‘We have to move on’: Why Democrats decided to fast-track Trump’s second impeachment trial
By Mike DeBonis, Tom Hamburger, Matt Viser and Amy Gardner,
Matt McClain The Washington Post
The Capitol was still littered with the wreckage left by the violent mob of Donald Trump supporters when President-elect Joe Biden phoned House Speaker Nancy Pelosi on the afternoon of Jan. 8.
Just 48 hours after the deadly attack, Democratic lawmakers — including Pelosi (Calif.) and top Senate Democrat Charles E. Schumer (N.Y.) — had quickly coalesced behind a plan to try to force Trump from office, one that appeared headed toward an unprecedented second impeachment.
Biden, less than two weeks from taking the oath of office, told Pelosi he did not oppose impeaching Trump and would leave the decision to her, according to two people familiar with the conversation. But he also made clear he had no intention of letting the prior president’s conduct interfere with the early days of his own administration.
That message shaped the response now on display a month later: A rapid-fire Senate proceeding is on track to be the quickest presidential impeachment trial in American history — one that suits the political calculations of all the parties, but is highly unlikely to result in Trump’s conviction.
What stands to be lost, at least temporarily, is a full reckoning for what may have been the most dismal day for American democracy since the end of the Civil War — including an accounting of Trump’s actions inside the White House on Jan. 6 as the mob rampaged through the Capitol, with some threatening to kill top congressional leaders and Trump’s own vice president.
http://www.washingtonpost.com/video/politics/house-managers-rest-case-against-trump-argue-for-conviction/2021/02/11/340f248e-5f04-412f-89f2-d2a0a228713a_video.html
Initial interest by House impeachment managers in seeking live testimony for the trial quickly foundered, though they have yet to rule out the possibility entirely, according to people familiar with their deliberations, who like others in this report spoke on the condition of anonymity to candidly describe private discussions. Trump rejected a request to testify himself, and calling administration officials — or even nonpolitical White House staff — could spark messy legal battles that could add weeks to the trial.
Many Democrats have concluded that calling witnesses to the violence itself — such as law enforcement officers who battled the mob at the Capitol — could extend the trial indefinitely with little hope changing the outcome, given that 44 of 50 Republican senators voted Tuesday to question the constitutionality of the trial. At least 17 would have to join the 50 Democratic senators to convict Trump and set a potential vote on barring him from future office.
Biden signaled his own desire to move past the trial on Thursday, telling reporters in the Oval Office that he was paying more attention to pursuing his policy agenda.
“I’m focused on my job . . . to deal with the promises I made,” Biden said. “And we all know we have to move on.”
Key senators of both parties have signaled this week that they see no need for further testimony. For many Republicans, it would only extend what they consider to be a constitutionally invalid proceeding whose outcome is already known. For many Democrats, the case for conviction is already in plain sight — unlike Trump’s first impeachment, which was based on actions that largely took place outside the public eye.
Jabin Botsford
The Washington Post
Del. Stacey Plaskett (D-Virgin Islands), one of the impeachment managers, arrives Thursday for the third day of the Senate impeachment trial of former president Donald Trump.
Norman Eisen, who served as counsel to the House managers in Trump’s first impeachment, said witness testimony is a crucial element in any trial. But that testimony, he said, need not be live.
“This time, there is a vast amount of incriminating video capturing Trump’s comments and the insurrectionists’ reactions,” Eisen said. “Everyone can and will see for themselves what was said by Donald Trump and what subsequently happened.”
But others, including some Republicans, believe eyewitness testimony could make a difference, and that Democrats are missing an important opportunity to document what they view as Trump’s culpability for the riot.
[See all the evidence presented in Trump’s second impeachment trial]
Rep. Adam Kinzinger (R-Ill.), one of the 10 House Republicans who voted in favor of impeachment, said at a Washington Post Live event Wednesday that White House aides could offer “valuable insight” on Trump’s actions as the riot unfolded. And he argued that senators should hear testimony from those who were amid the riot — such as D.C. police officer Michael Fanone, who was dragged into the crowd on the Capitol’s West Front and heard rioters shout, “Kill him with his own gun!”
“To hear him tell that story, you realize this is real — it’s not a false flag operation, and there was real evil that day,” Kinzinger said. “A month later we’re sitting here and . . . there’s some that go, ‘Oh, it wasn’t really that bad.’ No, this was terrible.”
‘Everything is hearsay’
Under the bipartisan agreement providing for the trial’s format, the schedule is more condensed than last year’s proceedings, when Trump was acquitted by the Senate after being impeached for a complicated attempt to pressure Ukraine to try to damage Biden.
The agreement this time allowed both the managers and Trump’s defense team to make opening arguments beginning Wednesday and wrapping up no later than Saturday — two fewer days than the first trial. Senators will then be able to submit written questions for four hours, a process that lasted two days in the first trial. Only then will the Senate debate whether to call witnesses.
The question of whether the managers will seek testimony may remain unresolved until the last moment. Eisen noted that in the first Trump trial, the possibility of calling one witness — former Trump national security adviser John Bolton — remained alive until the final hours of the trial as House lawyers negotiated with Bolton’s lawyer, Charles J. Cooper.
This time, the managers are reserving the right to see how the evidence sits with senators and reserving the right to call witnesses, “those who have already been identified and those who may step forward as the trial continues,” one person familiar with the matter said.
The team of nine House lawmakers has worked to identify possible witnesses since Trump’s Jan. 13 impeachment, with a particular focus on those in proximity to Trump who could attest to his conduct on Jan. 6 after he addressed a rally outside the White House.
Jabin Botsford
The Washington Post
Rep. Jamie B. Raskin (D-Md.), center, the lead impeachment manager, departs after the first day of the Senate trial of former president Donald Trump on Feb. 9.
They were particularly tantalized by a comment made by Sen. Ben Sasse (R-Neb.) on the syndicated conservative talk show hosted by Hugh Hewitt on Jan. 8. Sasse described Trump’s mood as “delighted” by the riot, citing his own conversations with White House officials: “As this was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police.”
Managers eyed possible testimony from senior officials such as Marc Short, the chief of staff to Vice President Mike Pence, but immediately concluded they would run into a legal thicket trying to compel their participation. Meanwhile, they canvassed congressional committees and federal agencies for additional details about what happened inside the Trump administration on and around Jan. 6, but made little headway.
[Trauma of Jan. 6 becomes a centerpiece of Trump’s impeachment trial]
There is some precedent for seeking testimony of those close to the president: In 1998, during independent counsel Kenneth W. Starr’s investigation into President Bill Clinton, several Secret Service agents were questioned before a grand jury after courts rejected a White House claim of a novel legal privilege prohibiting those guarding the president from disclosing what they see and hear.
But pursuing such testimony now would be likely to spark extended litigation — an untenable scenario for many Democrats.
Other avenues of possible inquiry included calling people listed on planning documents for the Jan. 6 demonstration at the Ellipse, as well as Georgia Secretary of State Brad Raffensperger, who participated in a long, confrontational phone call with Trump just days before the riot.
Jabin Botsford
The Washington Post
A man wearing a “Make America Great Again” hat walks outside the Capitol building on Thursday.
One option that appears exceedingly unlikely is calling rioters themselves, several of whom have cited Trump’s influence as part of their defense in federal court. At least one — Jacob Chansley, also known as the “Q Shaman,” who was captured on video in and around the Senate chamber wearing a fur-and-horns outfit — has offered to testify at the impeachment trial.
Chansley’s attorney, Albert Watkins, said in an interview that he has been offering his client’s testimony for weeks, but no one involved in the impeachment proceedings has responded. Watkins said that was a mistake.
“In short, they have to prove that, but for the words and actions of the president, those who walked down Pennsylvania Avenue and entered the Capitol would not have done so,” he said. “Otherwise, everything is hearsay.”
But the managers of an impeachment trial do not have the same obligations as criminal prosecutors, who have to prove every element of a crime, said Russ Feingold, a former Democratic senator from Wisconsin and the president of the liberal American Constitution Society.
Feingold was the only Democratic senator to vote to call for depositions from three witnesses in the 1999 Clinton trial, a motion that was approved and one that Biden had opposed. That vote was warranted “given the complexity of the case,” Feingold said, while “this one is not nearly in need of that kind of explication, given the obvious evidence that they’re able to present of exactly what happened.”
[Democrats use compelling new audio, video to bolster their case for Trump’s conviction]
“House managers are really doing a brilliant job of letting the video speak for itself,” he said.
Whether the managers request witness testimony is one thing; a separate question is whether senators would allow it. Several Democratic senators this week suggested they saw little need for live witnesses.
“The evidentiary record is pretty clear about what happened,” said Sen. Michael F. Bennet (D-Colo.). “I’m in the camp of wanting to do this in a way that’s thorough and in a way that the American people understands what this country has just been through, and I think we can do that in an expeditious way.”
“We have the witnesses on tape,” said Sen. Chris Van Hollen (D-Md.). “The House managers have already asked Donald Trump to come here and testify in his defense, and the fact that he refused the invitation, to me, tells you how weak a case he has.”
Salwan Georges
The Washington Post
David I. Schoen, center, a member of former president Donald Trump’s legal team, walks back to the Senate floor after a break on Thursday.
But the relatively bare-bones nature of the proceedings has fueled attacks from Republicans and Trump’s own legal team, which argued Tuesday that the lack of due process in the House and the paucity of the Senate review exposed the impeachment effort as a political vendetta.
“Anyone truly interested in real accountability for what happened at the Capitol on Jan. 6 would, of course, insist on waiting for a full investigation to be completed,” said Trump lawyer David I. Schoen, citing “new evidence coming in every day about preplanning, about those who are involved and about their agenda, bearing no relationship to the claims made here.”
Sen. Josh Hawley (R-Mo.), who continued his effort to challenge electoral votes after the riot, accused Democrats of “desperately trying to rush this as quickly as they can” in comments Wednesday to reporters.
“They don’t want to be doing this, and it’s because they know . . . it’s a huge waste of time,” he said.
‘We’re in the
middle
of a pandemic’
Three days after speaking with Pelosi in January, Biden publicly signaled what he had in mind: An accountability process that would not impede his administration’s agenda — including his then-coalescing plan to launch a new round of coronavirus relief.
He told reporters on Jan. 11 that he was interested to see if lawmakers could “bifurcate” impeachment and other agenda items, including Cabinet nominations.
“Can we go half-day on dealing with impeachment, and half-day getting my people nominated and confirmed in the Senate, as well as moving on the [relief] package?” he asked. “I haven’t gotten an answer from the parliamentarian yet.”
The answer was not encouraging: Conducting other business alongside an impeachment trial would require Republican consent, an unlikely scenario.
Two days later, when the House voted to impeach Trump on a single article of “incitement of insurrection,” Biden released a statement that said, “I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation.”
[Where senators stand on impeachment]
The message to Capitol Hill was clear: Holding Trump accountable for Jan. 6 was important, but so was delivering on Biden’s campaign pledge to take on the pandemic. Even a three-week delay — the length of Trump’s first impeachment trial — could be disastrous, Biden advisers concluded.
“We’re in the middle of a pandemic, and a new administration. There’s huge bits of business to be done,” said one person familiar with Biden’s strategy. “The more trial you have on the floor, the less business can be done on legislation needed in the midst of a global pandemic, or nominations for the Cabinet.”
Bill O’Leary
The Washington Post
President Biden walks along the Colonnade as he heads to the Oval Office on Feb. 8.
But if they had any hope of “bifurcating” the Senate, it ended when Sen. Mitch McConnell (R-Ky.) — in one of his final acts as majority leader — denied a request from Schumer to bring the Senate back into session to begin the impeachment trial before Biden’s inauguration.
White House and Senate officials say they have been in frequent touch with each other about the logistics of the trial and how much floor time will be taken up by it, but they insist that they have had no conversations about the Democratic strategy around impeachment proceedings.
As the trial got underway this week, House lawmakers barreled forward on the coronavirus relief bill — pushing pieces of the sweeping legislation through several committees in hopes of assembling it into a final package that will be passed and forwarded to the Senate later this month.
Biden said Thursday he “didn’t watch any of the hearing live” but had seen news coverage.
“I think the Senate has a very important job to complete, and I think my guess is some minds may be changed, but I don’t know,” he said.
[Four takeaways from Day 3 of Trump’s impeachment trial]
Leading Democrats and many Republicans are already looking for an outside body modeled on the 9/11 Commission to provide an unfettered accounting of the attack — one that could have a freer hand to pursue testimony from inside the White House.
“The mandate of whatever it will do will be very broad,” said a senior Democratic aide familiar with the discussions. “The 9/11 Commission’s charge was expansive. I imagine this will be, too.”
Pelosi has repeatedly indicated that is her preferred avenue of accountability, and House Republicans have made a similar proposal, though there is no firm timeline for its creation.
In an MSNBC interview aired the day before Biden’s inauguration, Pelosi discussed the need for such a commission and called for “truth and trust.”
“Then,” she said, “we can govern.”
Asked whether Biden supported such a commission Monday, White House press secretary Jen Psaki gave a familiar answer: “At this point in time, our focus is really on getting the pandemic under control, and we’ll leave that decision up to Congress.”
Erica Werner contributed to this report.
