*Published on 2/12/2021

Elie Honig:

From Cafe, this is Third Degree. I’m Elie Honig. Welcome back, everybody. Thanks to everybody who’s been listening so far. It’s been great hearing from so many of you. Well, the House impeachment managers have made their case. They have rested their case. I have to say all in all, they’ve done it just about as effectively as they possibly could have, and there’s really a surprisingly broad consensus about that. We’re now seeing Republican senators are praising their performance. Donald Trump’s own attorneys said the other day that they had done a remarkable job. No matter how this comes out, they’ve made their record for the jury and also, for history. Now, yesterday wasn’t nearly as dramatic as the day before. We did not see any new jaw dropping videos yesterday or evidence. Nobody left yesterday feeling shaken like they did on day one of the House impeachment managers case.

So I want to pose this question. Should the impeachment managers have rested, have ended their case after the first day? Was day two really worth it. On the one hand, they didn’t do any harm on day two. They made some points and they reiterated a lot, but here’s the downside. The momentum went from this sort of overwhelming feeling at the end of day one to, “Oh, okay. They’re still going?” on day two. So what did they accomplish on day two? They did accomplish some real things. First of all, they spent a lot of time really trying to shore up what looks to be the only half decent factual defense Donald Trump has, this defense that, well, there’s not enough of a link between Donald Trump’s words and the crowd’s actions.

So the managers built on a foundation they set on the first day. They argued that January 6th was not an isolated event. It was a culmination of a long-term effort to mobilize and weaponize Trump’s most ardent followers. Yesterday, the House managers argued, “Well, why did those rioters sack the Capitol? Well, let’s ask them,” and they quoted various rioters from court papers and other public statements showing that those people did it precisely because at a minimum, they understood or believed this is what Donald Trump was telling them to do. One thing I think that the House managers did that was really powerful was they quoted this whole series of Republican elected officials and former Trump administration officials. Ted Lieu put it this way.

Ted Lieu:

People in his own party, state officials, former officials, current officials, members of Congress have all unambiguously and passionately said that what Donald Trump did was, “Disgraceful. Shameful,” and it called his behavior existential and wrong, and they said that his actions gave rise to one of the darkest chapters in United States history/ let’s hear what some of these officials had to say.

Elie Honig:

Why was this so powerful? Because these people, in particular, the people who worked with Donald Trump and his administration, they know him. They know Donald Trump and they understand better than probably anybody, how he communicates with his supporters. Now it’s time for Donald Trump to put on his defense through his lawyers, and really, all they need to do is play it safe. This is like if it was a football game and there were 30 seconds left and they had the ball in a five point lead. All they have to do is snap it and kneel down and avoid somehow fumbling into their own end zone. On the merits, on the merits, this is an extraordinarily difficult case to defend, but as a practical matter, the deck, the jury is completely stacked in favor of the defense. I think if you asked most lawyers, would you rather have the facts or the jury? They would say the jury. The jury is really the bottom line. Now, here’s the map.

There are 50 Democrats and 50 Republicans in the Senate. Of course, you need two thirds of the votes, 67 votes in order to convict. Now, it looks pretty clear that all 50 Democrats will vote to convict. Let’s assume the six Republicans who voted that the trial is constitutional a few days ago. Let’s assume they’re also onboard for conviction. That’s 56, meaning Trump’s lawyers need to prevent the loss of 11 more Republicans in order to get a not guilty verdict and remember, the moderate Republicans, Mitt Romney, Ben Sasse, Susan Collins, we’re already counting them among the six people who are likely to flip. So the terrain gets a little tougher as you move along. The smartest thing to do for Donald Trump’s attorneys is to play it safe, no risks, don’t inflame the audience, get it done. But of course, the client is Donald Trump. That’s not really his style. So here are the three lines of defense I think you can expect to hear from Trump’s lawyers today.

First of all, this first amendment free speech argument. Let me say right up front, the first amendment can be a defense in a criminal case, but there’s no strict or technical applicability in impeachment. I’ll put it in another way. There are any number of things that a president can say that absolutely would be first amendment protected, but also would absolutely be impeachable. I think the best example of that I’ve heard this week came from John Berman, who’s one of the CNN anchors. He said, “What if a president stood up on the podium and said, ‘I am now an adherent to Nazi ideology. I believe in what the Nazis believed in.'” Okay. That is first amendment protected. It’s not criminal either, but is it impeachable? You bet. It would have to be impeachable.

So what Trump’s lawyers are really arguing is this. Yes, maybe his words at the rally were fiery rhetoric, but he did not cross a line. Saying things like, “fight or fight like hell,” they’re going to argue politicians, people say that all the time. I guarantee you, you’re going to see a montage today of democratic politicians saying things like, “fight and fight hard and fight like hell.” Bruce Castor, one of Trump’s lawyers made this analogy. He said, “I’m an Eagles fan. When I go to the football game, I stand up and yell, ‘Fight like hell.’ I think that is a terrible argument that actually demonstrates the exact opposite point, that it all depends on context. Look, when you’re at the Eagles game, that’s a football game. The people you are yelling, ‘fight like hell,’ at, they’re wearing uniforms. They’re playing a sport with a ball.”

Compare that though, to standing in front of a crowd that’s been whipped up over months by this lie. They’ve been told the election’s been stolen from them. They’ve been told it will be wild. Many of them are armed. Some of them have zip ties or stun guns. Some of them, we’re now learning, were members of quasi militant extremist groups. We know some of them were waving Confederate flags. Some were wearing Nazi gear. Now, imagine telling them, “I need you to go down to the Capitol and fight like hell.” It’s different.

Now, even if the first amendment did apply here as it would in a criminal case, well, then what? You’re going to hear Donald Trump’s lawyers talk about Brandenburg. Now, that’s a Supreme court decision from 1969, but understand; that Supreme Court decision does not mean you can say anything you want and there’s no consequence, meaning the first amendment is broad, but it does have its limits. The test is you can not get up and make a speech that is directed and likely to incite imminent lawless action, meaning lawless action that’s soon at hand that’s nearby. So that’ll be the battleground in this trial.

Argument number two. I’ll politely call these the political motivation arguments, or more bluntly call them the red meat attack dog arguments. Look, I think it’s going to be a mistake if Trump’s lawyers go down this path of attacking the motives of the other side, but I also think they’re going to do just that. Now, look, it’s going to be tough to lose this case, may be impossible. Here’s one way they might do it though. If they are reckless enough to make the election fraud argument, if they try to further spread the big lie of the stolen election from the floor of the Senate, that could be so outrageous and indefensible that it could, could alienate some Republicans. It’s unlikely, but the lawyers did keep the door open in their initial brief. Although, it’s gone from the second brief. I think they’ve probably gotten a little smarter about that.

And then third, we have the constitutional and process arguments. If I had to argue this case, this would be where I would really focus, first of all, this argument that you cannot try a former official once they’re out of office. Now, you are probably wondering, wasn’t that already raised? Yes, it was and it was voted down 56 to 44, but it’s good enough for those 44, it seems, and if that holds, that’s good enough for a not guilty verdict. Now, are those 44 senators necessarily bound to vote not guilty? No. They could decide, “Okay. I think it’s unconstitutional, but the whole Senate that I’m part of rejected that. So it’s off the table.” By the way, that’s generally how it would work in a criminal trial. Sometimes defendants make constitutional arguments and if a judge rejects them, then they’re out of play for the trial. But of course, this is not a criminal trial. This is impeachment. Anything goes. These senators can rely on any basis they want to justify their verdict.

Second, I think we’ll hear a due process argument, which really boils down to this is too fast. In reality, if you tried to put a criminal defendant on trial this fast just weeks after the crime, you couldn’t. There’s just no way. It would never work. So their argument will be, “Well, we haven’t had enough time to prepare and investigate and develop our defense,” and they also may argue that the evidence introduced against Donald Trump would never be admissible in a court. They’re right that some of this would never be admissible in a court. But again, if we’re in impeachment, you can’t just take the rules you like and throw out the rules you don’t. Now, of course, there is a tension between the idea that it’s too late to impeach him because he’s out of office, but it was also too quick and it violates due process.

Now, a couple of big problems though, first of all, the Republicans agreed on these rules, not necessarily Donald Trump himself, but Senate Republicans agreed on these rules. So it’s kind of hard to now say they’re unfair. Also, due process is a legal concept for the courts where prison is at stake, where a person’s loss of personal liberty is at stake. That’s not the case in impeachment. Here, the stakes are not personal liberty, but really just the ability to hold a certain job. Now, Trump’s attorneys have 16 hours to put on their case, but reportedly, they’re only going to use three or four of those hours. I think that’s smart. If I’m defending this case, I’m going super minimalist. You’ve got the jury mostly in the bag. All you can do is screw it up. Of course, a lot can go wrong in three or four hours too. These attorneys for Donald Trump have been inconsistent and unpredictable, so we’ll see how they do today and we’ll break it down for you tomorrow.

If you have any questions or comments, please email them to us at letters@cafe.com. Thanks again for joining us here on 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 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.