The real strategic virtue to the GOP of voting en masse (if not unanimously) for Rand Paul’s point of order this afternoon is that it might discourage House Dems from pursuing a lengthy trial with lots of evidence. If you know that you stand no chance of conviction, and you also know that every minute spent on the trial is a minute not spent negotiating a COVID relief package, what incentive do you have to put together a comprehensive prosecution against Trump?
Besides the truth, I mean. You could do it to tell the public the truth about the “stop the steal” campaign. But that’s a lot of valuable governing time devoted to a persuasion effort that’s unlikely to persuade most people in a hyperpartisan era.
Let’s say they do it, though, believing that the gravity of what happened at the Capitol on the 6th requires more than a pro forma effort at conviction. What sort of evidence would be most damning to the public and therefore most likely to make recalcitrant Republicans squirm? What’s the hardest thing you could hit Republicans with?
It’s this. From the January 7 edition of the Washington Post, the day after the attack:
As rioters broke through police barricades and occupied the Capitol, paralyzing the business of Congress, aides said Trump resisted entreaties from some of his advisers to condemn the marauders and refused to be reasoned with…
“He was a total monster today,” this official added, describing the president’s handling of Wednesday’s coup attempt as less defensible than his equivocal response to the deadly white supremacist rally in 2017 in Charlottesville…
Aides and a range of lawmakers begged Trump to call on his supporters to stop rioting at the Capitol. Some former aides echoed those pleas on Twitter, tagging the president presumably in hopes he might see their messages…
“He didn’t want to say anything or do anything to rise to the moment,” the official said. “He’s so driven by this notion that he’s been treated unfairly that he can’t see the bigger picture.”
That’s who Dems want, the guy who told WaPo that Trump was a “total monster.” They want firsthand eyewitness evidence that he was reluctant to help members of Congress even as he watched his fans smash up the place on live television. They’re not going to convict him regardless, but they’d make it very painful for the GOP if they had testimony of an aide to the former president alleging depraved indifference to the lives of legislators while they were under siege. No one can prove what he intended when he told people at the rally to go to the Capitol but his refusal to intervene immediately after the attack had begun suggests that he wasn’t upset to see his fans take the effort to block Biden’s certification into their own hands.
The trick for House Democrats is finding an eyewitness who was around Trump that day and convincing them to cooperate, without the need to subpoena them and force a lengthy court battle to try to compel testimony. Is there one brave man or woman in the know who’s willing to testify now, understanding that their “betrayal” will make them a target of threats and abuse from Trump’s most crazed fans? We’ll find out:
Even without witnesses, Democrats are considering using evidence from video and social media to help illustrate how Trump’s words, actions and tweets motivated the rioters to attack the Capitol, the sources say…
“I think that the core of this case is Trump’s incendiary and inciting words, the words out of his own mouth,” Connecticut Democratic Sen. Richard Blumenthal told reporters. “But his intent to do harm, to cause injury and maybe even death may come from witnesses who were with him when he was watching the assault on the Capitol. So witnesses can corroborate and powerfully document what we know but they need to prove.”
One complicating factor for the House impeachment team is whether potential witnesses would be willing to be called — particularly those who were in the White House. The House impeachment managers want to avoid any kind of court fight over witnesses like the House had to deal with during the first impeachment of Trump.
Would executive privilege bar testimony by aides of a now former president? If Rand Paul wants to argue that the trial’s unconstitutional because Trump’s no longer in office, Dems could as easily argue that Trump’s communications with aides are no longer privileged for the same reason so long as they didn’t involve classified information.
Even if they can’t convince aides to testify, we’re going to see a lot of this — a tweet sent while the attack was ongoing:
— John McCormack (@McCormackJohn) January 13, 2021
Mike Pence’s life was in danger at that point from a mob that had already been chanting about hanging him. Trump seized the opportunity to throw more fuel on the fire instead of dousing it before aides finally convinced him to put out a video urging people to avoid violence. Dems are going to start collecting statements from news reports too quoting rioters who claimed afterward that they did what they did because they felt directed to do so by the former president. “You’re being told, ‘You gotta fight like hell,’” a lawyer for one man accused of throwing a fire extinguisher at cops told the NYT, referring to Trump’s rhetoric. “Does ‘fight like hell’ mean you can throw stuff at people? Maybe.” And of course we’re apt to hear the audio of the famous phone call with Brad Raffensperger, just to show how far Trump was willing to go to try to overturn the election. If he was willing to lean on Georgia’s secretary of state in his desperation to block Biden’s victory, does that tell us anything about his intent at the rally on January 6?
Actually, there is one person who’d make an interesting witness whom we also know is willing to attend the trial. That would be … Ben Sasse, who’ll be there in his capacity as a juror. But remember that Sasse also had some explosive second-hand allegations about Trump’s behavior on January 6, which he relayed to Hugh Hewitt in an interview two days later. Citing conversations with senior White House officials, Sasse told Hewitt that “As this was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building,” adding that Trump was reportedly “delighted” by what was happening. Would the Senate allow Sasse to testify about that hearsay evidence? A lawyer friend says yep, because it’s an admission against interest by a party’s agents. Imagine Ben Sasse on national television claiming that he has it on good authority that Trump was pleased as punch about the whole riot. It’s amazing that that won’t move Republican votes to convict, but it may move public opinion. That’s all Dems can reasonably hope to get out of this now.