Tonight the charge of incitement was formally presented to the Senate, tomorrow the jury will be sworn, and then … we wait. Trump gets an official summons, then he gets to respond to the charge, then House Dems respond to that, and then the proper trial kicks off on February 9.
The outcome of the trial isn’t in doubt. The Senate will acquit, almost certainly with less than 10 Republicans voting yes. Electoral reality is what it is. The suspense has to do with the substance of the prosecution and defense. How broad will the scope of the House’s case be? Will it be a narrow dissection of what Trump said to the crowd at the rally on the morning of January 6 or will it be a more comprehensive indictment of the months-long “stop the steal” campaign? Will this be part of the case, for instance?
In his last weeks in office, former President Donald Trump considered moving to replace the acting attorney general with another official ready to pursue unsubstantiated claims of election fraud, and he pushed the Justice Department to ask the Supreme Court to invalidate President Biden’s victory, people familiar with the matter said…
Senior department officials, including Mr. Rosen, former Attorney General William Barr and former acting Solicitor General Jeffrey Wall refused to file the Supreme Court case, concluding that there was no basis to challenge the election outcome and that the federal government had no legal interest in whether Mr. Trump or Mr. Biden won the presidency, some of these people said. White House counsel Pat Cipollone and his deputy, Patrick Philbin, also opposed Mr. Trump’s idea, which was promoted by his outside attorneys, these people said.
“The pressure got really intense” after Texas’s garbage lawsuit got nowhere with the Supreme Court, said one DOJ source to the WSJ. Does Trump pressuring his own Justice Department to file a dubious politically charged lawsuit amount to “incitement”? Nah, of course not, although it’s certainly corrupt. But does Trump’s insistence on pursuing a claim deemed baseless by his own deputies tell us something about how far he might have been willing to go to stop Biden, possibly up to and including inciting a mob to stop Congress from certifying the electoral college’s votes?
Yeah, I’d entertain an argument about that if I were a juror. Just like I’d happily sit through testimony from the likes of Jeffrey Clark and this tool to gauge whether the president was prepared to wreck his own Justice Department in order to cast doubt on the legitimacy of Georgia’s election results.
As I say, there’s also some suspense about the scope of the defense. Presumably Trump’s lawyers will try to narrow the scope of the inquiry to his precise words on January 6, noting that he never told the crowd to behave violently (although he did tell them to go to the Capitol) and then issued more than one video in the days following urging people not to be violent. But the temptation for him to try to litigate his voter-fraud suspicions will be enormous. Rudy Giuliani, who’s not on the defense team — I think — was prepared to go full conspiracy crank at the trial if given the chance. Trump ally Rand Paul was quizzed yesterday on ABC whether he thought Biden won legitimately and was cagey even now:
“What I would say is that the debate over whether or not there was election fraud should occur, we never had any presentation in court where we actually looked at the evidence,” he began. “Most of the cases were thrown out for a lack of standing, which is a procedural way of not actually hearing the question. There were several states in which the law was changed by the secretary of state and not the state legislature.”
Calling that unconstitutional, Rand said that there’s “still a chance that those [cases] actually do finally work their way up to the Supreme Court. … Were there people who voted twice? Were there dead people who voted? Were their illegal aliens who voted? Yes, and we should get to the bottom of it.”
That’s a cute answer inasmuch as there’s some amount of voter fraud in every election. What he was being asked, though, was whether he had reason to believe the election was stolen, i.e. whether fraud had happened on a scale sufficient to affect the outcome. He wouldn’t give a straight answer. I wonder how far Trump’s lawyers will go in making insinuations along those lines and what effect that’ll have on Republican votes. Probably none. Anyone who ends up voting no was going to vote that way for electoral reasons no matter what, regardless of whether they’re annoyed by the “stop the steal” propaganda.
I think the most interesting part of the trial, though, will be the testimony of rioters, assuming Dems are able to introduce any into evidence. The lawyer for the “QAnon Shaman” has been clear about wanting to pass the blame for his client’s criminal behavior onto Trump:
“Let’s roll the tape. Let’s roll the months of lies, and misrepresentations and horrific innuendo and hyperbolic speech by our president designed to inflame, enrage, motivate,” said Watkins. ” What’s really curious is the reality that our president, as a matter of public record, invited these individuals, as President, to walk down to the capitol with him.”…
“[My client] regrets very very much having not just been duped by the President, but by being in a position where he allowed that duping to put him in a position to make decisions he should not have made,” said Watkins.
Not everyone in the building that day was as gonzo and seemingly nonthreatening as the “Shaman.” The FBI has evidence that militia members were part of the crowd and had planned to storm the Capitol. One participant was receiving Facebook messages about the location of members of Congress while the attack was in progress. “All members are in the tunnels under capital seal them in. Turn on gas,” read one. We might be hearing about that at the trial too.
I’ll leave you with this, the scene in the Senate at around 7 p.m. ET.
House Impeachment Manager @RepRaskin reads the Article of Impeachment in U.S. Senate.
— CSPAN (@cspan) January 26, 2021