How will Trump’s second impeachment trial compare to his first?

House leapt into action without witness hearings after Capitol riot, a far cry from drawn out soap opera of last winter when president accused of trying to extort political favour from Ukraine

Joe Sommerlad@JoeSommerlad
Tuesday 09 February 2021 19:00
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Trump impeachment lawyer calls trial 'slap in the face'

Donald Trump, the 45th president of the United States, was impeached for an unprecedented second time on 13 January 2021, with the House of Representatives voting 232-197 in favour of an article charging him with “incitement of insurrection”.

This historic gesture happened one week on from the storming of the US Capitol Building by a mob of enraged Trump supporters, whipped up by the president’s words at a “Save America” rally staged nearby to coincide with the certification of the previous November’s election results in a Joint Session of Congress.

The incumbent had comprehensively lost the presidential race to Democrat Joe Biden, the Electoral College slipping out of his clutches by a landslide final score of 306-232 and the popular vote by a margin of 7m ballots.

But Mr Trump refused to accept the reality of his defeat so, rather than concede graciously and co-operate with the incoming administration, he spent his lame duck transition period insisting the result had been “stolen” by a “mass voter fraud” conspiracy he entirely failed to prove, his lawyer Rudy Giuliani sweating boot polish hair dye and holding press conferences in Philadelphia garden centres en route to losing 59 out of 60 court challenges.

No matter how many humiliations he and his advocates suffered, Mr Trump continued to push the Big Lie as his Republican Party and Fox News champions gradually fell away, taking it all the way to the streets of Washington on 6 January: a date that will forever live on in infamy.

Read more: Follow the senate impeachment trial live

“We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong,” he told the crowd that day, as Mr Giuliani demanded “trial by combat” and his eldest son, Donald Trump Jr, warned disloyal Republicans: “We’re coming for you.”

A mob featuring neo-Nazis, Proud Boys and QAnon cultists among their number duly broke through police barriers to occupy the US Capitol, roaming its halls bearing the Confederate flag, breaking into offices and engaging in acts of looting and vandalism, all livestreamed on social media as lawmakers hid behind locked doors in fear for their lives. Five people died amid the chaos.

Mr Trump, who has since been barred from Twitter, left office and taken up residence at his palatial Mar-a-Lago resort home in Palm Beach, Florida, will now stand trial in the Senate on Tuesday 9 February.

But this is not his first rodeo: like Andrew Johnson and Bill Clinton before him, Mr Trump was impeached by the House in December 2019 before being acquitted in the Senate last February.

Here’s a reminder of what happened then and a look at how proceedings might differ this time around.

What happened last time?

Donald Trump’s first impeachment was set in motion on 24 September 2019 when Democratic House speaker Nancy Pelosi announced she was opening an impeachment inquiry into an anonymous CIA whistleblower’s tip that he had acted improperly during an official phone call with Ukraine’s new president Volodymyr Zelensky on 25 July.

The US president had seemingly threatened his Eastern European counterpart with the suggestion that almost $400m in congressionally-approved American military aid would be withheld unless Mr Zelensky announced a politically-embarrassing anti-corruption investigation into Mr Biden and his son Hunter Biden, who had previously served on the board of local gas company Burisma.

The House inquiry began hearing depositions, first in private and then in public, from an assortment of colourful character witnesses with knowledge of Trumpian dealings in Ukraine and the smoking call itself, among them ex-ambassadors Marie Yovanovitch and Gordon Sondland, Ukraine charge d’affaires Bill Taylor, State Department Russia expert Dr Fiona Hill and Lt Col Alexander Vindman of the National Security Council.

The House went on to formally accuse the president on two counts, abuse of power and obstruction of Congress, on 13 December, voting in favour of both five days later and sending the matter on to the Senate, where majority leader Mitch McConnell moved quickly to limit the process, notably denying the opportunity to hear from further witnesses like John Bolton and Lev Parnas.

The case for and against conviction was made by Democratic impeachment managers and a cast of Trump lawyers, among them Clinton impeachment prosecutor Ken Starr, celebrity lawyer Alan Dershowitz, White House counsel Pat Cipollone and private attorney Jay Sekulow.

The president was ultimately acquitted when only Utah senator and 2012 presidential candidate Mitt Romney broke GOP ranks to condemn him.

How will Democratic managers make the case against Trump?

Unlike the first impeachment push, House Democrats did not hold hearings or interview witnesses before drawing up the “incitement of insurrection” article, feeling the events of 6 January spoke for themselves, having played out live across the news networks and social media, the facts indisputable.

Led by Maryland representative Jamie Raskin, the congressmen and women managing the case on Tuesday issued an 80-page memo outlining their argument.

“President Trump’s responsibility for the events of 6 January is unmistakable,” they wrote. “President Trump’s effort to extend his grip on power by fomenting violence against Congress was a profound violation of the oath he swore. If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offence, it is hard to imagine what would be.

“President Trump created a powder keg on 6 January… Hundreds were prepared for violence at his direction. They were prepared to do whatever it took to keep him in power.

“All they needed to hear was that their president needed them to ‘fight like hell’. All they needed was for President Trump to strike a match.”

The managers say their goal is to set a precedent to ensure nothing like the Capitol riot ever happens again, declaring: “To protect our democracy and national security - and to deter any future president who would consider provoking violence in pursuit of power - the Senate should convict President Trump and disqualify him from future federal officeholding.”

They intend to argue that Mr Trump had been preparing the ground for his failed coup for months through his inflammatory rhetoric on the campaign trail, building their case by citing his previous advocacy of political violence and reporting that the president was well aware in advance of what was likely to happen and declined to act.

The memo also suggests they will make an emotional appeal on behalf of the lawmakers who had to barricade themselves in their offices in terror, cite condemnation of Mr Trump’s actions from prominent Republicans including Mr McConnell and warn that the incident represents a threat to American democracy and was precisely what the Founding Fathers had most feared.

How will Trump’s lawyers defend him?

This time, Donald Trump will only have two defenders to make his case: David Schoen and Bruce Pastor.

Mr Schoen is an attorney based in Atlanta, Georgia - a state that became a focal point for the ex-president’s baseless conspiracy theories about his election defeat - who previously considered representing billionaire paedophile Jeffrey Epstein, a former friend and neighbour of Mr Trump before his apparent suicide in a New York City jail cell in August 2019.

Mr Castor is best known as the Pennsylvania district attorney who declined to prosecute comedian Bill Cosby over allegations he drugged and molested a girl in 2004.

The president lost five further members of his defence team over the weekend, with lawyers Butch Bowers, Deborah Barbier, Josh Howard, Johnny Gasser and Greg Harris all departing late into proceedings, reportedly over disagreements regarding their fees.

A 14-page pre-trial strategy brief issued by Mr Schoen and Mr Castor makes clear they intend to argue against the legitimacy of the trial in the first place, insisting that Mr Trump should not be subjected to an impeachment because he is now a private citizen.

“The constitutional provision requires that a person actually hold office to be impeached. Since the 45th president is no longer ‘president,’ the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish,” they say.

Democrats though believe Mr Trump must be held responsible for his actions as president and see value in securing a conviction to ensure he is blocked from launching a fresh bid for the White House in 2024.

“The First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office,” they say in their own brief.

Mr Trump’s team is also looking to pursue a “free speech” argument on behalf of their client, saying he had a right under to express his belief that the election was “rigged”.

“After the November election, the 45th president exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” they write.

“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president’s statements were accurate or not, and he therefore denies they were false.”

Speaking to Fox’s Sean Hannity on Monday night, Mr Schoen objected to Democratic impeachment manager Eric Swalwell’s plan to show footage from the Capitol siege and insisted the whole process was needlessly divisive at an already trying time for the country.

“This has nothing to do with President Trump and the country doesn’t need to just watch videos of riots and unrest. We need to heal now. We need to move forward,” he said. “It is tearing the country apart at a time when we don't need anything like that.”

As The Independent’s Andrew Buncombe concludes: “Donald Trump’s defence may appear wild and scattershot. But it will likely be enough to ensure he is not convicted.”

A Senate vote on 26 January agreeing to press on with Mr Trump’s second impeachment trial passed 55-45, indicating insufficient Republican support for a conviction and falling well short of the 67 needed.

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