1. Democrats’ appeal to emotion
Democrats have decided to move things on a fast track, including likely not calling any witnesses. The best evidence, they maintain, is what has already been established — on video and otherwise — showing what happened before and during the Jan. 6 storming of the Capitol.
Their early argument was heavy on that. To begin the debate over the proceedings, lead impeachment manager Rep. Jamie B. Raskin (D-Md.) played a 13-minute video recapping the ugly scenes of Jan. 6. The video, which cable news and broadcast networks played in full, featured violent conduct and rhetoric, extensive vulgarity and even video of a Capitol rioter, Ashli Babbitt, being shot to death.
Raskin later closed by recounting his own experience during the Capitol siege, citing “a sound I will never forget: the sound of pounding on the door like a battering ram, the most haunting sound I ever heard.” He mentioned the deaths and many injuries that occurred that day, and officers who took their own lives in the days afterward. He cited an officer who was “tortured” with an American flagpole. Raskin, who buried his son around the time of the Capitol siege, broke down repeatedly while recounting these things.
It was unquestionably moving.
The question before the Senate, though, isn’t about whether what happened on Jan. 6 was bad. It’s whether Trump incited it, as the impeachment article alleges. The 13-minute video showed some of Trump’s comments, including clips of his speech from a rally just beforehand, and his mealy-mouthed comments in the hours after it began. But it didn’t dwell too much on how Trump might actually have fomented the scenes.
Trump’s team countered that such emotion shouldn’t obscure the culpability question. Trump lawyer Bruce L. Castor Jr. began his remarks by commending Raskin for his presentation and personal reflection, but arguing that emotion shouldn’t define the response.
“It’s natural to recoil. It’s an immediate thing that comes over you without your ability to stop it — the desire for retribution,” Castor said. “ ‘Who caused this awful thing? How do we make them pay?’ We recognize in the law … [that] we have a specific body of law that deals with passion and rage, blinding logic and reason. That’s the difference between manslaughter and murder.”
There is little doubt that whatever Democrats put forward won’t be compelling to enough Republican senators, or at least the 17 who would be needed to convict Trump. All but 13 have already signaled they support Trump’s acquittal. But there is a real question about just how compelling it is to the broader American public. Polls show Americans favor his conviction, but only marginally.
And there is indeed a difference between saying “this thing involving Trump and his supporters was bad” and “Trump incited this thing.” The onus will be on Democrats to prove the latter.
2. The Trump team’s head-scratching opening
I wrote earlier Tuesday about how Trump’s team probably didn’t need to do much to actually succeed in this case. I also wrote about how their brief filed Monday didn’t exactly suggest a coherent and well-considered case.
The first comments from his legal team didn’t do anything to correct that impression.
After initially dealing directly with Democrats’ arguments, Castor was all over the place. He tried to work the refs by sympathizing with senators who might have competing motivations in their upcoming votes. The comparison between manslaughter and murder for Trump’s conduct was perhaps ill-advised, given both involve culpability.
But more than anything, it seemed to be an exceedingly off-the-cuff commentary on the issues at hand. And Castor often struggled for specifics. One of the most notable examples came when he recounted a politician — he wasn’t sure who it was, where they served or when it happened — but he was sure that their apology for their comments was unwarranted:
I saw a headline: Representative So-and-so seeks to walk back comments about — I forget what was, something that bothered her. I was devastated when I saw that she thought it was necessary to go on television yesterday or the day before and say she needs to walk back her comments. She should be able to comment as much as she wants, and she should be able to say exactly how she feels. …I don’t expect and I don’t believe that the former president expects anybody to walk back any of the language. If that’s how they feel about the way things transpired over the last couple of years in this country, they should be allowed to say that. And I will go to court and defend them if anything happens to them as a result, if the government takes action against that state representative or that U.S. representative who wants to walk back her comments ...I have no problem going into court and defending those things, even though I don’t agree with them.
Got that? Me neither. Castor had notes, which makes it perplexing that he didn’t offer any specifics. But even so: What? He seemed to be arguing that a politician can say whatever they want regardless of the impact, even as there are well-established limits on speech, including incitement and defamation. (Trump’s lawyers have taken care not to delve into that meddling issue.)
While Castor also tried to empathize with senators facing a tough choice, including his home-state Sen. Robert P. Casey Jr. (D-Pa.), he also took time to target a GOP senator who seems inclined toward convicting Trump: Sen. Ben Sasse (R-Neb.).
“But Nebraska, you’re going to hear, is quite a judicial thinking place. And just maybe Sen. Sasse is on to something,” Castor said. “You’ll hear about what it is that the Nebraska courts have to say about the issue that you all are deciding this week. They seem to be some pretty smart jurists in Nebraska, and I can’t believe a United States senator doesn’t know that.”
Castor added, apparently referring to Sasse’s censure by the state GOP: “He faces the whirlwind, even though he knows what the judiciary in his state thinks.”
Maybe Sasse wasn’t a winnable vote, but again, it was certainly a weird strategy.
And Trump allies acknowledged it as such.
“I’ve seen a lot of lawyers and a lot of arguments and that was — that was not one of the finest I’ve seen,” Sen. John Cornyn (R-Tex.) said.
Cornyn’s Texas colleague, Sen. Ted Cruz (R), said he didn’t think they “did the most effective job.”
Sen. Lindsey Graham (R-S.C.) called the Trump team’s case “OK,” but added that “it took a long time to get to where I think the meat of the question is.”
Sen. Bill Cassidy (R-La.), who cast a key vote to move forward with the case, was blunter. After criticizing Trump’s lawyers, he was asked what he thought was so terrible about it. Cassidy response: “Did you listen to it?”
A Trump ally familiar with the legal strategy told The Washington Post that Castor’s presentation was meant to lower the temperature in the room after Raskin’s presentation “before dropping the hammer.”
David I. Schoen, Trump’s other lawyer, offered a more detailed legal case about the issue at hand, repeatedly calling it a “snap impeachment.” He was also much harsher about Democrats’ motives, concluding by suggesting this was somehow an effort to negate the votes of Trump’s supporters (even as those votes objectively counted in the election).
“The singular goal of the House managers and House leadership in pursuing the impeachment conviction of Donald Trump is to use these proceedings to disenfranchise at least 74 million Americans with whom they viscerally disagree and to ensure that neither they nor any other American ever again can cast a vote for Donald Trump,” Schoen said.
3. The key vote
The day concluded with a significant vote on whether the Senate had jurisdiction to hold this trial. The result indicated Trump’s conviction is no more likely today than it was yesterday.
Previously, 45 of 50 GOP senators voted that the trial was unconstitutional. That was somewhat surprising given some voting that it was unconstitutional had previously expressed reservations about Trump’s conduct, such as Senate Minority Leader Mitch McConnell (R-Ky.).
The vote Tuesday, though, was pretty much the same. Only one Republican voted that the Senate had jurisdiction after previously voting the trial was unconstitutional: Cassidy. McConnell voted that it didn’t. In the end, 44 GOP senators voted not to move forward.
Cassidy had previewed such a vote this weekend, indicating he was still open to hearing the evidence. He also suggested the previous vote was a hasty one in which senators didn’t have a chance to fully digest the arguments. And the Trump team’s performance didn’t do much for him.
That apparently only applies to Cassidy (who was quickly rebuked by his state GOP for his apostasy). And while his vote is significant as a senator from a very conservative state, it still leaves Democrats needing the votes of 11 Republicans who voted that the Senate didn’t even have jurisdiction to try a former president in the first place.
4. Democrats cite conservative scholars
One of the most compelling arguments about the issue at hand on day one — the constitutionality of proceeding with the trial — came from Rep. Joe Neguse (D-Colo.)
Neguse cited the opinions of several conservative legal scholars and a past Trump impeachment witness assuring that impeaching — or at least trying, as the Senate is now doing — a former president is constitutional.
Neguse delved deep into the opinions of Reagan administration solicitor general Charles Fried, former federal judge Michael McConnell, Federalist Society co-founder Steven Calabresi, renowned conservative lawyer Chuck Cooper and Jonathan Turley, whom Republicans called as a witness during Trump’s first impeachment.
Most interestingly, Neguse seemed to allow that there could be debate about impeachment itself occurring for a former official, but cited Michael McConnell’s analysis that the House impeached Trump when he was still in office, and thus that the Senate is tasked with holding a trial.
“We laid it out step by step so that you could consider it, and so that opposing counsel could consider it as well,” Neguse said of the impeachment managers’ brief last week. “We received President Trump’s response yesterday, and the trial brief offers no rebuttal to this point — none. And in fairness, I can’t think of any convincing response. The Constitution is just exceptionally clear on this point.”
The Constitution might not be as clear as Neguse argues — even some of the men he cited acknowledge this situation isn’t directly addressed, nor have courts ruled conclusively on it — but he’s right that Trump’s team hasn’t dealt with this head-on. Instead, its brief Monday cited people who don’t actually agree with their conclusions.