The closing arguments were done, a last-minute attempt to call witnesses had collapsed. It was time for the final vote in former president Donald Trump’s second impeachment trial. The nine House managers all found a spot on the Senate floor as the clerk read out the names of each senator and their vote.
“Mr. Burr. Mr. Burr, guilty.”
Standing on the Republican side of the chamber, Rep. David N. Cicilline (D-R.I.) felt a flash of hope. Sen. Richard Burr (R-N.C.), a longtime conservative, had gone against Trump.
“It gave me a moment of, ‘We’re going to convict this guy,’ ” Cicilline recalled later in an interview.
The moment quickly faded. Within minutes, the verdict was in. The Democrats had fallen 10 votes short of a finding that Trump incited the Jan. 6 attack on the U.S. Capitol. Even GOP senators who had been noticeably shaken by new video and audio footage revealing the extent of the violence that day rejected conviction. Many of them cited the argument — contested by most scholars — that it was unconstitutional to take such an action against a former president.
Until Trump’s acquittal, many on the House impeachment team had been driven by a surprising sense of optimism that they could win over 67 senators — despite all the political evidence to the contrary. It was an outlook fostered by their leader, Rep. Jamie B. Raskin (D-Md.), who rallied the group of lawmakers with exhortations that democratic principles would prevail, and the words of Shakespeare and Founding Fathers such as Thomas Paine, the inspiration for the name of his late son. It drove his 11th-hour attempt to bring in witnesses to speak to Trump’s state of mind, a gambit that startled Senate Democrats and Republicans alike and threatened to upend the trial in its final hours.
“Jamie Raskin wanted conviction and he believed in the power of the evidence and the law and, of course, in the argument,” said Rep. Madeleine Dean (D-Pa.), adding that the managers didn’t want to persuade only two-thirds of the senators to convict — they “wanted 100.”
In the wake of the trial, the notion that the House managers could have persuaded even 17 Republicans to convict Trump seems almost fanciful. But interviews with nine people involved with the House team’s efforts show how much that sense of possibility undergirded their endeavor.
The goal on the first day of the trial: to move just a single Republican to go their way.
“We agreed that if we could convince one senator, it would be a watershed moment,” recalled Rep. Joe Neguse (D-Colo.).
So when Sen. Bill Cassidy (R-La.) changed his previously held position and cast a vote to support the constitutionality of the trial, crediting the managers’ compelling arguments, they were elated. It was just a procedural motion, and no guarantee of the final outcome. But it was movement.
Neguse and Raskin disappeared into an ornate room just off the Senate chamber that managers used as an office during the trial, where Neguse gripped Raskin’s shoulders in a brief, celebratory gesture.
“One down, 44 to go,” Raskin said to Neguse, a reference to the 45 GOP senators who previously had voted to declare the trial unconstitutional.
A collaborative approach
The team Raskin and House Speaker Nancy Pelosi (D-Calif.) assembled to take on Trump’s second impeachment trial was, at its core, a group of constitutional idealists. Six of the nine managers knew one another as members of the House Judiciary Committee; of those, none had been in Congress for more than three terms. Several had requested to be impeachment managers during Trump’s first trial. In 2017, Raskin had led more than 200 congressional Democrats to court when he was a first-term congressman, suing Trump for violating the Constitution’s emoluments clause. They ultimately lost, for lack of standing.
In the months before the riot, Raskin and Neguse had been closely tracking the former president’s efforts to undermine the electoral college vote as part of a four-person team Pelosi had tasked with designing contingency plans for the challenges they anticipated Trump might mount to the results of the 2020 contest. The other two members of that quartet — Reps. Adam B. Schiff and Zoe Lofgren, both California Democrats — had been managers in the previous impeachment trial.
Raskin took the reins of Trump’s second impeachment trial in the throes of mourning the loss of his son, Tommy, 25, who died by suicide on New Year’s Eve. The Raskin family had buried him just 24 hours before the siege on the Capitol.
At a lunch shortly after Raskin was named to head the team, Schiff said he asked him “whether he derived strength from knowing” that his son, an activist and lawyer in training, would have believed in the case he was about to bring against Trump.
“He said he would find himself thinking in endless circles without having the focus of the trial and the impeachment, and that he did derive a lot of strength from his son,” Schiff recounted. “Watching him during the trial, you could never imagine that he was going through such personal torment, because I thought his performance was so flawless.”
While Schiff was already a cable news regular when he helmed the 2020 House impeachment team, Raskin was relatively unknown to the public. As the team got to work, he brought a collaborative approach to the task and an energetic optimism they found infectious, the other managers said. He consulted with legal experts, such as his former Harvard Law professor Laurence Tribe, and with the other managers and their tightknit group of advisers.
“Jamie had his hands on every aspect, every detail … but he never held anything for himself. He wanted to share everything,” Dean said.
Raskin “wanted to raise every one of our voices … on purpose, because he loved the diversity of us and our backgrounds and our experience,” she said.
The team of three women and six men included a son of Eritrean immigrants, a delegate from the U.S. Virgin Islands and a naturalized citizen born in Taiwan.
Unlike the first impeachment team, every member of Raskin’s squad had a law degree — although they had used them in varying professions. Dean and Raskin had been professors. Some, like Reps. Joaquin Castro (D-Tex.) and Diana DeGette (D-Colo.), had worked in private practice. And several had been prosecutors — including Stacey Plaskett, the nonvoting delegate from the Virgin Islands who had been a prosecutor in George W. Bush’s Justice Department, and whose breakout performance during the trial gave rise to an online fan base and an article in Vogue.
Raskin chose her for the team because he said he remembered her talent for argument when he taught her as an American University law student.
Plaskett said he ran the manager meetings — almost exclusively over Zoom, because of the pandemic — using the same Socratic method he used to teach her constitutional law class.
“These weren’t Zoom calls or meetings where it was just the lead manager pontificating,” she said. “The discussion would be teasing out ideas: ‘How did that sound? Let’s push that a little bit.’ ”
The managers knew the visceral video evidence they had collected would speak for itself. A large part of their discussions focused on how to make their legal arguments just as compelling. In other words, a teacher’s daily challenge.
On one of the team’s near-daily meetings, managers recalled, Raskin was toying with the idea of likening Trump’s efforts to whip up the anger of his supporters and then his silence as they rampaged the Capitol to those of a pyromaniac fire chief, who sets fire to a town and then refuses to dispatch the rescue engines. It might help illustrate, Raskin reasoned, how the former president’s actions were “far worse” than yelling “fire” in a crowded theater.
The managers helped him hone the analogy as a way to counter defense claims that Trump’s inflammatory comments on Jan. 6 were protected by the First Amendment.
“President Trump is not even close to the proverbial citizen in a crowded theater,” Raskin said on Day Three of the trial, citing Justice Oliver Wendell Holmes’s famous statement about the limits of free speech. Rather, Raskin compared Trump to a “municipal fire chief who incites a mob to set the theater on fire, and not only refuses to put out the fire, but encourages the mob to keep going as the blaze spreads.”
Seeking GOP support
On the afternoon of Super Bowl Sunday, the House managers gathered in the Judiciary Committee offices for their only in-person practice run before the trial. It was the first time the group viewed the body-camera footage that showed how the mob outside the Capitol beat a police officer, at one point even striking blows with a pole flying the American flag.
A hush fell over the room. Some managers put their hands to their mouths, taking in the horror. According to several people who were there, shock soon gave way to anger, as somebody muttered that the assault was “medieval.” Surely, more Republican senators, upon seeing this footage, would vote to convict, they reasoned.
The following day, the House managers visited the Senate chamber to get their bearings before the trial opened. Raskin was the first to approach the lectern and test the microphone levels. But instead of the standard, “testing, one, two, three,” he began to recite from memory the opening paragraphs of “American Crisis,” the pamphlet series Paine wrote during the American Revolution.
“These are the times that try men’s souls,” Raskin intoned. “The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman.
“Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.”
It was the same passage that George Washington chose to inspire his beleaguered troops shivering on the banks of the icy Delaware River in 1776. As Raskin spoke, the chamber was largely empty, other than the House team, the Senate floor staff, and a group of Capitol technicians installing sound and video cables.
Many had been inside the building during the attack four weeks earlier. The room quieted as they listened, rapt.
For the most part, the trial went as the managers anticipated. Raskin gave the constitutional overview, laying both an emotional and legal foundation for the case. Neguse outlined the overarching structure of the House argument. Reps. Ted Lieu (D-Calif.), Eric Swalwell (D-Calif.), Castro and Dean took senators through the president’s tweets and statements chronologically, illustrating how he had put the election, the courts, members of Congress and ultimately his vice president in the crosshairs of his supporters. Plaskett and Swalwell guided senators through the introduction of the footage — video that drew tears to the eyes of many in the room. And Cicilline, DeGette and others argued that Trump’s actions had done the country irreparable harm.
The Trump team responded by calling the House lawmakers hypocrites for suggesting that Trump’s exhortations to his followers to “fight” were any more incendiary than the use of that term by Democrats.
Trump attorney Michael van der Veen told senators: “They’ve created a new legal theory: the Raskin doctrine … based on nothing more than determining protected speech based on the party label next to your name.”
Raskin shrugged off the personal jab. “If that is the Raskin doctrine, that a president of the United States cannot incite a violent insurrection against the union and the Congress, then I embrace it, I take it as an honor,” he said. “Most law professors never even get a doctrine.”
Throughout the five-day trial, there were clear signs of how difficult it would be to move Republicans — even after the House managers played the scenes of the violence in the building and police officers under assault.
“I’m impressed with the presenters,” Sen. Rob Portman (R-Ohio) said of the House team that day, but added: “I think it’s a bad precedent to be convicting former presidents.”
The House managers kept looking for ways to strategically gain Republican votes. In his final argument, Neguse deliberately sent coded messages designed to appeal to Senate Minority Leader Mitch McConnell (R-Ky.), including references to former senator Henry Clay of Kentucky, a hero to McConnell, as well as former senator John Sherman Cooper (R-Ky.), his role model. He alluded to the Senate’s historic vote to impose sanctions on South Africa for apartheid, noting that two unnamed senators in the room supported the move. One was Sen. Patrick J. Leahy (D-Vt.) and the other was McConnell. In his research, Neguse had found that one of McConnell’s first major Senate floor addresses was about apartheid.
The determination by Raskin and his team to push at every possible opening led to the most chaotic moment of the trial.
Off the floor, the managers were beset with indecision in the final days about one major unanswered question: Should they seek to call witnesses? Senate Democrats and Republicans alike had shown little appetite for extending the trial.
But an 11th-hour move by Rep. Jamie Herrera Beutler (R-Wash.) settled the matter.
In a statement Friday confirming a CNN report, Herrera Beutler said that House Minority Leader Kevin McCarthy (R-Calif.) told colleagues that when he spoke to Trump during the riot and asked him to call his followers away from the Capitol, the president responded: “Well, Kevin, I guess these people are more upset about the election than you are.”
The implication was startling — a chance to present evidence from GOP lawmakers about Trump’s state of mind during the insurrection. Why the managers hadn’t uncovered Herrera Beutler’s comments previously remains unclear. She had been offering similar accounts to her constituents and the local Washington state news corps for almost a month, as she pointed out. Raskin said the managers were not made aware of her comments until the eve of the trial’s final day.
So on Saturday morning, instead of giving his closing argument, Raskin asked the Senate for permission to call witnesses, over the wishes of most Democrats in the chamber. Nevertheless, 55 senators said yes.
Trump’s lawyers were infuriated, insisting that they had been ambushed. They threatened to call hundreds of witnesses of their own. They argued that the last-minute sneak attack was proof that the House managers had run a shoddy investigation, denying the president his due rights in the process.
In the frantic few hours that followed, the flustered House managers scrambled to figure out a plan.
The team, led by Raskin and Barry Berke, a criminal defense lawyer who had been brought in to consult on both impeachments, considered their options — could they possibly get former vice president Mike Pence, or his chief of staff, Marc Short, to testify? The senators’ question-and-answer period had revealed that several Republicans were keenly interested in whether Trump had known that Pence was in danger when he jeered his vice president on Twitter during the riot. But after a number of phone calls Saturday morning, it appeared as though there was little chance that Pence or a member of his team would be a cooperating witness. And Trump’s attorneys had a list of their own. If the managers called in Herrera Beutler, they wanted Pelosi. If they tried for Pence, Trump’s team would call in Vice President Harris.
The House team was stuck: Any attempt to call witnesses could stretch out the trial indefinitely, as they knew from Trump’s first impeachment. An attempt to get the testimony of former White House counsel Donald McGahn for that proceeding is still tied up in court.
As they deliberated, Sen. Christopher A. Coons (D-Del.) entered the managers’ room and warned that any delay would cost Republican votes to convict.
The House team backed down. They agreed simply to read Herrera Beutler’s statement into the record, and returned to the chamber.
“None of us can escape the demands of history and destiny right now,” Raskin said in his closing argument to the senators. “ ’The times have found us,’ said Tom Paine, the namesake of my son. The times have found us. Is this America? What kind of America will this be? It’s now literally in your hands.”
Coping with loss
The final vote was 57 to 43.
No one took the outcome harder than Raskin, who looked crestfallen as the managers retreated to their temporary office off the Senate floor.
“He told us he feared he had let us down,” said one participant, who spoke on the condition of anonymity to describe the private moment, recalling how the team gathered around Raskin after the vote. “He has such faith in the system and in the power of the case we presented that he believed — until the very last moment — we might win.”
Inside the room, the members put their arms on Raskin, forgoing social distancing for a moment.
“Everyone made clear, one by one, that he had not let us down,” the person said.
“There has been a moral center to this case that has kept us going from the very beginning,” Raskin said in an interview. After the final vote, he said, he told the managers that of all the endeavors he had taken on in his life, he’d “never been part of a team that was so low-ego and so focused to a person on the collective work. It was remarkable and encouraging … and we all helped to make it a soaring case that really made the case to America.”
The House team also left an impression on those who disagreed with Raskin’s arguments. Former federal judge J. Michael Luttig, a leading proponent of the idea that it is unconstitutional to try a former president, praised the congressman, saying that he was “the maestro” of the trial and that “his conducting was nothing short of masterful.”
Now, Raskin is left to take stock of the outcome — and his own immense personal loss. Some of the managers have quietly agreed among themselves to regularly check in on him as the adrenaline rush of the trial subsides.
Raskin said, “I’ll probably spend the rest of my life trying to figure out this particular sequence and confluence of events. But I know that Tommy was with me in my chest and my heart from the beginning. So was the rest of my family and so was my country.”
Late on the night of the acquittal, Schiff — who suffered a similar defeat almost exactly one year earlier — sent him a message.
“Hopefully you’re sleeping the sleep of the righteous who have done a good day’s work,” Schiff recalled texting, about 11:30 p.m.
Almost immediately, he said, Raskin responded with thanks. He was still awake.
Editing by Matea Gold. Photo editing by Natalia Jimenez. Design and development by Tara McCarty. Copy editing by Carrie Camillo.