This week, the U.S. Senate will do something it has never done before in its 230-year history: Hear a second impeachment trial for a president charged with incitement of an insurrection that threatened the lives of the trial’s own jurors and broke through to the very chamber where the trial will unfold.
Despite it all, the latest impeachment trial of former President Donald Trump will open Tuesday afternoon in a room full of people who wish they were anywhere else, from the 100 jurors who will hear the case to the team of Trump lawyers arguing it. Down the street, the new White House—which has to this point treated the trial as if it were happening on another plane of existence—is seemingly counting down the minutes until the tedious business is dispensed with.
That’s not to say that the nine House Democrats who will present the case against Trump will be shunned. The newly minted Senate Democratic majority is, to a person, furious at the ex-president, and they are eager to see him held accountable for what they consider to be a historic offense.
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But the group is far more anxious to pass a sweeping COVID relief package to keep their promises to constituents—and to ensure President Joe Biden can keep his biggest campaign promise.
“I’m really focused on COVID—that’s my primary passion right now,” said Sen. Tim Kaine (D-VA) last Thursday. “So I hope we will not let this trial get in the way of doing what my constituents are really worried about right now.”
Asked twice about the trial on Thursday, Sen. Chris Coons (D-DE), a top Biden ally, simply responded that he was laser-focused on passing the relief bill. “I am focused on delivering relief to the American people who need and deserve it,” he said. “Now that’s what I want to talk about.”
Most Republicans, meanwhile, are arguing it is unconstitutional to try a former president, and some are on record saying this is a “sham trial” because Chief Justice John Roberts is not presiding over it. Whatever window there was for Senate Republicans to consider castigating Trump after Jan. 6, it appears to have decisively closed.
As with the first impeachment trial, the ultimate outcome—an acquittal of Trump—has become a foregone conclusion before any of the arguments have been heard. And as with the first, the only real question is how many Republicans choose to register their disapproval of Trump’s actions and agree to the most severe punishment available. In this trial, because Trump is no longer in office, that punishment would be a lifetime ban on holding federal office.
Such is the challenge facing the Democratic impeachment managers, led by Rep. Jamie Raskin (D-MD), a former constitutional law professor who has been among Trump’s sharpest critics in Congress. The group is aiming to rouse this distracted group of jurors with an emotional case that is poised to rely heavily on the reams of shocking video footage capturing the Capitol attack. And they plan to make those disturbing images inseparable from weeks of Trump’s fulminations about the fantasy of a stolen election.
“He insisted that the election had been ‘rigged’ and ‘stolen,’ and that his followers had to ‘fight like hell’ and ‘fight to the death’ against this ‘act of war,’ since they ‘can’t let it happen’ and ‘won’t take it anymore!’” wrote the Democrats in their pre-trial briefing filed last week. “These statements turned his ‘wild’ rally on January 6 into a powder keg waiting to blow.”
Most Democratic senators are happy to give managers the space to unspool that argument. “If a president of the United States incited a riot, an insurrection, against the United States of America, you can't just say, oh he's gone, doesn't matter,” Sen. Sherrod Brown (D-OH) told The Daily Beast last week. “You can’t do that.”
The outlines of the trial’s schedule took shape Monday, with the two party leaders announcing an agreement on ground rules. Each side will get up to 16 hours of floor time to use for arguments, setting up a final vote on Trump’s fate for early next week. But the rules also give House Democrats the right to force a vote on hearing additional witnesses if they so choose, which could lengthen the proceedings.
The current occupant of the White House, meanwhile, has pointedly refused to expend much energy on speculating about the Senate trial of his predecessor, part of an administration-wide policy of non-engagement with the lingering vestiges of Trumpism.
“Let the Senate work that out,” Biden told reporters on Monday morning, when asked whether Trump should lose the right to hold federal office again. The response is in keeping with weeks of stonewalling by White House press secretary Jen Psaki when asked in a myriad of ways about Biden’s feelings on Trump’s impeachment.
“I’m just not gonna have any more for you on weighing in on impeachment,” Psaki told reporters during a press briefing later on Monday, in response to one of a half-dozen questions on the matter from reporters who, justifiably, wanted to know how Biden—a 36-year veteran of the Senate who once taught constitutional law—felt on the unprecedented impeachment trial of a former president. To each of those questions, Psaki gave some variation of the same response: that Biden intends to leave impeachment up to the Senate, and that his focus is on his legislative agenda.
“He ran against him because he felt he was unfit for office, and he defeated him,” Psaki said at one point Monday, when asked about Biden’s hopes for the pace of the impeachment trial. “His views of the former president are pretty clear.”
Left unmentioned was that very agenda was, of course, stalled in the Senate—a fact not lost on those trying to move Biden nominees through the confirmation process.
Within the Biden transition team, those charged with getting the president’s nominees approved, the speed with which the trial might be conducted is being watched much more closely, as the Senate’s focus on impeachment delays passage of Biden’s $1.9 trillion pandemic relief bill, the primary focus of his legislative agenda.
“It’s so Trumpian,” one transition official told The Daily Beast. “Only Trump could find a way to make someone else’s first 100 days in office become so much about him.”
As they anxiously eye their watches and count down until the Senate floor is free again to confirm Biden’s Cabinet picks and consider COVID relief, most Senate Democrats appear to be hoping their House colleagues don’t unspool the case too far.
Some senators, like Brown, have questioned the need for more testimony supporting a tragedy that unfolded in plain sight. “I’m not a lawyer, but I don’t know why you would have witnesses,” said Brown. “We don’t need them like we did last year, because we heard Trump’s berating and begging and threatening of the [Georgia] secretary of state. We heard we saw the video of speeches and the rioting.”
For different reasons, the Trump team would also like to have this process put in the rear-view as soon as possible. But in the days they do have, Trump’s lawyers are planning to use the free airtime to do something Trump’s last impeachment defense focused on doing during the previous Senate trial: owning some libs, though not at all to the degree Trump had wished.
For weeks, Trump had pestered his lawyers and advisers—including the legal team that imploded late last month, before the ascension of attorneys Bruce Castor and David Schoen—to make arguing that the 2020 election was stolen and that Trump had actually won (neither which is even remotely true) a centerpiece of a vigorous defense on Capitol Hill, according to multiple people who’ve discussed this with the ex-president.
Though Trump’s lawyers and remaining advisers have been publicly signaling for days that they do not intend to prominently feature those false and conspiracy-theory-fueled lies about the election, they could go right up to the line.
In a 78-page defense memorandum released Monday—that was equal parts legal defense and MAGA fan service—Trump’s defense ripped the impeachment trial of a former president as a contradiction in terms while padding the footnotes section with Easter eggs for Trump devotees. In one passage that condemns the House impeachment report as “hearsay” for using news reports as evidence, the defense brief cites Gateway Pundit, the conspiracist website that was recently banned from Twitter for supporting Trump’s false claims of election fraud.
The brief also contends at one point that some of the rioters during the MAGA mob violence were “anti-Trump,” which mirrors what the ex-president has kept privately grumbling about at Mar-a-Lago: the groundless theory that antifa could have been behind much of the violence on Jan. 6 and may have “framed” Trump fans. In another section, the brief warns that Democrats may rue the day that former officials might be impeached after their term in office expires because “former Vice President Joe Biden”—known in most circles as “President Joe Biden”—could be impeached for his supposed orchestration of the “Russia hoax.”
The reference to the “former vice president” is, perhaps, not a total accident. In the past few days, Trump has made clear to advisers that he absolutely doesn’t want his lawyers saying that Biden beat him fair and square, even if they don’t make the legitimacy of the election their main line of reasoning at the trial, according to a person familiar with the matter. The former president strongly feels, this source said, that doing so would amount to Trump admitting defeat.
Trump’s lawyers have also made it clear false equivalence will be part of their defense for the riot itself, potentially reviving a greatest hits reel of right-wing outrage fuel of Democrats using “inflammatory rhetoric,” as Castor referred to it, during an appearance on Laura Ingraham on Friday night.
Aside from filing two trial briefs, the key interlocutors in this drama—the impeachment managers—have largely been silent, under a quasi-media blackout, as they prepare for the proceeding in close consultation with top Democrats like Speaker Nancy Pelosi (D-CA).
They have been tight-lipped about their strategy and approach, including on witnesses. Asked last week by The Daily Beast how long he imagined the trial lasting, one of the managers, Rep. David Cicilline (D-RI), responded succinctly: “As long as it takes.”
