WASHINGTON — The battle to shape the legacy of former President Trump moved into its second day Wednesday with House prosecutors professing hope they could still win over Senate Republicans but also looking beyond their immediate audience to the wider American public.
Repeatedly using Trump’s own words, the impeachment managers laid out a case that, they said, showed he acted methodically over a period of months to prepare his followers to use violence to try to keep him in office.
Trump’s actions were “deliberate, planned and premeditated,” impeachment manager Rep. Eric Swalwell (D-Dublin) told senators as he laid out a series of statements by the former president in which Trump called on supporters to try to block election counts and, once that failed, told them to rally in Washington on Jan. 6, the day Congress met to formally accept the tally of electoral votes.
The first two hours of arguments provided little evidence that any minds were being changed — several Republican supporters of Trump in the Senate could be seen reading papers or doodling during the speeches by House impeachment managers.
“There’s nothing new here, for me, at the end of the day,” said Sen. Josh Hawley, R-Mo. “I think that we don’t have jurisdiction as a court in order to pursue this, so nothing that I’ve seen changes my view on that.”
Sen. Lindsey Graham, R-S.C., said he spoke with Trump on Tuesday night and stressed to him that enough Republican senators would stick with him to guarantee an acquittal.
“I reinforced to the [former] president, the case is over. It’s just a matter of getting the final verdict now,” Graham said.
Democrats said that they had not given up hope of convincing some additional Republicans to vote to convict Trump.
Their arguments, which are expected to last the full day and continue for part of Thursday, were designed principally with three themes in mind:
First, they sought to rebut the main argument by Trump’s defense lawyers — that the president’s speech on the day of the riot, along with his other remarks, cannot be punished because his words are protected by the 1st Amendment. The House prosecutors argued to the contrary, saying what Trump said and did was to specifically incite violence.
“President Trump cannot say, ‘I didn’t know what I was inciting,’” Swalwell said. Repeated confrontations between Trump supporters and election officials around the country in the weeks leading up to the Jan. 6 invasion of the Capitol showed clearly that the potential for violence was escalating.
“There was plenty of evidence that his words had consequences, and if he wanted to stop it, he could stop it.”
Even on the day of the riot, Trump had the power — and a legal duty — to try to stop the violence by his supporters but failed to act, said Rep. Joe Neguse (D-Colo.). “He alone had that power,” Neguse said. The rioters “believed they were following his orders.”
The chief impeachment manager, Rep. Jamie Raskin (D-Md.), in his speech opening the prosecution case, referred to a famous remark by Supreme Court Justice Oliver Wendell Holmes that the Constitution did not protect a person who falsely shouted “fire” in a crowded theater.
“This case is much worse,” Raskin said. “It’s more like a case where the town fire chief who’s paid to put out fires sends a mob — not to yell ‘fire’ in a crowded theater, but to actually set the theater on fire” and then do nothing to put out the flames.
Later in the day, the impeachment managers plan to use video evidence, including previously unseen details of what occurred during the riot, to drive home their second theme: that Trump’s actions threatened the lives and safety of members of Congress and their staffs. The plans include use of video from security cameras in the Capitol, Democrats said.
“There’s going to be new coverage that no one has seen, and it will provide new insight into both the extreme violence that everyone suffered, the risk and the threat that it could have led to further violence and death,” a senior aide to the impeachment team told reporters Wednesday. The evidence “shows really the extent of what Donald Trump unleashed on our Capitol,” said the aide, one of three who spoke to reporters under ground rules that didn’t allow use of names.
Finally, the prosecutors repeatedly depicted Trump as having crossed lines that other elected officials would not — an effort to persuade Republicans that they can separate themselves from him.
“All of us in this room have run for election, and it’s no fun to lose,” Rep. Joaquin Castro (D-Texas) said. But, he said, elected officials know that when they lose, they have to accept the will of the voters, which Trump refused to do.
“What our commander in chief did was wildly different from what anyone here in this room did to raise election concerns,” Swalwell said.
In laying out their case, the impeachment managers have a dual audience.
Their immediate target is the senators sitting in front of them, evenly divided by party. Because conviction in an impeachment case requires a two-thirds vote, 17 Republicans would have to vote to convict, assuming all Democrats vote against Trump. At this point, the number of Republicans willing to vote against Trump appears to be no more than half that.
But Democrats know that, beyond the Senate, the arguments and, in particular, the video evidence they’re presenting can reach a broader public. They have invested heavily already in an effort to convince voters that Trump and the Republicans who support him have sided with extremists, and further evidence of Trump’s complicity in the riot will reinforce that connection in voters’ minds, Democratic strategists believe.
That approach may already be succeeding, at least to some extent. Polling by Gallup released Wednesday showed that public support for the Republican Party had dropped since November, largely because a slice of people who used to identify as Republicans now have a negative view of the party.
On Tuesday, Raskin began presenting the evidence by showing senators a 13-minute video that provided a timeline of events on the day of the attack, splicing together scenes of Trump speaking to followers with the violent events that followed. The video came as Raskin and his colleagues successfully argued that the Senate had the authority under the Constitution to try Trump even though he no longer held office.
The presentation drew praise — although not votes — from several Republican senators who supported Trump but said the Democrats had presented an emotionally compelling case. By contrast, senators panned the presentation by Trump’s defense lawyers. The former president was also unhappy with the arguments, according to people familiar with his thinking.
In the end, only six Republican senators joined the chamber’s Democrats in voting to proceed with the trial. But Democrats were encouraged that they had picked up one vote. Late last month, in a procedural test vote, only five Republicans voted to let the trial proceed.
Sen. Bill Cassidy of Louisiana, the one Republican who changed his vote, cited the quality of the Democratic presentation as he explained his stand.
“If I’m an impartial juror, and I’m trying to make a decision based on the facts as presented on this issue, then the House managers did a much better job,” he told reporters.
Democrats said Wednesday that the impeachment managers were realistic about the political barriers they faced but still optimistic.
“We believe in the power and the strength of the overwhelming evidence in this case. And we believe that that evidence still has the power to persuade reluctant Republicans who were just now waking up from the grip of the former president,” one aide said.
“We see other indications of movement from the Republicans,” the aide said. “The managers are going to go in and they are going to move hearts, minds — I think the consciences —of 100 jurors, none of whom have voted yet. And we fully expect to prevail in the end.”
