That won’t be easy, but they won over another Republican senator Tuesday. Trials are full of surprises and we should reserve judgment on the final outcome here.
As is clear from their trial brief and their advocacy Tuesday, the impeachment managers will make the case that Trump incited insurrection over the course of months, building up to January 6, and that this incitement of insurrection meets the “high crimes and misdemeanors” standard for conviction and disqualification from future federal elected office.
They will argue that Trump’s fomenting of violence against the Capitol was an attempt to extend his grip on power in violation of his oath of office. His incitement of insurrection on January 6 was only the latest in a long series of actions he took to try and subvert the democratic process, again in violation of his duty as president.
Finally, Trump’s defense will argue that Trump’s exhortations were not, in fact, calling for actual lawlessness. They were figures of speech. While it is true that the word “fight” can be used figuratively, the context here is critical.
In this case, for the crowd gathered before then-President Trump to make good on his exhortation to “stop the steal” — there was literally only one way to effectuate this call to action: to impede the counting of electoral votes that would shortly occur in the Capitol. After months of whipping his followers into a frenzy, his message on January 6 was perfectly clear, and his lawyers’ claims that he was just talking about election security are absurd.
Despite the strength of the House managers’ argument and the weakness of Trump’s, persuading 17 Republican senators will not be easy. Still, there are some advantages that we did not have in the prior impeachment and trial, where one of us served as co-counsel for the managers.
We can expect some “trial magic” to attempt to expand those numbers. The impeachment managers will mount a dayslong Ken Burns-style miniseries, likely including never-before-seen video of witnesses and events. As one of us saw firsthand, the video at the prior trial transfixed the Senate jurors, and the evidence here will be more compelling. That was demonstrated by the short video shown early in Tuesday’s proceedings, and there is much more to come. And this time, the Senate jurors themselves are both witnesses to and victims of the crime and are sitting in the chamber that was the scene of that crime.
The impeachment managers’ task is to summon the jurors back to what they felt that day, and ask: How do you want history to remember you? As the senator who allowed the former president, the insurrectionist-in-chief, to evade sanction? To run for office again? To continue his dragging democracy down?
There is more than enough testimony on video to make that case to the Senate, including not only Trump’s words but the attackers admitting they acted at his behest. Nevertheless, other key witnesses may yet step or be called forward. If there were no possibility of such surprise witnesses, the opportunity for a vote on them would not have been included in the organizing resolution.
In working their way through all this, impeachment managers will remain keenly aware that they are addressing two audiences: The jury of 100 senators, of course, but perhaps more importantly, that of the American people. The voting public put Trump out of office after the Senate failed to convict him during his first impeachment and trial; the electorate will again be the ultimate judges of Trump’s conduct if the Senate again fails to convict.
This trial will be the single best means of providing the American public — the true sentinels of democracy — with the record we all deserve so that we may render a fully informed decision about Trump, should he seek to run again.