Trump’s Trial Brings a Reckoning Even If Acquittal Is Likely

(Bloomberg) -- Donald Trump’s second impeachment trial is almost certain to end in acquittal, yet it will deliver a public reckoning for his presidency and influence whether his populist supporters continue to dominate the Republican Party.

The nine House managers prosecuting Trump, arguing their case as much to the American public as to the senators who’ll serve as jurors, will focus on the most searing moments of the nationally televised Jan. 6 attack on the U.S. Capitol.

Still, even with evidence including video of the day’s violence and the fiery rhetoric Trump used to egg on his loyalists, the Democratic prosecutors face an almost impossible task of winning enough Republican votes to convict him.

Trump’s legal team is basing its defense on the constitutional question of whether a former president can be convicted of an impeachable charge, while also saying that his actions fell short of incitement and were protected by the First Amendment. Those arguments have already found favor with enough Senate Republicans to suggest Trump will escape conviction, as he did in first impeachment trial a year ago.

The televised proceedings are set to open at 1 p.m. Tuesday, creating an extraordinary confrontation likely to cement public attitudes on Trump’s behavior in office, pro and con, playing out at a time Americans normally would have turned their attention away from a defeated incumbent. Short of a conviction, Democrats will be looking to blunt Trump as a political force within the Republican Party, including his prospects for another White House run in 2024 and his ability to shape the lineup for the 2022 midterm elections.

For Republican senators, their votes on Trump’s culpability for the Capitol assault will follow them, potentially imperiling them with Trump loyalists in party primaries or with the centrist suburban voters who often decide general elections. Divisions within the party over the impeachment flared last week as Trump loyalists unsuccessfully sought to oust third-ranking GOP House leader Liz Cheney for having supported the impeachment article -- one of ten Republicans to do so.

Senate Democrats are sure to be unanimous in their votes to convict Trump. House managers, led by Representative Jamie Raskin of Maryland, haven’t yet said whether they’ll seek witness testimony.

Won’t Testify

Trump’s team already rejected a demand by Raskin that the former president testify on his actions surrounding the events.

“We will prove at trial that President Trump’s conduct was indefensible,” Raskin said in a statement after Trump’s refusal. “His immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt.”

Trump attorney David Schoen said his team is preparing arguments to answer the charge, but that it’s hard to plan because Senate leaders haven’t yet determined the rules and format for the trial.

“We have no agenda, we have no rules, we’ve been waiting, waiting, waiting,” Schoen said. “We’re planning as well as we can based on the briefs in the case, but we don’t know how it’s going to proceed at all.”

Asked on Fox News on Friday night whether the defense will show video such as Democrats failing to speak out against Antifa, the loose collective of left-wing activists, Trump attorney Bruce L. Castor Jr. said, “you can count on that,” and that he’s been “looking at a lot of video the last several days.”

Election Question

Trump parted ways with his former attorneys and named new lawyers just a week ago, after he reportedly wanted his defense to argue that the election was stolen. But while the lawyers’ formal answer to the impeachment charge defends Trump’s false claims that fraud cost him a landslide victory, Schoen said he doesn’t plan to use election fraud as a defense.

“I’m not arguing that,” Schoen said of election fraud. “I don’t think it’s relevant to these proceedings, one way or the other.”

Members of both parties have suggested they want a quick trial. Republican leaders are anxious to avoid political damage from bringing prolonged attention to Trump’s role in the riot, in which five people died, including a Capitol Police officer. And some Democrats want to avoid delaying confirmation of President Joe Biden’s remaining nominees and work on his $1.9 trillion Covid relief package.

But chances of a conviction are low, with 45 of 50 Republican senators having previously shown support in a procedural vote for Trump’s argument that the trial is unconstitutional. At least 17 GOP senators would have to vote to convict for the necessary two-thirds majority.

‘Courage or Cowardice’

“The whole world were witnesses to this,” House Speaker Nancy Pelosi told reporters last week, referring to the events of Jan. 6. The impeachment managers will make their case in the court of the Senate “and in the court of public opinion,” she said.

“We’ll see if it’s going to be a Senate of courage or cowardice,” Pelosi added.

The trial will be held in the same Senate chamber that members fled a month ago, minutes ahead of invading rioters demanding a lynching of then-Vice President Mike Pence. The entire Senate will be ordered to sit silently at mahogany desks during arguments, a bit of pageantry familiar to most Americans after Trump’s first impeachment trial a year ago. Instead of Chief Justice John Roberts presiding, though, the Senate’s president pro tempore, Democrat Patrick Leahy, will hold the gavel.

Yet key details of the proceedings -- including how long each side will be given to present its case -- are unresolved. Democratic and Republican Senate leaders are still negotiating procedures.

Security Cordon

Heavy security will engulf the U.S. Capitol, where the sense of threat persists. Three-quarters of Americans say they’re concerned about more violence by extremist groups emboldened by last month’s attack, according to a Quinnipiac University poll taken Jan. 28-Feb. 1, though respondents only narrowly favored Trump’s conviction, by 50% to 45%.

Evidence from the House prosecution -- images of the crowds attacking police, guards barricading the door to the House chamber, a masked person in paramilitary garb roaming the Senate gallery with zip-tie restraints -- are a sharp contrast from that presented at Trump’s first impeachment. That case centered on accusations he held up foreign aid in order to extort help from Ukrainian President Volodymyr Zelenskiy in tarnishing Biden.

“Videos of Trump supporters storming the Capitol sear into our memories in a way that a phone call to a Ukrainian leader simply does not,” Republican pollster Whit Ayres said in an interview two days after the attack.

How the Senate handles the trial will also have a lasting impact in setting -- or blurring -- a line that presidents cannot cross in fighting an unwelcome election result or using the threat of mob violence to pressure Congress, said Jeffrey Engel, a presidential historian at Southern Methodist University and co-author of a book on impeachment.

“The only way that presidents in the future will think hard about where the limits to their power lie is if it’s a serious trial,” Engel said.

©2021 Bloomberg L.P.