Graham focused on the idea that Trump’s defense would then call witnesses that could reinforce that certain elements of the Capitol siege planned and coordinated the attack beforehand.
“There’s mounting evidence that the people came to Washington preplanned the attack before the president ever spoke,” Graham said. He added: “If you open up that can of worms, we’ll want the FBI to come in and tell us about how people preplanned this attack and what happened with the security footprint of the Capitol. You open up Pandora’s box if you call one witness.”
This is a strategy that has been floating around in conservative circles for weeks. The suggested implication: If these people preplanned it, that means they couldn’t possibly have been incited by the president. (“If these federal law enforcement agencies had prior knowledge that this was a planned attack then POTUS didn’t incite anything,” Donald Trump Jr. claimed a few weeks back.)
It’s the very definition of a straw-man argument.
As I wrote a couple weeks back, this pretends the case against Trump is something other than what it is. While the impeachment article against Trump does prominently feature his Jan. 6 speech to the rally that preceded the storming of the Capitol, neither it nor the argument Democrats have been making is focused solely on that. Instead, the argument is that Trump incited people over many weeks with baseless claims of a stolen election.
Here’s what the impeachment article says (key parts bolded):
President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.
Whether you agree that what Trump did amounts to incitement or not, it follows very logically that such incitement would not come instantaneously from a single speech — and almost necessarily so. Indeed, practically speaking, it would be very difficult to make that happen. Radicalizing people to rise up against their government is an involved process. And the underlying motivation of those who stormed the Capitol — that they believed the election was stolen — was seeded and cultivated for many weeks.
One thing the impeachment article doesn’t mention — and perhaps should have — is Trump’s history of toying with or suggesting violence by his supporters and allies. But that seems likely to figure prominently in the looming trial.
Graham’s warning about witnesses came around the same time Schoen made a similar argument on the same channel. Schoen’s argument was also curious.
Speaking to Sean Hannity, Schoen suggested that, if witnesses are called and evidence is presented, Trump’s team might call Democratic senators to testify as well.
“I would say you also should be able to call, then, many of the senators as witnesses because of the awful bias and prejudgment they’ve shown,” Schoen said. “Can you imagine any American citizen considering it to be a trial in which the judge and jury has already announced publicly that the defendant must be convicted in this case?”
The first point here is that the parallel to a regular jury trial only goes so far. In a regular trial, jurors who prejudge a case would indeed be cast aside. But in cases of impeachment, there can only be one jury: the full Senate.
Senators do take an oath to “do impartial justice according to the Constitution and laws.” But how they interpret that for themselves in such cases is largely an open and untested legal question.
What’s more, the argument that Democrats are somehow biased could just as easily apply to Republicans. While many Democrats have already said they will vote to convict, many Republicans have also prejudged the trial for themselves. According to The Washington Post’s whip count, 40 Democrats have indicated support for conviction, and 37 Republicans have indicated opposition.
This also came up at Trump’s last impeachment trial, when then-Senate Majority Leader Mitch McConnell (R-Ky.) flat-out admitted that he wouldn’t be impartial.
“I’m not an impartial juror. This is a political process. There’s not anything judicial about it,” McConnell said at the time. “I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”
Would it be better for senators to hold their powder and actually wait for the trial to play out? Undoubtedly. It does undercut the process, especially given — unlike in Trump’s first impeachment — the House didn’t hold lengthy hearings on whether to impeach. We haven’t seen much evidence formally debated. We are still learning a ton about just how this went down, including what was happening behind closed doors in the White House and just how much overlap there was between the Trump team and the organizing of the Jan. 6 rally. Just like Democrats should perhaps be open to some kind of evidence emerging that could absolve Trump of culpability, Republicans have to know there could be evidence presented that might more directly implicate him.
But that’s also the point of what Graham and Schoen are doing. Republicans have spent precious little time defending Trump by actually vouching for his conduct for a reason: because they recognize it was problematic, at the least. Many have faulted him for what he did and didn’t do, even if they don’t necessarily believe it amounts to incitement. Among them are McConnell and Sens. Ted Cruz (R-Tex.) and Tom Cotton (R-Ark.). It’s completely understandable why they wouldn’t want to have a lengthy debate about all of this. To the extent there is a substantial trial, they’d rather make it about whether it’s constitutional to impeach a former president or how divisive it is or various forms of whataboutism. Calling witnesses who would delve into the merits makes that more difficult, because it forces things toward the substance.
But the threats they’re making don’t actually seem to amount to much. It’s possible Democrats will opt against an extensive trial, but that seems more likely to be motivated by not wanting to bog down the Senate in the early days of Biden’s administration rather than being scared of who could be compelled to testify.