*Published on 2/10/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig.

Welcome back, everybody. We are officially into the 2021 impeachment trial of former President Donald Trump. Day one was Constitution day, it was scholars day, it was framers of the Constitution day. We heard four hours of argument on the Senate floor. I’m going to boil it down for you here.

I found that the arguments on day one were actually surprisingly compelling. Maybe that’s me being a legal nerd, but I found it to be really an interesting study in lawyering style and argumentative technique. Heading into today, I honestly expected it to be a fairly high level, substantive exchange between two teams of highly qualified lawyers. Turned out I was half wrong.

The part I was right about was the House impeachment managers. We really saw some truly high level, elite lawyering and advocacy. Representatives Raskin, Neguse, Cicilline. I want to tell you, that is high-level stuff. That is the caliber of lawyering that I got used to from my years at the SDNY.

Now, why? What made it compelling to me? Their presentations were focused, they were concise, they were visceral. They used the video, I think, really effectively to appeal not just to the audience’s mind, but also to the gut. And even, dare I say, mildly entertaining. They moved it crisply. I think it was engaging. I think it was really effective advocacy.

Now, on the other side of things, President Trump’s lawyers, I had never seen these guys in action. I just have to tell you my candid reaction. What a disaster. First of all, Bruce Castor, who led off, I don’t know exactly what he was going for. I think he was going for some kind of folksy… And look, a little personal touch is fine. It’s good.

But the whole first 30 minutes of his argument were all about him, and his sort of extemporaneous thoughts on good government at a very basic, Schoolhouse Rock level, with all sorts of cliches, and bromides, and seventh-grade level stuff about what the Senate does. Honestly, it was cringe-worthy, it was embarrassing, it was completely ineffective. Here’s one moment that I just had to laugh out loud from.

Bruce Castor:

Congress shall make no law abridging all of these things. That’s because those were the things that were of concern.

Elie Honig:

And then David Schoen took over. Schoen’s first half was essentially the same as we saw from Castor, but louder. Until the very end. Really it took until the fourth quarter of Trump’s attorneys’ presentations until they got to any substance whatsoever, and it wasn’t particularly compelling.

On the question, is it constitutional to impeach and/or try a former official? Let me say up front, we don’t have a definitive answer. There’s just never been a Supreme Court ruling on this. The Constitution doesn’t specifically tell us.

But let’s be clear. That does not mean this is a 50/50 issue. Yes, there are two sides to this dispute, but that doesn’t mean those two sides are equal. And I’ll tell you my verdict, having read up on the issue and watched the arguments, is that it’s fairly clear that, yes, you can try a former official. You must be able to try a former official in our system. And I think the best argument we heard there came from Representative Raskin on what he called the January exception.

Rep. Jamie Raskin:

… you can suddenly do in your last few weeks in office without facing any constitutional accountability at all. This would create a brand-new January exception to the Constitution of the United States of America.

Elie Honig:

Now, more important than my verdict, was the Senate’s verdict. And the Senate voted on this. 56 senators said, “Yes, it is constitutional,” and 44 said it’s no. Now, that was a change of only one senator from that original procedural vote a few days ago on Senator Rand Paul’s motion. All 50 Democrats voted yes, along with six Republicans.

Now, does this mean the trial’s over? I mean, 44 senators voted no, it’s not constitutional. Are they automatically going to vote not guilty? Not necessarily. Look, of those 44 senators, no doubt many of them already have their minds made up. But it absolutely could be, and it would be intellectually honest to say, “Okay, I voted this was not constitutional. But guess what? The Senate found that it was. So the trial’s happening, and now I need to make a separate, independent decision about the merits of the case.”

So now that we’re through the heavy constitutional law stuff, it’s on to the heart of the trial itself. On day two today, the House managers will now have 16 hours to present their case to convict Donald Trump. Don’t worry, it won’t be 16 hours straight. They’re going to start at 1:00 PM. I imagine they’ll go about eight hours each of the next two days, or close to that.

Now, the House managers have some important strategic decisions to make. And I’m looking at this from my point of view as a former prosecutor, and I’m sure the managers are, too. Several of them are former prosecutors or criminal defense attorneys. So here are three key tactical decisions that the House managers have to now make as they start to present their case.

First of all, will we see any new evidence? To be clear, we don’t have to see any new evidence. There’s no requirement that the House managers show us anything new. And what we’ve already seen in the public realm I think is plenty compelling. But the House managers are creating a certain expectation here. There’s been plenty of reporting that the managers have new evidence, and that it’s stunning, and that the case is overwhelming. We’ll see. There’s a little bit of a danger that they’re raising expectations too much.

But the big question to me is, if there is new evidence, and I’m sure there will be, will it be different in kind from what we’ve already seen, or is it just more of what we’ve already seen? Which again, I believe is compelling enough. Donald Trump’s statements, the videos of the riot, the aftermath. But I think if we’re waiting for some new smoking gun, or some a-ha moment that we haven’t already seen, I don’t think we’re going to see that. Or more precisely, actually, I think we already have seen that.

Number two. How do the House impeachment managers keep Donald Trump’s conduct in proper perspective? Here’s what I mean by that. Let’s do a little mental exercise. What if the Capitol siege never happened? What if everything happened the same, but the mob just went down to the Capitol, and rather than ransacking the place, all they did was hold up signs, and chant, and then go home. Totally different story, right?

Or is it though? Let me ask you to think about this. In normal times, normal times, think of any president from your lifetime, either party, other than Donald Trump. What if after that president’s first term, he lost the election, and then spent the next few weeks falsely claiming he had won? And then he pressured state-level officials to change the results. And then he pressured the vice-president, his own vice-president, to exceed his legal authority and overturn the outcome.

Wouldn’t that alone, even without the violence that followed here, wouldn’t that alone be impeachable? Shouldn’t it be? And again, this is pre-Donald Trump, whatever president you may choose. My point here is, the House managers have to bring us, bring the American public, the audience, back to some sense of normalcy, of what’s okay.

Here, not only do we have an attempt to subvert the election, which I believe in and of itself would have been impeachable pre-Trump. But on top of that, his people stormed the Capitol, they tore it up. People died, a police officer was killed. That happened. But the challenge is, I think we as the American public are already sort of getting used to it a bit. We’ve seen those clips so many times, and they’re just not as shocking anymore.

So the trick for the House managers is going to be to bring it all back. And I think they did a really good job of that on day one with some of the videos they put together. Watching those videos during day one I think really brought a lot of us back to that day. They’re going to have to keep up that sort of visceral appeal.

Third. Will the House impeachment managers call live witnesses to testify? Now, that decision’s down the line a bit, they’ve agreed to put it off after we get through the opening arguments. But I got to tell you, I’m getting a distinct vibe that the answer is going to be no. You see democratic members of Congress when they go on TV saying, “Well, we’re going to decide. Well, that’s really up to somebody else, that’s not up to me,” because it puts the Democrats in a little bit of a tough position.

Remember, last year during the impeachment trial, the Senate was Republican-controlled and they vote to have no witnesses, and Democrats went nuts. And so, I think democratic senators are starting to see that it’s going to be a little tricky to turn around now and say, “Well, now we don’t need witnesses.” Granted, that said, this year’s impeachment is different from last year. The factual scenario is just different.

So, I think the better point that we’re going to start to hear is that there’s already ample evidence in the public domain. In other words, I think you’re going to hear Democrats start to say, “Well, what’s really missing if we don’t call live witnesses? We have Donald Trump’s own statements in public before, during, and after the riot. We have the videos. We’ve seen those videos, we’ve seen the violence, we’ve seen the bloodshed.” And I think more of those will emerge.

So, essentially it seems Democrats are lining up behind, “This is enough. This is more than enough. What else do we need? Why get into a drawn-out trial with witnesses?” And by the way, this is an area where both parties seem to be united. The Republicans seem to not want witnesses either, I think for different reasons. I think they don’t necessarily want to hear what those witnesses have to say.

So, the witness issue is a big one. It’s on hold for now. We’re going to first do the arguments for both sides starting today. Then we’re going to get into a question and answer period from the senators. And then the Senate will take up this question of whether to have witnesses. But my gut is both sides will say they don’t need or don’t want witnesses. We shall see.

So thanks again for joining me. I’ll keep on watching what happens today. If you can, great. If you cannot, no worries. I will, and I will report back to you tomorrow. This is Third Degree, and 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 Weiner. 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.