*Published on 2/11/2021

Elie Honig:

From Cafe, this is Third Degree. Elie Honig.

Well, day two of the impeachment trial is in the books and wow, if that was not a game changer, then I don’t know what is. If that doesn’t change the minds of some of the Republican senators, I just don’t know what to tell you. I know, I understand politics and electoral prospects always reign supreme. We always have to remember this is at core a political process. But at a certain point, doesn’t something else creep in? Isn’t there any sense of truth or duty here?

And even if you’re only thinking sort of crassly about your own political future, your own electoral prospects, at some point, doesn’t it become more damaging to support or excuse this stuff, and to just make a clean break and condemn it? Now, before we get to the really sensational, just remarkable new evidence and the videos, I want to talk a little bit about the advocacy we saw today from the house impeachment managers.

This was a clinic. Students, law students, people just interested in how this works, this is how it works, what you saw today. And let me say, also, I’m not an easy audience. I’m pretty critical. I’ve seen a lot of prosecutors make arguments over the years. I’m not that easy to impress. I was very impressed today. The advocacy here was near flawless. Here’s what I mean. It was organized and it was clear. You always knew exactly where they were and what the point was.

One of the effective things that we saw was the use of simple, sharp metaphors. Here’s one from representative Jamie Raskin that I thought really made a good point.

Rep. Jamie Raskin:

This case is much worse than someone who falsely shouts fire in a crowded theater. It’s more like a case where the town fire chief who’s paid to put out fires, sends a mob, not to yell fire in a crowded theater, but to actually set the theater on fire.

Elie Honig:

One other thing that stood out to me about the advocacy today, it was very disciplined. They trained all of their fire on one person, on Donald Trump. Now, look, there are lots of other tempting targets out there. There are lots of other people who are culpable, who enabled this. People like Rudy Giuliani, Mike Pompeo, William Barr, people who helped to spread the whole idea of the big lie. But they really, the managers really abstained from taking shots at all the enablers. Most notably, Ted Cruz and Josh Hawley.

Now, I think that’s an important and probably a smart strategic decision because they’re sitting there in the well of the Senate. They’re going to vote. Now, are they ever going to vote to convict? Of course not. They’re two have 100 votes, you know which way they’re going. But why risk alienating their colleagues or others in the Senate who might still be in play, but think maybe it’s steps over one of these sort of genteel lines that they have in the Senate to attack a sitting member?

Looking back on day two, the first day of the house impeachment managers case in chief, what do we learn? Here are my three big takeaways about the house impeachment managers and their strategy. First of all, they drove home that as bad as the attack on the Capitol was it could have been even worse. Yesterday I asked the question, will we see new evidence? And if so, how powerful will it be? We have our answers. Yes, and very. Actually more powerful than I even really could have anticipated.

We heard these recordings of the police dispatch showing how badly over matched the Capitol Hill police were in terms of numbers and how just scared and understandably so. Interestingly, we’ve seen that video before. It’s that bird’s eye view shot of people storming up the Capitol step and hitting officers with flagpoles and other objects. Well, now we saw a body cam video from one of those officers and that puts, you the viewer, right in the middle of that action, shows you what it was like to be a police officer trying to defend that place.

And look, you cannot be pro law enforcement and be okay with any of this. And then I think the most dramatic part of this was showing exactly how close that mob got to our highest elected officials. Mike Pence, we saw the video of him being whisked away just two minutes after, by the way, the President tweeted about Mike Pence, tweeted inflammatory things about Mike Pence. Mitt Romney, we saw the video of him being turned around and essentially saved from walking into that mob by Officer Goodman. And Officer Goodman, we already knew was heroic. We’ve already seen the videos. This was new. This guy needs a metal. He needs a statue. What a hero Officer Goodman is.

We also saw how close the mob got to Speaker Pelosi to Chuck Schumer. Look, forget about partisanship. The people who were threatened here were equal parts Republican, Democrat. It doesn’t matter. You just can’t be okay with any of this. And I thought Eric Swalwell did a really effective job of describing this. At one point, he turned to the Senate and he said.

Rep. Eric Swalwell:

As you were moving through that hallway, I paced it off. You were just 58 steps away from where the mob was amassing.

Elie Honig:

I thought that was really specific, compelling. And at one point I just started to wonder, what if that mob had gotten to one of these elected officials? What if they had, God forbid, hurt or worse, Nancy Pelosi, Mitt Romney, name your person? Would it have made a difference in this impeachment? Purely intellectually, I suppose it shouldn’t have. It’s just a matter of happenstance, whether they happened to run into one of these people or not. But practically, if they had reached one of these people and hurt them, it would have to have made a difference. That would be squarely on Donald Trump’s shoulders. And it’s really only by blind fortune that it didn’t get any worse than it already did.

My second big takeaway. The house impeachment managers are focusing on the big picture. They stressed to the audience today it’s about so much more than just the January six rally. This was not spontaneous. This was not a day of, one-off type event. This was the end result, an inevitable and result of a months long effort by Donald Trump dating back to before the election. Here’s representative Joe Neguse, I think explaining it really effectively.

Rep. Joe Neguse:

His false claims about election fraud, that was the drum beat being used to inspire, instigate and ignite them.

Elie Honig:

What are the house impeachment managers doing here? They’re anticipating. They’re preempting. Because remember, they’re not going to get the last word. Donald Trump’s attorneys get to go second and last. Yes, we’ll have a question and answer period after Trump’s attorneys goes, but they’re not going to get as clean a shot as they are right now. And in criminal cases, by the way, the prosecutor goes last. I got used to that. You had the luxury of knowing you would get the last word, but not here.

The house impeachment managers have to think ahead. What are they trying to preempt? I think it’s pretty clear that Donald Trump’s attorneys are going to try to take the plain, bland text of what Donald Trump said on January sixth, break it up sentence by sentence, walk through it line by line, fight like hell. They’re going to say, “Well, in a vacuum, that’s ambiguous. That could mean anything. That’s protected speech.” And I think by focusing on the big picture, the house managers are trying to head that off at the pass.

The third big point that the house impeachment managers made. Donald Trump was taking no prisoners. For Donald Trump they argued it was complete, blind loyalty or else he absolutely turned on you. It didn’t matter who you were. And I think they did a good job of establishing that. When it became clear that Donald Trump might lose, had lost, he applied pressure to everybody, every person, every institution who could possibly help him steal this election. And if they didn’t back him 100%, they turned on him.

He tried it with the courts. He tried it with his own justice department, including Attorney General Barr who had previously been his biggest sycophant. He tried it with other Republican elected officials from state level officials all the way up to US Senators. He tried it with his very own vice president, Mike Pence, and ultimately he turned on Congress itself. Ted Lieu made this point.

Rep. Ted Lieu:

Let me be very clear. The president wasn’t just coming for one or two people or Democrats like me. He was coming for you, for Democratic and Republican senators. He was coming for all of us.

Elie Honig:

And when Donald Trump ran out of non-violent options, he turned to the final option, the violent option. Representative Stacey Plaskett put it this way.

Rep. Stacey Plaskett:

Truth is usually seen and rarely heard. Truth is truth, whether denied or not. And the truth is President Trump had spent months calling his supporters to a march on a specific day, at a specific time, in specific places to stop the certification.

Elie Honig:

Looking ahead now, what’s left for the house impeachment managers to cover? They have about eight hours remaining in their case. Here’s a couple things I think that are still left that the impeachment managers need to do. First of all, I think we’re going to see them assessing the overall damage. One name that did not come up much today was Officer Brian Sicknick, the Capitol police officer who was killed. I assure you they will bring him up today. They will evoke and honor his memory.

Another thing I think we’re going to see the house impeachment managers do is set the stakes and remind the Senate, remind the American public that this is it. This is the chance to disqualify Donald Trump and keep him from ever holding office again. And if we don’t convict him, if we don’t disqualify him, I think you’ll hear the managers argue, he could be back again in 2024. And given all we’ve seen, are we okay with that?

And I think we’re going to see the house impeachment managers do a little bit more of this sort of anticipatory, pre-rebuttal of arguments that they expect to hear from Donald Trump’s lawyers, including this first amendment, free speech argument. Will they use all the remaining time, the seven, eight hours they have left? Probably not. As a lawyer, I can tell you, it’s never a bad idea. You don’t have to use up all the time you’re allotted.

I got great advice in law school from a wonderful professor, Charles Ogletree, who said, “When you’re done, shut up and sit down.” And I did that sometimes in court. I left time on the clock and every single time I ever did that, the judges would nod at me and say, essentially, “You did the right thing there.”

I think the House Democrats are going to just put a ribbon on what they’ve already done. When they’re done, we’ll be onto President Trump’s defense. That will be fascinating to see how they approach that, especially in light of the explosive evidence that we saw today. We will be covering that for you as well. Thank you again for joining me. We’ve got another really important day ahead today, day two of the house impeachment managers presentation. Watch it if you can. It’ll be fascinating stuff. But if you can’t, I’ve got it covered. Talk to you tomorrow on a brand new episode of Third Degree.

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, Jeff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley.