After a prosecution case rooted in emotive, violent images from the Capitol siege, Donald Trump’s impeachment trial shifts on Friday to defense lawyers prepared to make a fundamental concession: The violence was every bit as traumatic, unacceptable and illegal as Democrats say.
But, they will say, Trump had nothing to do with it.
Stipulating to the horrors of the day is meant to blunt the visceral impact of the House Democrats’ case and quickly pivot to what they see as the core — and more winnable — issue of the trial: whether Trump can be held responsible for inciting the deadly Jan. 6 riot.
The argument is likely to appeal to Republican senators who themselves want to be seen as condemning the violence without convicting the president.
“They haven’t in any way tied it to Trump,” David Schoen, one of the president’s lawyers, told reporters near the end of two full days of Democrats’ arguments aimed at doing just that.
He previewed the essence of his argument Tuesday, telling the Senate jurors: “They don’t need to show you movies to show you that the riot happened here. We will stipulate that it happened, and you know all about it.”
In both legal filings and in arguments earlier in the week, Trump’s lawyers have made clear their position that the people responsible for the riot are the ones who actually stormed the building and who are now being prosecuted by the Justice Department.
Anticipating defense efforts to disentangle Trump’s rhetoric from the rioters’ actions, the impeachment managers spent days trying to fuse them together through a reconstruction of never-been-seen video footage alongside clips of the president’s monthslong urging of his supporters to undo the election results.
Democrats, who wrapped their case Thursday, used the rioters’ own videos and words from Jan. 6 to pin responsibility on Trump. “We were invited here,” said one. “Trump sent us,” said another. “He’ll be happy. We’re fighting for Trump.”
The prosecutors’ goal was to cast Trump not as a bystander but rather as the “inciter in chief” who spent months spreading falsehoods and revving up supporters to challenge the election.
In addition to seeking conviction, they also are demanding that he be barred from holding future federal office.
Trump, they said, laid the predicate for the attack by stoking false claims of fraud, encouraging supporters to come to Washington and then fanning the discontent with his rhetoric about fighting and taking back the country.
“This attack never would have happened but for Donald Trump,” Rep. Madeleine Dean, one of the impeachment managers, said as she choked back emotion. “And so they came, draped in Trump’s flag, and used our flag, the American flag, to batter and to bludgeon.”
For all the weight and moment that the impeachment of a president is meant to convey, this historic second trial of Trump could wrap up with a vote by this weekend, particularly since Trump’s lawyers focused on legal rather than emotional or historic questions and are hoping to get it all behind him as quickly as possible.
With little hope of conviction by the required two-thirds of the Senate, Democrats delivered a graphic case to the American public, describing in stark, personal terms the terror faced that day — some of it in the very Senate chamber where senators are sitting as jurors. They used security video of rioters searching menacingly for House Speaker Nancy Pelosi and Vice President Mike Pence, smashing into the building and engaging in bloody, hand-to-hand combat with police.
They displayed the many public and explicit instructions Trump gave his supporters — long before the White House rally that unleashed the deadly Capitol attack as Congress was certifying Democrat Joe Biden’s victory. Five people died in the chaos and its aftermath.
Videos of rioters, some they posted to social medial themselves, talked about how they were doing it all for Trump.
“What makes you think the nightmare with Donald Trump and his law-breaking and violent mobs is over?” asked Rep. Jamie Raskin, D-Md., the lead prosecutor. He said earlier, “When Donald Trump tells the crowd, as he did on Jan. 6, ‘Fight like hell, or you won’t have a country anymore,’ he meant for them to ‘fight like hell.’”
At the White House, Biden said he believed “some minds may be changed” after senators saw the security video, though he has previously said that conviction was unlikely.
Though most senators sat riveted as the jarring video played Wednesday in the chamber, some shaking their heads or folding their arms as screams from the video and audio filled the Senate chamber, most of the jurors seemed to have made up their minds. And by Thursday, as the House case wrapped up, many seem to be prepared to move on.
“I thought today was very repetitive, actually. I mean, not much new. I was really disappointed that they didn’t engage much with the legal standards,” said Republican Sen. Josh Hawley of Missouri.
The presentation by Trump’s lawyers is low-risk in one sense given the likelihood of acquittal. But it is also being closely watched because of an uneven performance on Tuesday when one defense lawyer, Bruce Castor, gave such meandering arguments that Trump himself raged from his home in Florida.
They are expected to highlight different parts of the same speech focused on by prosecutors, when he told supporters assembled at the Ellipse outside the White House to “fight like hell.”
They will contend that Trump in the very same remarks encouraged the crowd to behave “peacefully” and that his remarks — and his general distrust of the election results — are all protected under the First Amendment. Democrats strenuously resist that assertion, saying his words weren’t political speech but rather amounted to direct incitement of violence.
The defense lawyers also may return to arguments made Tuesday that the trial itself is unconstitutional because Trump is now a former president. The Senate rejected that contention Tuesday as it voted to proceed with the trial, but Republican senators have nonetheless signaled that they remain interested in that argument.
By Thursday, senators sitting through a second full day of arguments appeared somewhat fatigued, slouching in their chairs, crossing their arms and walking around to stretch.
One Republican, Sen. Jim Inhofe of Oklahoma, said during a break: “To me, they’re losing credibility the longer they talk.”
Republican Sen. Marco Rubio said the facts of Jan. 6, though “unpatriotic” and even “treasonous,” were not his chief concern. Rather, he said Thursday, “The fundamental question for me, and I don’t know about for everybody else, is whether an impeachment trial is appropriate for someone who is no longer in office. I don’t believe that it is. I believe it sets a very dangerous precedent.”