*Published on 2/9/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig. Thank you for joining me. The response so far has been tremendous. Thank you to everybody who’s checked this out, really appreciate it. Now, today is opening day for the second impeachment trial of former President Donald Trump, although technically the trial has already started. If you remember two weeks ago, we had all these very serious ceremonial formalities.

So to bring you up to speed, about two weeks ago, we had the formal delivery of the one article of impeachment charging incitement of insurrection from the House to the Senate. Now you may have seen this on TV, this was the very solemn procession, when the team of nine House impeachment managers slowly, very slowly, walked that four-page document from the House, through the Capitol rotunda and walked it into the Senate. Part of me likes that, I like ceremony. I like the reminder that this is important. Part of me also was thinking, couldn’t you just email it over or PDF it or something. It seems a bit unnecessary to physically walk it over, but I get it. This is a big deal, and I think that was a healthy reminder that we don’t do this lightly.

Then the next day, the Presiding Officer was sworn in. Now, that’s Senator Patrick Leahy, we’ll discuss him more in a bit. And all 100 senators were sworn in. They all stood up, raised their hand and took the oath to do impartial justice. And I got to tell you, I kind of wish they had cameras up close on these senators as they took that oath, to do impartial justice. Because look, it’s nice that we talk about impartial justice, but let’s be real here. This is not a trial jury. This is not a criminal jury. This is not a civil jury. This is a political jury, but this is very different from a courtroom jury. And I do think that several of these senators are still genuinely undecided about what they will do.

Now, how is this trial going to go? We are finding out now what the rules will be. The trial will kick off today, Tuesday at noon, we will have a four hour-long debate on the constitutionality, whether it is constitutional to impeach and to try a former official. We are going to talk about that in more detail. Tomorrow, at the end of that debate, there will be a vote. I think it’s fairly clear that the vote will be, it is constitutional, but of course, those who vote, it’s not constitutional, will be tipping off their hands at a minimum as to where they may come out, ultimately.

Then, starting on Wednesday, again at noon, the House impeachment managers, the people who will be prosecuting this case, will have a total of 16 hours to prosecute their case. Now, it doesn’t have to be in a row. They’ll probably break it up between Wednesday and Thursday and then former President Trump’s team will also have 16 hours to put on his defense. So I think that’ll take us into Friday.

Now, with things about to kick off today, I thought it’d be useful to do a who’s who. Who will be the key players, who are we watching for? And I break that into three main groups. First of all, Senator Patrick Leahy. Now, you may be wondering What happened to the Chief Justice, John Roberts? He was up there presiding last year. Well, things have changed a little bit since then. See, the constitution tells us that when the president, the president is tried, the Chief Justice shall preside. Last year, of course, Donald Trump was the president, but now he’s a former president. So the Chief Justice does not have to preside.

Now we don’t know exactly how this went down. Did the Senate ask or invite Roberts and he declined, or maybe the Senate didn’t even bother to ask him, either way Roberts is out. And that really left two options. It could have been Vice President Kamala Harris in her constitutional role as President of the Senate. Remember the vice president goes in and breaks ties. That would have been messy for everybody involved, including for the vice president. You can imagine all the potential conflicts of interest and appearances of conflicts of interest. And so they ended up going with Pat Leahy, a Democratic Senator from Vermont, the longest serving Democrat, currently the president pro tempore. I think this decision probably played out about as well as it could have for all involved.

By the way, a little footnote, you may be wondering will Senator Leahy also vote, because he is a senator? The answer is almost certainly yes, which is bizarre to have somebody presiding over the trial and then voting on the outcome.

Second, the House impeachment managers. Now these are the members of the House of Representatives who will essentially be prosecuting this case against Donald Trump. There are nine of them, all Democrats. And I have to say, nine is silly. You don’t need nine. And this case is, if anything, less complex than last year. And also for reference, just for reference, back when I was a prosecutor at the Southern District of New York, the most prosecutors we would ever have, even on the most complicated case, far more complicated than this one even, would be three prosecutors.

Couple notables things about the House impeachment managers team. They’re all lawyers, all nine of them. Nine for nine, which I think is interesting. Tells you they’re going to try to take a lawyerly, a litigious approach to this case. Some of them are former prosecutors. Eric Swalwell was a prosecutor, Stacy Plaskett, I find this really interesting, she was an Assistant District Attorney in the Bronx. So she was doing tough cases every day on the front lines, I’m sure, knowing what Bronx DA’s do. She’s now the Representative from the Virgin Islands. And then Ted Lieu was in the military JAG corps. So he did rotations through trial assignments. And then David Cicilline, another member of the impeachment managers team, was actually a public defender, which I think is also very important, relevant experience.

Now, the lead House impeachment managers’ Representative, Jamie Raskin from Maryland. And I think he could emerge as really the most compelling figure in this. Representative Raskin endured an unimaginable family tragedy just weeks ago when he lost his son who was a law student at Harvard Law School. And Jamie Raskin has really born that with remarkable grace and courage so far. And it seems he has used the pain as a drive for the effort that he’s involved in now.

Rep Raskin:

I’m not going to lose my son at the end of 2020 and lose my country and my Republic in 2021. It’s not going to happen.

Elie Honig:

Interestingly, Representative Raskin has never been a prosecutor or even a trial lawyer. He’s a long-time constitutional law professor. But I think in this case, teaching skills are actually going to be really valuable. Maybe even more so than trial skills, because the key here is going to be synthesizing and explaining and making this digestible for the American public.

The third group of people to watch, former President Trump’s defense lawyers. What a saga this has been. Last year, we had the generally well-respected establishment-type lawyers, Pat Cipollone, Patrick Philbin, and I’ll try to be nice, the less credible, more ego maniacal types, Alan Dershowitz and Ken Starr. They’re all gone now, nobody is back. Then, briefly this year, a couple of weeks ago, we had this team of lawyers from South Carolina led by an attorney named Butch Bowers. And they looked impressive. Several of that team were DOJ alums. There was an ethics expert in the group. Well, they didn’t last long. There was some combination of a dispute over fees. What a shocker. Can you believe there was a fee dispute with Donald Trump? And there was a dispute over strategy. It was reported that President Trump wanted these attorneys to make the stolen election argument and that they refused and parted ways.

And now we’ve got this team of two, perhaps a dynamic duo, I guess we will see. David Schoen and Bruce Castor. Now, neither of them are familiar names on the national stage, but look, plenty of very good lawyers are not nationally known, but we are starting to get some early indicators about their performance. I would say the indicators are mixed so far. Now Schoen practices in the New York, New Jersey area. I actually know lots of people who’ve dealt with him on cases. The consensus I’m getting is he’s a decent guy, a decent attorney. I’ve heard he’s quirky, unusual. He’s not seen as the absolute cream of the crop, but he’s also not an outright joke like a Rudy or a Jenna Ellis.

Now Schoen is a long time civil rights and public interest criminal defense attorney. He’s had some interesting clients over the years. He represented the KKK on a free speech case. He’s represented various mobsters, actually. I never ran into him in the cases I was prosecuting. He briefly represented Roger Stone and he consulted with Jeffrey Epstein about potentially taking Epstein’s representation, just shortly before Epstein died in prison.

Then you’ve got Bruce Castor. He’s a veteran attorney, he’s a former District Attorney from Pennsylvania, since then, he’s been a criminal defense attorney. Most famously when he was a DA, at one point, he declined to prosecute Bill Cosby, obviously a controversial move that looks horrible in retrospect. He gave an interesting quote the other day, he said, quote, “I’m not Ken Starr or Alan Dershowitz. You’re not going to get a law professor’s explanation. I’m a guy who gets up in court and talks.” So I guess we will see about his performance.

We did get a glimpse with the initial briefs that these two lawyers have submitted. I’ll just say, it’s not great. The briefs are messy. They’re disorganized, there’s typos, spelling errors and the arguments, which we’ll discuss a little more on tomorrow’s episode, they’re not super compelling. Two things jumped out at me about the briefs we’ve seen so far from Trump’s team. First of all, they have kept the door open, just a crack, to this stolen election argument. I think if they pursue that argument on the floor of the Senate, it is completely self-destructive to their cause. It’s one of the few ways they can actually turn the tide against themselves.

The other thing that jumps out at me is that in the brief they submitted yesterday, the very first point they make is to blame people with, and I quote, Trump derangement syndrome, for this whole thing. That is not a serious argument. That’s not the kind of argument you make, if you’re looking to build credibility for yourself, that’s lashing out. That’s a Trumpian approach to lawyering. Look, the path is wide open for these guys, not known on the national stage to win. All they have to do is keep 34 of the 50 Republicans on board. That should not be a heavy lift, but if they go down this path of stolen election and Trump derangement syndrome, that could really be risky. That could really be them pushing their luck. This acquittal is sitting there for these guys, but it’s not a sure thing. And if they go off the rails, this one could end up a closer call than anyone expects.

So here we go. Finally, into the trial itself, starting today. Watch it if you can, it should be on TV. It should be interesting, but if you’ve got real life to tend to, I hear you. Don’t worry. I’ll check it out for you. I’ll fill you in tomorrow. So tune back in tomorrow, we’ll recap day one of the impeachment trial, and we’ll look ahead today two.

Thank you for joining me on Third Degree. I’m Elie Honig. Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.