*Published on 2/13/2021

Elie Honig:

From Cafe, this is Third Degree. I’m Elie Honig. Welcome back to Third Degree everybody, another jam packed day. The best thing that Donald Trump’s lawyers did yesterday was to shut up. If they wanted it, they had up to 16 hours to present their defense case, but they only used about three and a half of those 16 hours. And to that, I say, thank goodness, their performance was just dreadful in every sense. And look, let me break that down for you. They were non-responsive. They were poorly presented. They were all over the map. They were impossible to follow. They were illogical. They had an amateurish simplistic view of the law. And all of that is just the benign part. At one point Trump’s lawyer, Michael van der Veen said, “You can’t incite what was already going to happen.”

Yes, you can. Of course you can, especially if you were the reason it was already going to happen in the first place. And even worse than that, Trump’s attorneys seemed to serve two functions. First, the attorneys almost acted as these deflector shields of ignorance. They seem to know nothing about their client, almost nothing about this case. Although maybe that was genuine, in their defense, they just came onto this case a few days ago. At one point the senators posed the question about what did Trump know and what specifically did he do in the wake of the Capitol riot? And the answer that came from the attorney was essentially, “How am I supposed to know? You guys are supposed to know that.”

I mean, how are you supposed to know? He’s your client. Now was this intentional? Did Donald Trump erect a wall, so to speak in between him and his attorneys? Did he intentionally not tell them things so that when they went on the floor of the Senate, they wouldn’t have any answers. I don’t know, probably not. That sounds a little too calculated for me. But at a minimum it was an inadvertent benefit of sorts. I guess there’s a benefit in the impeachment setting to have attorneys who don’t know anything about you. Even worse than that, these attorneys made outright misstatements of fact. Now, I don’t know if these were intentional misstatements or just misstatements born out of ignorance. But at one point the attorneys were asked a very important question, whether Donald Trump knew the Vice President Mike Pence was in danger inside the Capitol? The answer is no. At no point was the president informed the vice-president was in any danger.

That’s just false. There are sources everywhere that have confirmed that. On record to the media, including Kevin McCarthy and others and we’ll talk about them in a moment. Here are my three big takeaways from yesterday and things to watch today. First of all, that weird question and answer session that we saw, where the senators could write their questions on what looked little index cards, and then pass them up to Patrick Leahy, and then he read them out loud. What you saw yesterday with that Q&A session is nothing like real court. It’s not what real witness examination or direct examination is like. And I actually wanted to see a little bit better performance by both sides. Mostly what we saw was each side lobbing softballs to whichever side they favor. Democrats in the Senate lobbing softballs to the House managers, Republicans lobbing softballs over to Trump’s attorney.

Why not go across the aisle? Why not affirmatively challenged the other side’s case? And really the best example of that was when senators Collins and Murkowski, yes, their Republicans, but they also seemed to be aligning with the Democrats for the most part on this case. Asked the most important question really in this case, exactly when did Donald Trump learn of the Capitol riot? And what specific steps did he take? And when? And that’s when that attorney stood up and just gave a bunch of absolute gibberish. You could never get away with that in court by the way as an attorney. You would either be made to answer, ordered to go find out and report back to the court, or heaven help you if you were in front of a jury, they would see right through you and your credibility would be destroyed.

Second, what’s going to happen with witnesses? Now, this is where I need to separate my prosecutor side from the reality, the political reality of impeachment. In a criminal case, obviously you’d have witnesses. You’d want to call victims. You’d want to subpoena people from inside the White House. You’d probably want to subpoena phone records. You’d try to get witnesses to flip against each other so you can build up and get the truth. But in impeachment, the practicalities make it almost impossible.

Let’s play this out. We got this breaking news at the end of the day. Broken by the way, by Jamie Gangel reporter for CNN. Note that Jamie Gangel seems to be better at getting some of the key information than the House impeachment managers. Jamie reported about what Donald Trump knew and did in those crucial minutes and hours while the siege was happening. And it is clear because Jamie’s reporting has been confirmed on the record by those who were involved, that Donald Trump was told by several people that there was this riot happening, that Vice President Mike Pence was present. And of course, if he was watching TV, which Donald Trump always is, he’s surrounded by screens everywhere he goes in the White House, he knew this was happening as well.

Do we need witnesses? People like Kevin McCarthy, Tommy Tuberville, who spoke directly to Donald Trump and had key conversations with him, they’d be high up on your witness list. But here’s the problem, let’s say the Senate were to vote, yes let’s have witnesses later today. Well, the first problem is easier said than done. Because if witnesses declined to show up, normally you’d subpoena them. That means they have to show up and testify. What would happen? Those witnesses would challenge the subpoenas in court. They would claim executive privilege or something like that. And if that happens, then you’re held up for weeks, maybe months and that is a major practical problem with this Senate. They just don’t have the time politically to wait that long. And even if you get a witness, let’s say Mark Meadows, the president’s chief of staff who seems to have been around the president during key times that day, is he realistically going to help your case? I mean, he already claims that Donald Trump took immediate action and condemned it.

Mark Meadows:

Well, I can tell you, we took immediate action. One of the things that has not been told yet is the fact that not only the president wanted to make sure everybody was safe, but he literally at the very first said, we need to make sure that they have the resources. That’s not being told the fact that he wanted our National Guard to be on the ready for any civil unrest that might be there.

Elie Honig:

Can you cross-examine Mark Meadows on that claim. Of course. Can you cast some doubt on it? Yeah, of course. But he’s not going to go all Colonel Jessup on you and admit that he’s really covering up for his boss. In a perfect world, of course you would subpoena people, you would get these witnesses, but impeachment is far from the perfect world.

And third, we are about to hear the closing arguments from both parties. I think it’s pretty clear what we’ll get from Trump’s lawyers, really more of what they gave us yesterday. Grievance attacks on the motivation of Democrats, misdirection, maybe a little procedural stuff mixed in. But the question is, what do you do if you’re the House impeachment managers? And I did notice that the House managers who were very disciplined in presenting their case, they didn’t take cheap shots. They weren’t diverted. They got a little more animated during the question and answer period. They seemed to want to rise a bit towards the level of intensity being shown by their political opponents.

My advice to the House impeachment managers is don’t follow Donald Trump’s attorneys into the muck. Certainly don’t reciprocate. Don’t go scorched earth. Don’t go personal. Don’t make it all about political motivations like Trump’s attorneys have done. It’s a trap. Because if you’re the House impeachment managers, you have to have accepted the reality at this point that you’re not going to “Win.” You’re not going to get a conviction in all likelihood. And if you do that, if you chase the other side down, that’s the other sides playing field. And it’s a side show. Anyway, we used to struggle with this a lot. When I was a prosecutor, when you’re prosecuting a case, you want the jury to focus on the defendant’s conduct and the facts. And often defense lawyers are trying to defer and cast out on the prosecution’s motives and that thing. And we would always stand in front of juries and say, “Please keep your eye on the ball. This case is about this defendant sitting right here and the facts of what he did.”

It was always a battle for focus there and I see a similar dynamic playing out now. If you’re the House managers, keep it focused on Donald Trump’s actions, his words before and during and after the Capital attack. And that’s it. They’ve been very disciplined so far. I think they’re going to go back to that when they close. It’s their only real shot to persuade anyone as infant testimony as it might be. And it’s the best way to set the historical record. 100 years from now, no one’s going to remember the video of various politicians and Madonna and Johnny Depp saying the word fight, or accusations of political hatred, that stuff all falls away. They’ll remember the Capitol riot. They’ll remember Donald Trump’s role in it. I think that’s what you’re playing for if you’re the House impeachment managers.

Here we are almost at the end of this impeachment trial. This thing has moved with lightning speed. Before this impeachment trial, the quickest, the shortest prior trial was last year’s Donald Trump impeachment, which was 21 days. This one, if it finishes today is going to go only five days. So Donald Trump has all the records. He shattered his own previous record. He’s the Usain Bolt of impeachment. Now what’s going to happen today. First, the Senate is going to vote on whether to hear witnesses. I’m fairly sure they’re going to vote no, even though the need for witnesses is screaming out more than ever. Ultimately the politics and the practicalities I think are going to prevail here. If they vote no witnesses, then we’re onto closing arguments, and then we’re onto the final vote. We could have a verdict by the end of the day today.

It seems as almost certain that it will be not guilty. But I have to say if the final count comes out to something along the lines of 55 or 56 guilty, and 44 or 45 not guilty. That won’t be the necessary two-thirds. That’ll be a not guilty verdict, but to paraphrase Fiddler on the Roof, it’s no great honor either. It’s a pretty substantial achievement if they get 55 or 56 guilty votes, including from five or six Republicans, I think that’ll be an important statement. However this comes out later today, we’ll be back with the final recap on Monday. Thank you for tuning in to Third Degree, I’m Elie Honig.

Third Degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat 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.