case for the president’s guilt is overwhelming and the evidence is devastating,” one impeachment manager told The Hill. “We’re going to tell America the gripping and spellbinding story of what happened on Jan. 6.”

The nine managers worked through the weekend preparing oral arguments and other materials for the trial. They met virtually through Zoom all day Saturday, and met in person in an undisclosed room in the Capitol on Sunday, from morning through the Super Bowl. Rep. Jamie Raskin (D-Md.), a constitutional expert who’s leading the prosecution, allowed the group to break at halftime to allow managers, staff and Capitol Police to watch the second half, sources said, but by then it wasn’t a very close game.

The impeachment managers were back in the Capitol on Monday putting the finishing touches on their presentation. Each of the nine now is trailed by a Capitol Police security detail due to the heated atmosphere surrounding the trial; managers from last year’s trial also had protection.

Trump’s defense team, meanwhile, published a 78-page document Monday outlining the former president’s strategy. Trump’s team, led by attorneys David Schoen and Bruce Castor, will argue that the impeachment trial is unconstitutional since Trump has already left office — even though some prominent conservatives have rejected that legal argument — and that Trump’s hourlong speech moments before the assault was protected under the First Amendment.

In that speech at the Ellipse, Trump continued to repeat the falsehood that the Nov. 3 election was “stolen” from him and his supporters and said “if you don’t fight like hell, you’re not going to have a country anymore.” Trump also made several indirect threats to Mike Pence, saying his vice president overseeing the ceremonial certification needed to “do the right thing” and overturn the election. He concluded his speech by urging his devotees to march to the Capitol, where some of them searched for Speaker Nancy Pelosi (D-Calif.) and chanted “Hang Mike Pence!”

“Of the over 10,000 words spoken, Mr. Trump used the word ‘fight’ a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence,” Trump’s defense team stated in their brief.

“The real truth is that the people who criminally breached the Capitol did so of their own Accord and for their own reasons, and they are being criminally prosecuted,” they added.

In a test vote that might serve as a preview of the trial to come, Senate Republicans forced a vote last month declaring the impeachment trial unconstitutional. All but five Republican senators voted to dismiss the case, foreshadowing Trump’s likely acquittal.

Still, there’s mounting pressure on Republicans to gauge the case on its merits. A new ABC News-Ipsos poll released Sunday found that 56 percent of voters think the Senate should convict Trump to prevent him from holding high office again. And the same day, Charles Cooper, one of the most prominent conservative attorneys in Washington, wrote an op-ed in The Wall Street Journal rejecting the claim — central to Trump’s defense — that presidents are no longer impeachable once they leave office.

Democrats are in ready agreement with Cooper on that point. And the nine managers issued a rebuttal to Trump’s defense on Monday, arguing that Trump may face an impeachment trial since the conduct under scrutiny occurred while he was still in the White House.

“There is no ‘January Exception’ to the Constitution that allows Presidents to abuse power in their final days without accountability,” the brief reads.

The Democrats also rejected the First Amendment defense, saying Trump’s language — particularly at the Jan. 6 rally before the siege — was inherently violent and could be interpreted only as a call to arms against his political adversaries in the Capitol. 

“The House did not impeach President Trump because he expressed an unpopular political opinion,” the Democrats wrote. “It impeached him because he willfully incited violent insurrection against the government.”