• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the arguments made by the House impeachment managers and former President Trump’s legal team during the Senate impeachment trial, the drama surrounding the debate over calling witnesses to testify at the trial, and the implications of Trump’s acquittal.

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

Doing Justice, CAFE

IMPEACHMENT TRIAL

Article I, Section 3, Clause 5 of the U.S. Constitution

Article I, Section 3, Clause 6 of the U.S. Constitution

Article I, Section 3, Clause 7 of the U.S. Constitution

1st Amendment to the U.S. Constitution

5th Amendment to the U.S. Constitution

“Incitement of Insurrection,” Article of Impeachment, 1/11/21

Guilty or Not Guilty (Article of Impeachment Against Former President Donald John Trump), U.S. Senate vote, 2/13/21

On the Motion (Shall It Be In Order to Consider and Debate Any Motion to Subpoena Witnesses or Documents?), U.S. Senate vote, 2/13/21

On the Motion (Is Former President Donald John Trump Subject to a Court of Impeachment for Acts Committed While President?), U.S. Senate vote, 2/9/21

On the Motion to Table (Motion to Table: Is the Point of Order Well Taken?), U.S. Senate vote, 1/26/21

“Brandenburg Test,” Cornell Legal Information Institute

“Cassidy Votes to Convict President Donald Trump,” Sen. Cassidy statement, 2/13/21

“Senator Burr Statement on Vote to Convict Former President Trump on Article of Impeachment,” Sen. Burr statement, 2/13/21

“Herrera Beutler Again Confirms Conversation with McCarthy Regarding January 6 U.S. Capitol Attack,” Rep. Herrera Beutler statement, 2/12/21

“I Will Vote To Impeach The President,” Rep. Cheney statement, 1/12/21

“Legal Scholars on a Senator’s Oath,” letter, 2/12/21

“Constitutional Law Scholars on President Trump’s First Amendment Defense,” letter, 2/5/21

“House Impeachment Managers Request Former President Trump Testify Under Oath Next Week,” Rep. Jamie Raskin, 2/4/21

“Pelosi announces plans for ‘9/11-type commission’ to investigate Capitol attack,” CNN, 2/15/21

“New details about Trump-McCarthy shouting match show Trump refused to call off the rioters,” CNN, 2/12/21

“Trump’s First Amendment defense relies on a core argument that has been discredited,” NYT, Trip Gabriel, 2/12/21

VIDEO: “McConnell’s full remarks following Senate vote to acquit Trump,” 2/13/21

VIDEO: “Trump Defense Attorney Shows Montage Of Democrats Using ‘Fight’ Rhetoric,” 2/12/21

Preet Bharara tweet, 2/10/21

NPR ALL THINGS CONSIDERED

“8-Year-Old Calls Out NPR For Lack Of Dinosaur Stories,” NPR, 2/9/21

The Senate Acquitted Trump, But He Isn’t Out of the Woods Yet

With the impeachment trial in the rearview mirror, prosecutors around the country have opened criminal investigations into former President Donald Trump’s conduct — and are considering bringing criminal charges against him.

After holding a week-long impeachment trial, the Senate voted to acquit Trump by a vote of 57-43. Preet and Anne break down the arguments made by both sides’ lawyers in the Senate trial, and the implications of Trump’s acquittal.

The trial had its fair share of drama when, on its final day, the House impeachment managers sought to call witnesses to testify before the Senate. Preet and Anne analyze the managers’ decision to stand down and move forward with the vote on conviction.

2/16/2021

Preet Bharara:

From CAFE, welcome to CAFE insider. I’m Preet Bharara.

Anne Milgram:

and I’m Anne Milgram.

Preet Bharara:

How are you Ann?

Anne Milgram:

Hey, it’s been quite a week.

Preet Bharara:

Since last week we spoke, the second impeachment trial of Donald Trump started, unfolded, and ended.

Anne Milgram:

I know. I feel like I was in an emotional washing machine or something during the past week.

Preet Bharara:

An emotional washing machine?

Anne Milgram:

I don’t know the right way to describe it, but-

Preet Bharara:

What’s the cycle on that?

Anne Milgram:

Yeah, it was a lot of agitation, but it’s been a lot of ups and downs too, right? I mean-

Preet Bharara:

Do you hang dry after that?

Anne Milgram:

I prefer to hang dry. I know it just felt like it was a crazy week. It feels like it was a lot longer than a week. I don’t know. At least that’s how I feel. I don’t know how others feel.

Preet Bharara:

Well, the way I feel is every day seems longer than a week.

Anne Milgram:

Fair enough.

Preet Bharara:

So, there’s lots of talk about, what the arguments were, how the vote came out, decisions people made, what the implications are, what the future is for Donald Trump being held accountable. Do you want to talk about just sort of quickly overall, I was very impressed with the quality of the house managers and their arguments. They were even better than I expected given the short timeframe they had to prepare and present, and much more so than the first Senate trial underwhelmed by the President’s lawyers.

Anne Milgram:

I’d agree on both. I thought that the house managers did a far better job this time, and I can explain why I think that. Also to be fair, they had an opportunity in the past year to learn from the first Trump impeachment trial. And so they got to see what worked and what didn’t, and you and I both know from having tried a lot of cases that there’s a lot to be said for experience and just watching something play out like this. And so they really had the benefit of that. But let’s break down-

Preet Bharara:

And brevity.

Anne Milgram:

And brevity. Yeah, let’s break down what they did really well. Just before I jump into this, it’s fair to say that they are two different cases in some ways. That the Ukraine affair, it was more complex. There were more pieces, not everyone had watched it on TV. Some people had watched the committee process in the house, but this is a very different. Nationally, January 6th was an event for all of us and we all watched it live on TV. So, there is a difference. But what the house managers did is number one, yes, brevity. But it’s more than just being short.

Anne Milgram:

They did a really good job of weaving a compelling and I think a very, very strong case. I think they did prove their case. They did that by using video, and audio and they used visualization so that they could show the president’s tweets, multiple tweets at the same time. They used the best type of exhibit, which was the video and the visualizations to be able to tell this narrative in a way that let them do it quickly and concisely.

Anne Milgram:

So, instead of standing up there and reading each tweet one at a time, they were able to put up on the screen, look, how do you know the President wanted this to happen on January 6th? Look at these four tweets. And so just as a matter of putting an evidence and being able to create a narrative that people could easily follow, no doubt about it, they did a much better job. I think also, and I’d be curious to hear you on this. In the first trial, Adam Schiff talked a lot. Representative Schiff, the chair of the Intelligence Committee. He was at that podium for hours. Here, I noted from the moment that the impeachment manager who was the lead, Jamie Raskin for Maryland, stood up. He was brief, he basically said, “This is about the facts. We’re going to show you the facts.”

Anne Milgram:

He shared time very equally with the other managers, but he tried to present the case, not all through his words, but very much through the visualizations and the way that they presented the evidence in a way that I personally thought was really effective, because you then don’t have the senator sitting there thinking, Oh, I like you or I don’t like you. And having that color the evidence because of how they felt about the person doing the presentation. It just felt to me like a much cleaner way to do it. So, instead of saying like, I’m vouching for the evidence here, it’s like, I’m showing you the evidence. I expect you to draw the same conclusion I’m drawing because I think it’s obvious, but it felt like a better way to do it. What did you think?

Preet Bharara:

I thought Jamie Raskin did an amazing job. I think all of them did a great job. I got in a mild bit of trouble on Twitter when I mentioned that I thought that the three standouts were Representative Raskin, Delegate Plaskett and Congressmen Neguse. People were saying, well, they’re all amazing. Yes, they were, but I think those three were extraordinary. If I can use your word?

Anne Milgram:

Please.

Preet Bharara:

In fairness to the house managers, the first time around, as you already said, it was much more complicated. I would dare to guess that if you ask the average person who was paying attention a year ago, and you said summarize in 60 seconds what the Ukraine case was about. It might be a little bit difficult to do it in 60 seconds. Today, or next month or a year from now if you ask people to summarize the second case, I think people would very easily be able to say, yeah, Donald Trump threw his words in conduct and omissions, incited a violence insurrection at the Capitol.

Preet Bharara:

And it’s much easier to understand, it’s much easier to visualize because you do have videos and you do have people speaking in their own words. Remember in the first trial relating to the Ukraine affair, we didn’t have audio of the critical conversation between Donald Trump and the President of Ukraine, or some of the phone calls that were talked about. It was complicated and a winding story, which may have necessitated a little more talking, a little bit more speaking. There was also more to talk because, I don’t know if it was more compelling evidence, but there was more evidence. There were multiple depositions taken behind closed doors, and then there were open hearings in the house on the impeachment inquiry. Then you had the trial.

Preet Bharara:

So, there was a lot more to deal with, there was a lot more to explain, there was a lot more to put in the minds of the American people. But yeah, I agree with you that this presentation was really strong. I think what they did an effective job of doing, and this was some of the back and forth between the house managers and the defense, the defense kept trying to make this a very narrow case, right? And that was in their interests to defend Donald Trump. You say, look, this case is about the words that Donald Trump spoke on the late morning or early afternoon of January 6th. Those words did not cause the insurrection among other things, they were already planning to engage in the insurrection. There was evidence that that was their intent even before they got to January 6th.

Preet Bharara:

Whereas the house managers, I thought did an excellent job of broadening the context and making it clear that over time, Donald Trump had fomented the insurrection by condoning violence, having opportunities to condemn violence and not doing it, being warned by lots of things, including the onslaught on the Michigan capital, including warnings given by the election official in Georgia.

Preet Bharara:

And by evidence that, the executive branch knew that people were thinking about violence and people were very angry. One of my favorite examples that they use and weave together was that incident with the Biden, Harris bus during the campaign. That supporters of Donald Trump tried to run off the road, a violent act, committed by people who were also involved in the insurrection months later. But about which Donald Trump not only said very little, the one thing he did do was tweet approvingly of it. And so I think the main point of the house managers were trying to make was this was foreseeable based on the conduct of the president and the speech of the president. And I thought that was powerful.

Anne Milgram:

Yeah, I agree. Just going back to the house managers for a minute and I want to spend some time in the defenses. One thing that I also thought that they did, which is really important when you try a real case, and I think in some ways they felt closer to me. It obviously is a political process and so it’s not like being in a trial. But one of the things that I repeatedly saw Raskin and the others do, and I thought they were all exceptional. But one of the things I saw Raskin do that I really appreciated is that he didn’t get caught up on every single lie or inaccuracy that the defense said. He really was able to keep his eye on, our job is to prove that the President incited an insurrection, our job is to stay focused on that.

Anne Milgram:

We’ll address the things we need to address. We’ll push back on the things we each push back on, but instead of getting into the food fight that could easily happen, and all of us understand with good reason, right? There were things that the defense lawyers were saying that were clearly inaccurate and could be infuriating, but at the same time, I thought they did a good job of really staying focused and their demeanor was such. It came across as much more factual and much less like it’s not that they weren’t impassioned, they were, they told their personal stories of that day. And obviously, they’re Democratic elected officials, but it just felt a little bit more arms-length to me. And I think that that’s a good tone when you’re trying the President of the United States. To your point, a couple of other things I would note, or criticisms or questions I have.

Anne Milgram:

And again, I want to say, I think that they prove their case. I don’t have any questions on that, and I think they did an exceptional job. The couple of things I’m curious about and would love to talk with you about is that they put a lot of new evidence in, and a lot of that evidence was really important. They had new videos, a lot of which showed just how close the rioters and interaction has had come to the Vice President, to Nancy Pelosi and her staff, to Chuck Schumer, to Mitt Romney. It was very compelling to watch the actual individuals, the rioters basically, be in the same picture frame as members of the United States Congress. They also had new evidence related to the rally on the Ellipse where they put in the evidence that showed that the permit for the rally ended up being that people could walk. It initially wasn’t approved as people walking from the Ellipse to the Capitol.

Anne Milgram:

So, that was new. I think there’s still a lot of unanswered questions about it, but that was new. And as you noted, they weaved in a lot. The one thing I would say though, is they put it all in on Wednesday and Wednesday was this incredibly powerful day and Thursday felt a little flat after that. And so in my mind, and again, I’m just looking at this as a trial analysis. I almost wish that they’d sort of been a little bit strategic about putting the new evidence in over the course of three days or at least the two days. I think it could have done a lot to keep that tempo up. And then the last question I have, which I think is sort of unanswerable and it’s really Monday morning quarterback, and I would not have thought this before. But when I was watching it, I think they made a decision to put everything in one, right?

Anne Milgram:

It was like they basically said, every single thing Donald Trump has done is incite to insurrection. Everything he did up until January 6th, and everything he did on the day of January 6th. And so in my mind, as I watched the trial, I felt like there were three buckets. The first bucket is the setup before the election that he was going to win, and that if he didn’t win, it was election fraud. Then the immediate aftermath of the election where this is his tone, and he’s going out and he starting the Stop the Steal rallies, and the conduct that that takes us through then. Then there’s a moment in December when this changes, because the last option that Trump has to try to overturn the election, which was fairly won by Joe Biden, by millions of votes. The last effort he has is this January 6th effort.

Anne Milgram:

And that’s when it shifts to the planning of the rally, the focus on the rally. Eric Swalwell, I thought did a good job following the money to show the Trump team’s support for sending text messages to a supporter saying, be there on January 6th, right? I thought that was really important evidence.

Preet Bharara:

$50 million spent.

Anne Milgram:

$50 million. And actually, that fact and the rally fact, the sort of permitting for the rally, those were two things that in my mind still stand out as, I want to know more about both of those. And then you have January 6th itself and what Trump does or doesn’t do that day. And that alone I think was really important. So, in some ways you could have almost charged it as three separate high crimes and misdemeanors. I’m not sure that would have been the right thing to do, but I do think that they lumped it all in. And I actually have to say, if I look back to the June tweets by Donald Trump saying, “We’re going to win this election. If we don’t win, it’s going to be fraud.” I don’t necessarily think at that moment in time it was foreseeable that January 6th would happen.

Anne Milgram:

I think January 6th was caused by the fact that they lost 61 of 62 cases. Trump thought he was going to be able to push the election officials. He was literally doing anything he could to overturn the election and retain power, and I think it evolved as time went on. So again, I’m really not being critical because I see the simplicity of having that one count. But I did see a lot of the Republican senators questions related to from the moment that this happened on January 6th and Donald Trump had the power to stop it. I guess I’m wondering and I guess the question for you is, do you think they would have gotten more votes from Republican senators if they charged a separate count for, forget who started it, assuming that that’s a separate count, from the moment it started the person who could have stopped it didn’t stop it?

Preet Bharara:

I don’t know. It’s hard to know and I think people’s views were fairly solidified, although, and we’ll talk about this, some people change their minds seemingly during the course of the proceedings, including one of the senators from Louisiana, Senator Cassidy. But there has been some talk about whether or not the house managers could have constructed an article of impeachment that revolved around the concept of dereliction of duty. Because there seems to have been, particularly at the end of the trial there was a moment of drama about whether they should call witnesses or not. that got to the issue of what Donald Trump didn’t do. Not just what he did do, but what he didn’t do after it became clear that there was bad violence taking place at the Capitol and people were being harmed, and he didn’t do his job. I think some of the most powerful evidence that in connection with this particular article of impeachment went to Trump’s state of mind, went to what was foreseeable, went to what he clearly must have desired given his reaction.

Preet Bharara:

He must have desired the insurrection and the stoppage of the counting of the votes at the Congress, because when it started unfolding and he is the President United States is getting informed that bad things are happening, he doesn’t stop it. He doesn’t make an announcement right away. Hours go by, he doesn’t really condemn it. When he puts out some statement later, he says, we love you, or I love you and you were patriots. That maybe would have been more powerful evidence in connection with an article that related to dereliction of duty. Because that he clearly did. He clearly didn’t do what the president should do.

Anne Milgram:

And I think the questions from the members, at least, Collins, Murkowski, Romney, they all went in this direction, Cassidy. And I think that they live through that day and that afternoon. And so it just feels to me like the challenge for a lot of the Republicans with the inciting and insurrection, and going back to the election fraud question is that, for them to vote for conviction, it felt to me like they felt like they had to repudiate Trump and the big lie, which they should have done, and I think we saw seven Republican senators do that. But it feels to me like it might’ve been a simpler question just to say, put the big lie aside for a second. From the moment this happened, these were Trump supporters. They had his flags, they had his hats, they were walking through the Capitol screaming Trump’s name, they were watching Trump speak at the rally at the time that they were going into the Capitol.

Anne Milgram:

From that moment and then Kevin McCarthy, the House Minority Leader, Republican leader, having that conversation with Donald Trump that was reported by CNN on Friday night, became the basis for calling Jamie Herrera Beutler as a witness potentially during the trial. that conversation where Trump basically says, “Maybe these folks are more worried about the election than you are Kevin.” That, and the tweet that Trump had after, it seems to me was proven that Trump knew that Vice President Mike Pence was potentially in danger and had been taken out. all of that feels to me like just a cleaner way to have basically said, however we got here from the moment we were here, there was a clear response that anyone who cared about the United States Congress and the institution, and took their oath as president seriously, they would have acted differently than he acted.

Preet Bharara:

Yeah. I guess one way of saying it is, it’s one thing to accuse a firefighter of committing arson at a house. Because that’s a little bit of a hurdle and people don’t want to believe that the firefighter would have done such a thing, and there’s maybe ambiguity in the conduct. That’s one thing and there’s a high burden. It’s quite another thing to show, well, regardless of who started the fire, whether it was arson or not, once the house was ablaze, we have evidence that the firefighter stood by and didn’t do anything. Even though they had equipment, even though they had authority, even though they had eyes and saw the flames going up to the sky, didn’t do anything. And I guess that’s kind of the being made. And maybe you could have had a second article of impeachment. I think at the end of the day, nothing would have changed the outcome, but it’s interesting to think about given the timing they had.

Anne Milgram:

It’s interesting too, because you and I have tried a lot of cases and it’s often the coverup, not the crime that gets jurors to vote to convict. And so here in some ways, I think that what felt to me like the more compelling evidence to the Republicans was that day and Trump’s reaction, versus the months before. I’m not saying that’s right. I think it would have been very interesting to have seen what would have happened if they’d given that count as well.

Preet Bharara:

First, before we get into the substantive defenses, I wanted to talk with you about this procedural/technical/constitutional argument. We don’t have to go through the substance again, we’ve done it a couple of times. And that is this question of whether or not it was even appropriate to try a president who’s no longer in office in the Senate. As we’ve discussed before, the weight of authority is on the side of being able to do so. Lots of scholars believe it was okay. The text instructor of the constitution says it’s okay. Among other things, this president was fully impeached while in office. One of the reasons why he wasn’t able to be tried while in office was that Mitch McConnell wouldn’t reconvene the Senate. But that said, they had a vote at the beginning of the trial before it commenced on the constitutionality of proceeding.

Preet Bharara:

And in that vote, it was 56, 44, I believe. And Senator Cassidy changed his vote from the prior vote a week before the trial. And so the question is, the Senate having concluded as a procedural matter, that it was constitutional to proceed. And there’s an argument Jamie Raskin and others made repeatedly. Now, senators could no longer consider the constitutional question. That’s decided, that’s behind us. Now when you vote at the conclusion of the trial, you have no choice, but to vote on the issue of guilt or not guilty. And you can’t rely upon that constitutional argument anymore because that’s been decided. And yet at the end of the trial, a number of senators said, “Yeah, the reason I’m voting this way is because I think it’s unconstitutional.” Most notably Mitch McConnell, who gave basically a house manager summation, but said, “Notwithstanding the fact that the Senate voted in a particular way, I am still holding to my position from before that it’s unconstitutional to proceed.”

Preet Bharara:

And I guess my response to that is not super interesting other than to say, notwithstanding the arguments of Jamie Raskin and others, and a whole bunch of legal scholars also put forward this point in a letter, senators can vote on any basis they want. Much like actual jurors, no matter how they’re instructed. But in this case, nothing you can do about it. If a senator decides, I don’t really want to face the music, I want to avoid getting into the substance of it. I don’t want to attack the president. I also don’t want to the president, but what I’m going to say is, as a strict constitutional matter, this was an illegitimate trial, no matter what Trump did and I’m standing by that. Don’t you agree?

Anne Milgram:

Yes. First of all, there were almost 200 legal scholars, conservative and progressive, and really formidable conservative legal scholars who came down very, very clearly on the side that the case could go forward in the Senate. Then the Senate voted for it to go forward. And what you and I both know and I think probably we’ve talked about this enough that folks understand it, but it’s worth just repeating again. In a court of law, a real court of law, not the United States Senate, which is really a quarter politics. But in a court of law, whether it’s civil or criminal, there’s a judge. And one of the things that the parties can argue is jurisdiction, which is the question of, can this court properly hear this case? And many times courts will say, yes, you can properly be here. And then that’s the end of that legal argument.

Anne Milgram:

That argument is not put before the jury. So, you would not be able to argue whether it was the proper court. There are things called jury nullification, for example, where a jury just basically feels like, I don’t think this law is fair, or I don’t want it to be applied here in this circumstance that I’m hearing about in the trial. But the actual legal question of, is this the right court to hear it? It’s considered purely a question of law and it would be handled by the judge, and the witnesses and the jurors would not talk about it or be a part of it. And so that is one of the problems with this being a court of politics, where there is no real judge. He did the procedures, but he’s not really ruling on these types of questions and what evidence can come in and what can’t. And so it’s a free for all.

Anne Milgram:

And it’s a free for all in a way that makes it seem to probably a large number of the American public, that that was a legitimate argument to be made. But I agree with you, that question was asked and answered both by bipartisan group of constitutional scholars, but also then by the US Senate and then the trial should have been, did Donald Trump do it or not do it? And of course, the senators are free to vote however they choose, but it did. And McConnell’s statement is fascinating because he basically agrees factually with the house managers on basically everything.

Anne Milgram:

And he was really clear in saying Donald Trump did it. And then he says, “But I think the better argument is that this is unconstitutional and so I’m going that way.” And it does feel, I think Joaquin Castro called it a technicality. It did feel like they were just, and you and I talked about this up front, this was also true. The first amendment. They were just looking for any shield to hide behind so as to not have to reach the real merits of the question.

Preet Bharara:

Yeah. So, McConnell decides essentially that the past managers have made out their case, but on this legal question, he couldn’t vote in favor of guilt. On the other side of the coin, you had Richard Burr, Senator from North Carolina, Republican Senator, who voted in the way as McConnell on the constitutional question, but then he cast his vote to convict and he puts it very clearly in his statement to the public, “When this process started, I believe that it was unconstitutional to impeach a president who was no longer in office.” I still believe that to be the case. But then Senator Burr did this thing that we’re saying the scholars recommended that the senators do. He said, “However, the Senate is an institution based on precedent, and given that the majority in the Senate voted to proceed with this trial, the question of constitutionality is now established precedent. As an impartial juror, my role is now to determine whether house managers have sufficiently made the case for the article of impeachment against president Trump.”

Preet Bharara:

And he said he found the president to be guilty. So, kind of an interesting legal, constitutional question. I think that Senator Burr thought about his duty and his role in the proper way, McConnell did not, but it’s of no consequence like so many other things in this trial, fairness and due process is not the same as you would find in a traditional trial. Actually, I want to ask you this question. Among the arguments made by the defense, were these sort of vague allegations that there was no due process. And I wonder what you think about that. Because yeah, there’s lots of ways in which this trial didn’t afford traditional due process, namely in the conflicts of interest on the part of every single juror democratic and Republican. In that context, to talk about due process and the failure to afford certain opportunities, does that argument fly at all?

Anne Milgram:

No, I think you’re right basically to point out that. And look, what Trump’s lawyers wanted to do was to argue that the Senate was a political body and made its own rules when it was convenient for them, and then to try to argue, what’s a regular court of law. But it’s worth noting on the due process argument that it really is a smoke screen, because there was a lot of process. They did get evidence, they got the exhibits, they got equal amounts of time. There’s a lot of ways in which you could argue that there was process, but again, it’s a Senate trial, they get to make their own rules.

Anne Milgram:

And perhaps more importantly, I think the stronger argument is that the due process clause does not apply. That it only applies to life, liberty, and property. And here, what we’re talking about is Donald Trump getting fired from his job and not being able to run again. So, he’s not being detained in a prison, he is not having his property taken. And so it’s one of those arguments that they make because on its surface, Americans have heard due process first amendment before, and so they’re sort of counting on that sort of connection that people think, Oh, everybody has a due process right. But the defenses here were basically like, throw everything at the wall and see what sticks, and that was one of the many ways in which they tried to do it.

Preet Bharara:

So, we should talk about one of the other defenses that Donald Trump’s lawyers brought up again and again, and I think it might be confusing for some folks. And that is the first amendment. I was struck by this letter, another group of scholars led by Floyd Abrams, probably the most preeminent first amendment lawyer in the country of the past generation or more, who usually argues for the expansive interpretation of the First Amendment. He’s a pro First Amendment guy. And he with other scholars point out that that provides no defense to this charge of incitement. First of all, you’re not accorded special privileges as the president to say anything you want and be shielded from impeachment. Words have consequences. And as you have pointed out many, many times, this is not a criminal case, it doesn’t involve the taking away of anyone’s liberty. People say things all the time that get them disciplined and they get them fired.

Preet Bharara:

In fact, Jamie Raskin, I thought had a very excellent riff at one point when he was talking about how many people in the Trump administration itself were fired or disciplined because Donald Trump didn’t like what they said. And this idea that a president of the United States could walk around and say things like, I pledge my loyalty to China, or Russia should invade the United States. If you or I said, perfectly protected speech. But if the present United States says it, I think that senators and members of the House would be galloping into the chambers to vote in favor of impeachment. And so this First Amendment argument and this reliance on that case that we’ve discussed before Brandenburg was largely a red herring.

Anne Milgram:

Yeah, I agree. And I’d add two points to that. I thought Adam Liptak, who covers the Supreme court for the New York Times, he did a good job of saying, “Yes, it’s true, of course, that elected officials have First Amendment rights. It’s also true that government officials may be fired for making statements that would otherwise be protected political speech, and an impeachment trial may present that second sort of question.” So, I think it’s both clear as you say that this is about a disciplinary process, essentially firing someone versus putting them in jail or incarcerating them in a criminal case. I also thought there were two other points on the First Amendment that were worth making. And one of them and you and I have talked a little bit about this, but I’ve prosecuted cases where, for example, it’s a robbery or an assault, and take a hypothetical where somebody it’s a knife point robbery where somebody has has a knife and says, give me your wallet.

Anne Milgram:

So, you’re using their words, give me your wallet, but they’ve got a knife, they’re menacing somewhat, there’s a whole course of conduct. And so that, in many ways, is akin to what the house managers, the case that they ultimately put in. They didn’t just rely on words. And so there’s the President’s tweets, there’s $50 million being spent to get people to go to the rally on January 6th. There is a clear indication that somehow the permit was changed pursuant to the White House’s wishes. Now, again, we don’t know exactly what Donald Trump’s role was, but this is about a lot more than just the words of January 6th. And you said earlier on that, what the defense was trying to do is they were trying to isolate really just to Donald Trump’s statement on January 6th, “If you don’t fight like hell, you’re going to lose your country.”

Anne Milgram:

So, it wasn’t even all of his statements on January 6th. They obviously, didn’t talk a lot about Trump saying, we’re going to the Capitol, let’s go to the Capitol and I’ll be with you, which I actually think is one of the more important points in the case against Trump. But there was a whole course of conduct here and I think it’s worth noting in the context of the first amendment that we do use people’s words against them. But again, this sort of, I think, threshold question and someone else said and I thought it was really profound was, you wouldn’t have a First Amendment right if not for the constitution itself. And what we’re talking about here is the President trying to overthrow the entire constitution. So, can he be impeached again? The answer is yes.

Anne Milgram:

But one thing I would note about the First Amendment, just to go back to this is that the first amendment due process, the constitutionality of the trial, these were all put up as ways to not address Trump’s behavior, they were also put up as ways to try to connect with people with something that they’ve heard of before, where they could in their own mind think, well, yeah, I have a first amendment right, I have a due process right. And so I think there was a little bit of that gamesmanship by the defense. Can I ask you one question about other defenses Preet? Because I felt like watching… I mean, there’s so much we could talk about with the defense lawyers. But one of the things they did when they got to the substance beyond arguing all this stuff about the first amendment, and due process, and constitutionality, is they really did what Trump’s defense lawyers had done during the first impeachment trial to a certain extent, which is they went back to the Trump greatest hits. They went back to making it a partisan political thing.

Anne Milgram:

The Democrats are doing this, the Democrats have tried to overthrow elections, and they were arguing that everything Donald Trump has ever said about the Democratic Party and its members is true. They didn’t argue the big why, but in some ways when you try a case, like they argued everything else Donald Trump said was true and then they left it for the senators who are the jurors to make a conclusion or decide on their own about the big lie. So, in some ways it was a really insidious defense that really troubled me. I think it got sort of dismissed by a lot of commentators as just the standard thing. But I personally felt like it was a really, really cynical and partisan defense that was meant to basically say what President Trump says is true, this is about the Democrats going after him, this isn’t about Congress in January 6th. I don’t know how you felt about that.

Preet Bharara:

Look, it’s not ineffective in a political context. I don’t think they did it effectively, but in general principle, it’s not necessarily ineffective to argue, look, the Democrats have been trying to get Donald Trump from the beginning and there were a couple of isolated instances of Democrats talking about impeaching Donald Trump right after he assumed office. I don’t begrudge them pointing that out. What I do begrudge was that ridiculous interminable montage of Democrats, and celebrities and other people saying the word fight as if the context in which those other people were saying the word fight, meant that Donald Trump’s used of fight multiple times on January 6th, was rendered innocent and not worthy of punishment. I thought that was insulting to people’s intelligence and I think a lot of people thought that.

Anne Milgram:

The only thing that I think is pretty notable is that the defense spent a lot of time on all these other things we’re talking about. They didn’t spend as much time as you would have expected arguing causation. And they did a little bit saying Donald Trump didn’t cause this, but that wasn’t their argument. It was a procedural argument, you shouldn’t be able to decide this because of the constitution and there are these protections due process and first amendment that apply. But it was a very short argument and there are a lot of things that they didn’t address. They didn’t really address the permit. They didn’t address the money that was spent to get people to the Capitol on January 6th. And so it was an impeachment defense, right? I mean, in a normal trial, that’s not how a defense lawyer would have proceeded.

Preet Bharara:

So, there was a bit of drama on Saturday morning and my view of how the house managers addressed it has evolved as more information has come out and as I’ve thought about it. So, woke up a little bit later than I wanted on Saturday morning to the news that there had been a vote on witnesses. And remember, there had been no witnesses at this trial and it’s kind of odd. Any trial that you and I are familiar with, there are witnesses. In fact, jurors are instructed that what the lawyers say is not evidence. Only what the witnesses say and the documents that come in are evidence. And at this trial, it was basically the lawyers talking and you can make an argument that there was very little evidence that was actually admitted at the Senate trial. So, there’s a vote that passes for witnesses.

Preet Bharara:

And then part of the team was texting about what our plans would be changing our recording plans, because if they’re going to have witnesses and there was some discussion of having a lot of witnesses, and then the Republicans said that they wanted even more witnesses, 100 witnesses or more, this trial would be going on for a long time. And my bias is in favor of more evidence, in favor of witnesses, notwithstanding the other business-

Anne Milgram:

Mine as well.

Preet Bharara:

Yeah, notwithstanding the other business that the Senate has to do, and it would have been interesting. And then that’s dash in minutes, when the House Democrats look like they’re only seeking the testimony of that Congresswoman Herrera Butler, who was privy to a conversation between Kevin McCarthy and Donald Trump on January 6th, in which the President made it very clear he didn’t care what was happening, he kind of liked what was happening on January 6th. And then that witness was never called. They agreed to a stipulation that she would testify in a particular way. The Republicans were not conceding the truth of her testimony, but that it could be admitted, and then they proceeded to almost immediately to a vote on conviction. And a lot of people were critical. I was critical privately with you and with our team initially. I’ve softened on that a little bit for a variety of reasons. And before I get to them, I’m wondering what you thought about that decision.

Anne Milgram:

Well, I’m probably aligned with where you are. I did think that they should have witnesses before the trial started. I thought it was a mistake the way that they’d done the rules, because there are just a lot of questions that we don’t have the answers to. And without witnesses, particularly when it comes to what Trump did on January 6th, it’s just incredibly difficult to be able to answer those questions. And so I was a believer that witnesses could be helpful, I do understand the institutional pressures were in the midst of a global pandemic. The economy is horrifically bad. And so I did think there was a way though, to balance those two things, to have some witnesses, but not have a month’s long trial. What I didn’t like about Saturday, and I would give a lot of credit to the house managers for having done an excellent job, but it was a little sloppy, the way it rolled out.

Anne Milgram:

And part of that, and you and I both tried a lot of cases. There are times where something happens unexpectedly. I’ve literally gone looking for witnesses in the middle of trial and asked the judge, can I have 15 more minutes to see if somebody walks in the door? So, trials are dynamic, but I think a couple things happen. One is that once they didn’t set it up to call witnesses at the beginning, and a lot of democratic senators didn’t want witnesses, they had a really high hurdle to get over to start calling witnesses. And the second thing is that the way they didn’t know where the support was or what the full number of votes would be. And again, I understand it’s a dynamic moment, but it did not look great to basically have a vote where you had a number of Republicans who had just asked questions about Trump’s conduct on January 6th.

Anne Milgram:

You had a number of Republicans asking those questions who vote in favor of having witnesses along with the Democrats only to come back with a sworn statement, going into evidence that maybe they should have asked for upfront instead of asking for her as a witness. The other piece of this is that as important as I thought representative Jamie Herrera Butler’s testimony was, she was relaying a conversation she had with Kevin McCarthy. So, the obvious evidence that you would want, ideally, would be McCarthy, either a written statement or in person. I mean, a written statement would have been the better, more likely way to have gotten it.

Anne Milgram:

I don’t want to hold it too much against them because I think these things are dynamic, and happen, and ultimately they did get her written statement, but I thought it could’ve been handled better. And I did actually think that there was evidence that would have been relevant. It may not have changed the minds of the senators, but I don’t think anyone went into this trial thinking that it was likely that Donald Trump was going to be convicted. We said clearly it was always going to be a high hurdle, and I think the trial was as much for us as Americans, us as the jurors, as it was for the senators.

Preet Bharara:

Yeah. There’s something else going on here too. I think maybe the mistake was optics and messaging, and a lot of people got their hopes up when they thought they were going to be witnesses and they got their hopes dashed when they entered into the stipulation. One thing that was going on apparently, was that they were looking for witnesses. They contacted some people who they perceived, correctly I’m sure, to be hostile to the house manager position and allies of the President who wouldn’t have been friendly, who weren’t going to engage in a pre-testimony interview, or who might’ve objected, and there would have been fights about that. And that is a problematic position to be in if you are trying to prosecute a case like the house managers were. And the second point that they’ve made, which I think they’re owed some deference on is, wasn’t going to change anyone’s mind if you had additional witnesses?

Preet Bharara:

And I know you and I think that that’s not the only purpose here, that the purpose is to establish the truth and make sure that there’s transparency and understand what’s going on. But at the time that would have gone by to try to compel some of these folks testimony, I mean, Delegate Plaskett has pointed out multiple times that they’re still in court in the litigation arguing over the testimony of Don McGahn, the former White House counsel to Donald Trump and the combination of factors. You didn’t really need it because we had overwhelming evidence. They were hostile and they weren’t going to be helpful at trial, anyway.

Preet Bharara:

The amount of time it might have taken to get this testimony, all of it combined to get them to be satisfied with this one thing they wanted, the introduction of this indirect evidence from Congresswoman Butler. There’ve been these swirling stories about whether or not there was pressure brought to Burr from the White House because they wanted to get on with their agenda or from Senate leaders, including Senator Schumer, because they wanted to get on with the agenda. The parties have all denied that was the case. So, I take folks at their word and that this was the house manager’s decision. I mean, Jamie Raskin said with some amount of feeling at their post acquittal press conference, that he made the decision, it was his call. It wasn’t Nancy Pelosi’s call or the leadership call and if there’s anyone to blame, it was him. And I accept that.

Anne Milgram:

Yeah, I do too. I would add two points. One on your point about messaging and how it was handled. I do think you’re right. Unless witnesses were willing to come, it would have been very, very difficult to get them in person. Whether you could have gotten a sworn statement or not, I think it would have also been very difficult in a number of circumstances. But one of the issues is that it looked like they didn’t try, right? And so in some ways, they’d invited Trump to testify before the trial began. And there was an argument, I think, that they should have invited Kevin McCarthy and Mike Pence, all of whom would have declined, but they would have at least made the effort to get that testimony about January 6th. Again, we’re sort of quibbling about something that I think it’s very fair the way they handled it and the decisions they made.

Anne Milgram:

I think it’s really hard to second guess them, because again, I think your read on the situation is right. There really wasn’t a path for them forward and you can’t put in an impeachment trial on hold for six months. And so that just wasn’t realistic. The other thing I’d say is that, one of the things that was reported over the weekend was that two of the Democratic senators Manchin from West Virginia and Angus King, he’s an independent from Maine, but votes with the Democrats, had said that they wanted there to be equal numbers of Democrat and Republican witnesses. And that made it partisan. And so instead of saying, we want all the witnesses who are relevant to be allowed to testify, sort of just saying, we get to call any two people we want and you get to call any two people you want.

Anne Milgram:

It would have added to the food fight aspect of this and it’s not clear to me that anyone would have been able to control this question of who has relevant information about what happened on January 6th. And so it might’ve been just spinning a little bit out of control to the point where Raskin, again, I said this at the beginning, I thought he did a really good job of staying focused on what the goal was. This was an instance where I think they wanted the evidence of the McCarthy call. They took what they could get. And in hindsight, I have softened on it too on Saturday. I thought it was like whiplash, right? Like we weren’t having witnesses that we were, that we were getting a sworn statement. It all felt a little bit odd. But in the light of day sitting here on Tuesday, I think it was the right call the way they ultimately did it.

Preet Bharara:

Yeah. Part of what was going on was the President’s side were saying, “You want witnesses? We want 100 witnesses.” And I think there were photographs of at least one Trump aide walking around with a long list that was visible to some folks. And I’m imagining, I don’t really mean it, but I’m imagining they had like Karl Marx on the list and George Soros on the list, And it was going to get to be a gigantic messy food fight. before we go, we should talk about the final vote. And I know some people are disappointed that Trump wasn’t convicted, but 57 votes is not nothing. It’s a majority, not a super majority.

Anne Milgram:

Bipartisan.

Preet Bharara:

The most bipartisan Senate conviction vote of any president in history. And in the process, by the way, McConnell didn’t vote in favor of conviction, but you had him basically saying the House had proven its case. He widely swung open the door to future criminal liability, that Donald Trump hasn’t gotten away with any of this yet. He said a very pointedly. That’s the number one Republican in the Senate. The number three Republican in the House, Liz Cheney, voted in favor of impeachment. And you had the Republican nominee for president before Trump, Mitt Romney, now Republican Senator, also vote in favor of impeachment. So, you have significant establishment figures who in one way or another have said publicly that Donald Trump was responsible for inciting a violent insurrection at the Capitol. That’s not nothing.

Preet Bharara:

Now, the question on McConnell, Nancy Pelosi got very mad at McConnell and understandably so, because notwithstanding the helpful things that he said, his vote was unhelpful, but I take what he said and I think it’s helpful to the cause of holding Donald Trump accountable in lots of different ways, including going forward. But it was the height of richness for him to say that the reason he was voting no on conviction was the trial didn’t happen while Donald Trump was in office. When it is the case, that part of the reason the trial didn’t happen when Donald Trump was in office, was that Mitch McConnell refused to reconvene the Senate, even after being asked to do so by then send it minority leader, Chuck Schumer. So, he’s responsible for that procedural problem.

Anne Milgram:

Preet, can I ask you a question?

Preet Bharara:

Yeah.

Anne Milgram:

So, what would have happened, and I sort of was playing this out a little. Could the house managers have conveyed the articles to the Senate when they weren’t in session, or in the two days before they went out of session? I mean, I assume that they-

Preet Bharara:

I don’t know. I don’t know that that changes anything because Mitch McConnell-

Anne Milgram:

Well, I think they should.

Preet Bharara:

… announced that-

Anne Milgram:

He might’ve dismissed them or had a vote saying that they weren’t constitutional. So, I think in some ways he might have held the cards, but I’m just sort of curious.

Preet Bharara:

I don’t know, but I think the point is, Mitch McConnell made clear that on his watch and at his discretion, there was no procedural way in which he was going to allow the trial to proceed while Donald Trump was president. And then to use that, so-called glitch, to vote no is kind of rich.

Anne Milgram:

Yes. And I agree that that’s why I think Speaker Pelosi was calling him out. I agree very much with what you said, his words were very strong and they were very clear in saying that Trump was responsible and he could have written in some ways the house manager’s closing. It was very thorough. It wasn’t one sentence saying, I think he did it. It was squarely laying the blame at Donald Trump’s feet. And again, the way he voted, he was trying to get his cake into eat it too. He wanted the ability to condemn Donald Trump’s actions as president and what happened on January 6th while not being responsible for actually leading to potentially the conviction. I mean, they already had seven votes without McConnell. If McConnell had voted to convict, it’s very possible that they would have gotten to the 67.

Anne Milgram:

They might not have, but in my view at least would have swayed a number of members. I think also that you’re right with your overall takeaway that, for the history books and for all of us, 57 votes is a majority of the United States Senate and it was bi-partisan. And it sends a very, very powerful message even though not the message I think that the house managers ultimately wanted, they wanted the conviction. But it also put out a lot of new evidence, Preet, that we hadn’t seen.

Anne Milgram:

And I think this is not over in the sense of Nancy Pelosi, Speaker Pelosi, the Speaker of the House has already announced that she’s going to introduce legislation to have an outside commission, not made up of members of Congress, but people outside of the House and Senate, to review what happened on January 6th. She’s already had a briefing from a former general who did a security assessment, but there could also be congressional hearings. Some of those have already started, but there could be additional hearings. And then there’s potential civil and criminal liability for Donald Trump and as we’ve already seen, for other individuals who were involved in the lay.

Preet Bharara:

Can we talk about the question that is top most on people’s minds probably? And that is not what’s going on in Georgia or in the D.C. Attorney General’s office, or even inside Vance’s office, the Manhattan District Attorney. But whether or not the Department of Justice, either at main justice or through the D.C. US attorney will see fit to investigate and prosecute Donald Trump for insurrection or a seditious conspiracy. I have no idea, but I think it’s important to point out that whether it’s possible or not, it will certainly be harder than presenting a case in the US Senate. And one of the reasons for that is that the standard is high, proof beyond a reasonable doubt, guilt beyond a reasonable doubt to a unanimous jury, not two thirds of partisan senators.

Preet Bharara:

And you can’t go about proving the case in the way that the house managers did, notwithstanding how good a job that they did do. You can’t introduce in your main case substantive point after substantive point for the truth of the matter being asserted, newspaper articles or videos from media outlets. You have to get the actual people who said the actual things, and you got to compel them to testify.

Preet Bharara:

And depending on who the people they want are, it’s not as hard as hapless Congress people trying to get people to come testify in some congressional proceeding, but it’s still a battle. And whether well-placed or not, there will be arguments about executive privilege, maybe even attorney-client privilege with respect to some of those witnesses around the President. I think some of the compelling evidence would be… and that was fought over and that we’ve talked about, was what was Donald Trump doing and saying on the afternoon of January 6th, after he knew the insurrection was taking place? You got to get those people and you got to get them into the grand jury. And then ultimately you got to get them into court. That’s not necessarily so easy. So, my question to you is, do you think that Merrick Garland, once he’s confirmed, assuming he is confirmed, will see fit as a preliminary matter to open up an investigation and take a hard look at it?

Anne Milgram:

So, there’s a couple of things I would add to what you said. The first is that the first amendment defense that Trump’s lawyers made at the Senate trial would be a legitimate defense to a criminal investigation for inciting an insurrection. And again, the question would be, were they looking at bringing charges solely based on Trump’s speech? Were there other that were taken by him? I mean, it’s more complicated than what Trump’s lawyers made it seem, but the Brandenburg test I think would apply, which is the standard first amendment question of political free speech vs speech that incites.

Anne Milgram:

And there that would have to have been essentially intentional. It would have had to have been likely to have caused the result it caused, and basically encouraging someone to engage in unlawful behavior. So, there are a lot of questions about whether they’re already civil suits being filed against Donald Trump, one from Benny Thompson from Mississippi, a member of the house of representatives. The NAACP has filed suit on behalf of Thompson against the Proud Boys and the Oath Keepers, along with Donald Trump and Rudy Giuliani charging a conspiracy under The Klu Klux Klan Act. Maybe we’ll talk about that more in future episodes, but I think this is just the beginning of what we’re going to see in terms of civil litigation against Donald Trump, and we’ll have to wait and see on the criminal investigations.

Preet Bharara:

So, can we end on something, we do podcasts and we try to inform the public in various ways. And there’s some other outlets that do it also. I believe NPR is one of those. And like us at CAFE, other outlets like it when they get questions and comments from listeners. We always want to get comments and questions from you guys at [email protected] But sometimes the show gets a missive that they weren’t expecting. And so recently, Anne and I heard about a story where a precocious eight year old named Leo Schindler wrote an email to the NPR show, a particular show, All Things Considered, criticizing them for failing to cover some issues. And do you want to read the email from Leo?

Anne Milgram:

Yes. “My name is Leo and I am eight years old. I listen to All Things Considered in the car with mom. I listen a lot. I never hear much about nature, or dinosaurs or things like that. Maybe you should call your show Newsy Things Considered since I don’t get to hear about all the things. Or please talk more about dinosaurs and cool things. Sincerely, Leo.” By the way, I would say-

Preet Bharara:

We’ll talk about penguins.

Anne Milgram:

… my six-and-a-half-year-old would totally agree with him. And I don’t make him listen to All Things Considered. We more listen to them [crosstalk].

Preet Bharara:

But sometimes just listen to CAFE Insider, right?

Anne Milgram:

Yeah, exactly. Or more likely things about Lego [crosstalk].

Preet Bharara:

There’s an epilogue here. Apparently, the NPR show, All Things Considered, gave a test to their archivists who analyzed 50 years-worth of episode transcripts to see if Leo was in fact correct. It turns out he was. The archivists counted the word Senator 20,447 times. But the word dinosaur appeared in mere 294 times, which, I don’t know. My question is, how many times was the word dinosaur used in reference to the senators?

Anne Milgram:

Now that would be a story.

Preet Bharara:

I think they should do some further research because that’s probably the case. In any event, the good news is, to remedy the situation, All Things Considered invited Leo on the show to ask questions about dinosaurs, to a research associate at the San Diego Natural History Museum. And why is that? Leo wants to be a paleontologist when he grows up. Maybe we can have him on the show ourselves. All right. So, next week, who knows what the world will bring us, but we’ll be here.

Anne Milgram:

And I hope Leo doesn’t write to us, although you’re right about the penguins, but he might not be a big fan of the rest of the show.

Preet Bharara:

But we don’t claim to consider all things.

Anne Milgram:

Good point.

Preet Bharara:

Just some things. So, send us your questions also, Leo or the rest of you to [email protected]

Anne Milgram:

And we’ll try our best to answer them.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Wiener, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the cafe insider community.