Trump’s defense team faces a heavy burden, but loyalty to former President hangs over trial

Democratic impeachment managers alleged that Trump spent months discrediting the election that he eventually lost, building a “big lie” that the votes of his supporters were being stolen and their country was being ripped away from them. Then, the Democratic prosecutors argued, Trump called his supporters to Washington, DC — on a specific date, which he cast as the last chance for them to stop the “theft” of the election as Congress met to certify Joe Biden’s victory. The managers asserted that the former President incited the mob with his false claims and calls for them to march to Congress and to “fight like Hell” on his behalf, in the full knowledge that his incitement would cause a violent reaction.

On that day, Trump not only abdicated his constitutional oath to defend another branch of government — he “reveled” in the destruction being wrought on Capitol Hill, the managers argued.

If Trump’s defense team was facing a real jury, instead of a pack of Republican senators who mostly appear to have made up their mind to acquit Trump before the trial, they would be facing a high bar with the weight of fact and evidence against them.

“I think the end result of this impeachment trial is crystal clear to everybody,” Cruz told CNN on Thursday. “Donald Trump will be acquitted. … It takes 67 votes to convict him and every person in the Senate chamber understands that there are not the votes to convict, nor should there be.”

Political considerations

With that unyielding loyalty to Trump hanging over the trial, the impeachment managers closed their case against the former President Thursday by appealing to the conscience and sense of duty of each senator to protect their fellow Americans by ensuring that Trump faces real consequences, including a vote that would prevent him from seeking federal office again.

“We humbly, humbly, ask you to convict President Trump for the crime for which he is overwhelmingly guilty of,” Rep. Joe Neguse, one of the impeachment managers, said in closing. “Because if you don’t — if we pretend this didn’t happen, or worse, if we let it go unanswered — who’s to say it won’t happen again?”

Those words may weigh heavily on some Republican senators as this trial draws to a close over the next two days. But the initial comments from GOP senators suggest they think the Trump wing of the party is still likely to maintain firm control over the primary process in 2022.

Though the question of Trump’s influence over the GOP has been a subtext of the entire trial, Rep. Jamie Raskin of Maryland and his fellow impeachment managers implicitly asked senators to set politics aside Thursday by appealing to a deeper sense of purpose, repeatedly underscoring the point that the insurrection was an incident that transcended party lines and should unite them as Americans.

Neguse, a Colorado Democrat, reminded senators that at a time when the armed mob was shouting “Hang Mike Pence,” Trump’s instinct was to double down on his attacks on his vice president on Twitter. Neguse and other impeachment managers also sought to sway senators by noting that despite Trump’s supposed desire to stand with the “men in blue,” he stood by idly at the White House for hours while officers were being brutally beaten by his followers.

“They deserved a president who upholds his (oath), who would not risk their lives and safety to retain power. A president who would preserve, protect, and defend them. But that’s not what he did,” Neguse said. When the police were still barricaded and being attacked with poles, “he said in his video to the people attacking them: ‘We love you. You’re very special.’ What more could we possibly need to know about President Trump’s state of mind?”

Questions for the Trump legal team

In his closing argument Thursday, Raskin posed a series of provocative questions that the defense team is unlikely to be able to answer Friday. Why didn’t Trump tell his supporters to stop the attack on the Capitol as soon as he learned it was happening? Why didn’t he send help to overwhelmed law enforcement officers for at least two hours after the attack began? And why didn’t he “at any point that day condemn the violent insurrection and the insurrectionists,” Raskin asked.

In their opening arguments earlier this week, and in more recent comments to reporters, Trump defense attorney David Schoen made a series of arguments that did not attempt to challenge the evidence against Trump. Instead, he argued that the entire impeachment process was not only unconstitutional, in that Trump is now a private citizen, but that it risked inflaming the mob again. He warned it would “open up new and bigger wounds across the nation.”

Schoen’s colleague Bruce Castor made a convoluted argument that by condemning Trump’s inflammatory language, Democrats were trying to deprive him of his right to free speech. Schoen advanced that strategy by claiming that the real aim was to disenfranchise Trump’s 74 million voters by seeking to ban the former President from running again in 2024. This is a somewhat ironic charge since the entire affair resulted from Trump’s repeated and false claims of electoral fraud.

Castor offered a surreal reaction to the Democrats’ case Thursday when CNN’s Manu Raju asked him what his reaction was to reams of evidence presented by impeachment managers that rioters were taking orders from Trump as they carried out the insurrection.

“Did someone say that they heard directly from President Trump to do that?” Castor replied. “I don’t believe that’s what happened, no.”

Sources also told CNN that Trump’s team has been seeking video evidence of its own — including clips of prominent Democrats using political phrases including the words “fight.” Senators may see footage of Majority Leader Chuck Schumer warning outside the Supreme Court that the country would “reap the whirlwind” because of the actions of conservative justices. Of course, on that occasion, Schumer’s rhetoric did not lead to violence. The defense is also reportedly planning to argue that by presenting graphic video evidence of the terror inside the Capitol, the prosecution was trying to glorify violence or provide entertainment for television viewers.

Before resting their case on Thursday, the House managers took pains to counter likely defense arguments. Raskin, for example, said the Senate’s vote on Tuesday to declare the trial constitutional meant the defense could only build a case around Trump’s guilt or innocence.

The Maryland Democrat and lead impeachment manager, who portrayed Trump as a tyrant who “sought to nullify the political rights and sovereignty of the American people,” argued that senators couldn’t just get away with their argument that the trial itself is unconstitutional because the former President is already out of office.

“We have put that jurisdictional, constitutional issue to bed. It is over,” Raskin said. He called on Trump’s defense team to focus “like a laser beam on the facts and not return to the constitutional argument that’s already been decided by the Senate.”

Still, a number of Republicans indicated on Thursday that they still intended to make their ultimate vote about the trial’s constitutionality, avoiding weighing in on the case against Trump.

Neguse sought to discredit an argument that no one actually heard Trump order the crowd to commit violence — a similar conceit to the one adopted by Trump’s defense in his first impeachment trial when his team argued that he didn’t specifically ask Ukraine’s President to interfere in the election.

The Colorado Democrat produced multiple examples of Trump praising supporters who acted violently, or in which Trump appeared to condone violence, as he alleged the ex-President knew exactly what would happen when the mob reached the Capitol.

“His message was crystal clear. And it was understood immediately. Instantly. By his followers,” Neguse said.

“We don’t have to guess as to how they reacted. We can look at how people reacted to what he said. You saw them. And you saw the violence.”