The Daily - A Guide to the (Latest) Impeachment Trial

Episode Date: February 9, 2021

The second impeachment trial of former President Donald Trump will begin today.This time, the case against Mr. Trump is more straightforward: Did his words incite chaos at the Capitol on Jan. 6?We look ahead to the arguments both sides will present.Guest: Jim Rutenberg, a writer at large for The New York Times and The Times Magazine.For an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. You can read the latest edition here.Background reading: The impeachment case claims that former President Donald Trump was “singularly responsible” for the Capitol riot. His defense team argues that he cannot be tried.Here’s what to watch for as the trial begins.Hours after the 2020 vote, Mr. Trump declared the process a fraud. We look at his 77-day campaign to subvert the election.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the Senate begins hearing arguments this afternoon in the latest impeachment trial of Donald Trump. I spoke with my colleague, Jim Rudenberg, about what to expect from the prosecution and the defense. It's Tuesday, February 9th. So Jim, this is our second Senate impeachment trial of Donald Trump. And as a result, it feels like we don't really need to explain to listeners

how impeachment works as a process because we just went through it not very long ago. So I think I just want to start by asking you to explain the case that will be made here on both sides. And I wonder if you could start by reading from the article of impeachment that was adopted by the House of Representatives that basically serves as the indictment against Trump in this trial. Yeah, Michael, in a lot of ways, this is a much simpler case, right? Because in the last impeachment, it was complicated. It dealt with officials in Ukraine, this faraway place. There were lots of ins and outs.

You had to really get into the weeds to understand it. And this is very simple. Did the president's words lead to chaos on this critical day for the American democracy? And it's only one article of impeachment, and it has to do with what took place before our very eyes on January 6th. Let me read from this article. Quote, President Trump gravely endangered the security of the United States and its institutions of government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a co-equal branch of government. He thereby betrayed his trust as president to the manifest injury of the people of the United States.

That's effectively the case. Okay, so given that charge, how do you expect the Democrats, the prosecutors in this trial, to prove that happened, that he incited this riot? What will their arguments look like as they take to the floor of the Senate starting on Tuesday morning? Well, they've laid this out in their trial brief, and they are not only focusing on what he said or did on January 6th, which is vitally important to their case. I'm not saying it isn't, but they pull back the lens. And what they are arguing is that over the course of weeks, if not months, the president was building this case of a stolen election in such an overwhelming way, making the argument so ubiquitous that he led his followers to draw

the conclusion that the only thing they could do was to take matters into their own hands to defend the democracy. And Jim, where does that timeline start for the Democrats in this trial? If, as you say, they are really zooming out and back? It goes all the way back to well before the election. zooming out and back. It goes all the way back to well before the election. Well before the election. Right. And he is asked... Win, lose, or draw in this election.

Will you commit here today for a peaceful transferal of power after the election? Whether he would commit to making sure there is a peaceful transfer of power. Mm-hmm. And he says... Well, we're going to have to see what happens. whether he would commit to making sure there is a peaceful transfer of power. And he says, Well, we're going to have to see what happens. You know that I've been complaining very strongly about the ballots,

and the ballots are a disaster. We're going to have to see what happens. So starting in the summer, Democrats will contend, Trump begins seeding this idea that he might not accept the results of the election and that there is very likely to be fraud, corruption, abuse in the election. Not only that mail voting is susceptible to corruption, but that Trump is so popular and before the pandemic, the economy was doing so well that the only way Trump could lose. Because the only way we're going to lose this election is if the election is rigged. Remember that.

It's the only way we're going to lose this election. Was if there was corruption. Only corruption could beat Trump. If he loses, that's the only explanation. And that was an argument that he made for a very long time as well. OK, so what's the next point in this timeline for the Democrats? The next big moment comes during the presidential debates. And once again, during this debate...

Will you pledge tonight that you will not declare victory until the election has been independently certified? The president says he will not go along with conceding the election. If it's a fair election, I am 100% on board. But if I see tens of thousands of ballots being manipulated, I can't go along with that. Very big deal at the time. We knew it was a big deal at the time.

And in fact, there's a second very important moment at the debate where he's then asked... Will you urge your supporters to stay calm during this extended period, not to engage in any civil unrest? And will you pledge will he urge his supporters to stay calm during what's going to be a complicated process of counting votes? Will they not engage in any civil unrest? And we'll all remember this moment, the president and Chris Wallace go back and forth over this. But are you willing tonight to condemn white

supremacists and militia groups and to say that they need to stand down and not add to the violence in a number of these cities, as we saw in Kenosha and as we've seen in Portland? Are you prepared to do it? I would say almost everything I see is from the left wing, not from the right wing. So what are you saying? I'm willing to do anything. I want to see peace. Then do it, sir.

And Chris Wallace mentions the Proud Boys, a well-known, quote unquote, Western chauvinist militant group. And the president says, Proud Boys, stand back and stand by. But I'll tell you what, and we will hear this again and again, stand back and stand by in addressing the Proud Boys. It's an absolute killer line as far as the Democrats are concerned in their case. Okay, what's next? Well, next is a moment in late September that was sort of lost in all the news of the time.

And that is when a Biden bus branded with the Biden-Harris logo is driving down the highway in Texas and it suddenly comes across a caravan of Trump supporters in pickup trucks flying the Trump flag. Look at that. Oh my God.

These pickup trucks and automobiles start swarming the bus and driving very fast and trying to cut it off. And they almost run it off the road. Running them out of Texas. It is hilarious. And there's great outrage across both parties initially. But then the president instead basically goads them along. He celebrates it. He tweets a stylized video, as the Democratic brief describes it, of the caravan and captioned it, quote, I love Texas with an exclamation mark. Days later,

he calls them patriots who, quote unquote, did nothing wrong. So again, a moment where people could have been hurt. This is really a dicey moment and he is fully endorsing it. Then we get to the election and election night slash early morning of the following day. And what the president says at this moment is going to be very critical to the whole campaign that follows and therefore critical to this impeachment trial. And that is that at 2.30 in the morning. Well, thank you very much. The president is livid. Millions and millions of people voted for us tonight.

live in. Millions and millions of people voted for us tonight. And a very sad group of people is trying to disenfranchise that group of people. And we won't stand for it. We will not stand for it. He's watched his lead slip away. Now, mind you, he knew this was going to happen ahead of time. We know he knew this. We all knew this was going to happen ahead of time. The networks had prepared their coverage and their viewers, and we had prepared our readers. This is how this count's going to go. But the president comes out at 2.30 in the morning in the East Room and just lays down a marker that he won and that this is an unbelievable fraud. And the reason that this refrain that he makes at 2.30 in the morning is so important is because it will form the basis of everything that follows. President Trump will repeat this

over and over again. I won, like, by a lot. This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. And importantly, at the same time, there is a legal strategy built around an argument of a fraudulent election that his lawyers begin pursuing. And those lawsuits, as they keep losing in court, you would think, and I think a lot of people thought this at the time, oh, well, these cases are, they're losing and they're meaningless. In fact, they were doing something very important. And the important thing they were doing was they were sanctifying, at least in the PR campaign for Trump supporters, that this was somehow official, that here are official court documents that we are alleging that this fraud was so bad. It's treated as a real case.

That's very important as we go forward. Let's remember that lawsuits appear to be coming from everywhere. It wasn't just a Trump campaign filing lawsuits. It might be some state legislator in Michigan. It might be some voter in Georgia or Wisconsin, what have you. But almost all of these cases somehow or another are being filed by lawyers with Trump connections, even perhaps the most important case of all in this endeavor. filing that the attorney general of Texas, Ken Paxton, makes seeking to have four states votes thrown out because in his argument, Texas voters have been defrauded here because their votes were negated by these unfair votes in the other states. And in fact, our reporting showed that that lawsuit was drafted by attorneys close to Trump who then were looked for an attorney general who

would be willing to carry it forward. In this case, it was Kemp Paxton of Texas, who also, by the way, had his own legal problems developing and might have been in need of a pardon. So Democrats are very likely to argue that even when it seemed that this public campaign and this legal effort were not derived from the president or the White House, this evidence keeps bringing things back and closer to President Trump. They do not want this to be about the party. Any opportunity to make this about President Trump, they will make that. Because by the way, a lot of their jewelry is in that party. So whenever they can bring it back to the man himself, they will do that. But I just want to make another point about the Supreme Court case, because I think it's important. And I think it was a loss to us at the time a little bit.

And that's that what President Trump was building around the Supreme Court case and a lot of his media allies and party allies were building was that the Supreme Court will do the right thing here. That if you're now a passionate follower of President Trump, you believe everything he's telling you. So he is telling you that not only has he been robbed, but you've been robbed. So the Supreme Court is now becoming the receptacle of all the hopes of Trump supporters that they will do the right thing.

So on December 11th, when the Supreme Court does not do the right thing, the letdown is intense. Right. And of course, that leads many of these supporters to believe that their last possible chance at righting this wrong, again, adopting their language because there was no fraud, is January 6th.

Right, Michael, because a movement is growing here. Because what happens after the Supreme Court decision, December 11th, is on December 14th, the Electoral College makes the vote count official. And Trump turns to this idea that January 6th will be his last stand, that he will convince Congress to stop the steal, as it became known in his world, that they will object to this. the steal, as it became known in his world. They will object to this. And he gets very into this idea of a big January 6th Trump rally, the rally to end all rallies.

And as the Democratic impeachment managers lay out in their brief, he really is putting this January 6th rally in incredibly militaristic terms. He escalates his public statements and uses more and more incendiary and violent language to urge his supporters to stop this deal. Can't let it happen. We won't take it anymore. This is the language that the impeachment managers say turns January 6th into, quote, a powder keg waiting to blow. I just, again, I want to thank you. It's just a great honor to have this kind of crowd and to be before you. Then, of course, we get to that tragic day, January 6th. The crowds are huge. President takes the stage.

And what does he do? We're going to walk down and I'll be there with you. We're going to walk down. Not only does he urge his supporters to march down to the Capitol. Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

But the rhetoric he's using is we're going to fight like hell. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore. This is going to be a very important video to the Democrats who are going to, by now, have made a case that there's no logical conclusion for these supporters than to go down to that Capitol and take matters into their own hands

when every other American institution has let them down. Mm-hmm. So in summary, the Democrats' case is that for months, everything was building to January 6th so that in that final speech when Trump told those supporters to march to the Capitol,

the wood was already stacked and that was just the tossing of the match. Exactly. We'll be right back. Okay, so Jim, that's the case against Trump from the Democrats. What will former President Trump and his lawyers argue in their defense? What will that look and sound like? in their defense? What will that look and sound like?

Well, it won't look and sound like what President Trump initially wanted it to look and sound like, as we understand it, which was an argument that he won and it was a rigged election. So that's been dispatched with. Right, I think a bunch of lawyers actually quit when asked to make that case. He's gone through a few lawyers

and it seems as if his latest team has prevailed upon him to sort of drop that. But there are a couple different arguments they're making. And the key argument is that Congress does not have a right to do this. He's no longer in office. Impeachment in the Constitution specifically talks about removing

someone from office. He's gone, and therefore, this is a mockery of the Constitution. And Jim, is there any legitimacy to that defense? It's true he is no longer president, but when he committed the act at the center of the trial, he was president, and he was president when the House impeached him. he was president and he was president when the House impeached him. Michael, most legal scholars do not support this interpretation, including some prominent Republicans and conservatives, that the notion of impeachment, when the framers were sort of getting this into the Constitution, that it was already well established that one could be impeached after having left office, with the remedy in that case being preventing them

from serving in any high office again. The president's lawyers, however, are pointing to a single word in the constitutional mandate here, and that's and. That impeachment is to remove someone from office and prevent them from serving. And they're arguing that the first predicate

is that the person has to be in office and it's about removal. What about how they will defend more specifically against the case being made by prosecutors that Trump incited this violence? The president's lawyers are very focused on his specific words on the 6th.

And what they are arguing is that if you listen to his words, he is nowhere close to advocating for violence. In fact, they quote him, and this is true, that during his speech at the Ellipse, he said, I know everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. So they're saying there's no explicit call to action or violence in that speech on January 6th. But Jim, how do these defense lawyers plan to separate what President Trump said on the 6th from what came before it? Because it sounds like the Democratic case in this trial is that what came before and what was said on the 6th is deeply interconnected. Well, here they'll have an overarching argument that to imply that the president did anything wrong in any of that would be to rob the president of the United States of the fundamental right that all Americans have to free speech.

And that the president was well within his rights to voice this view that this is a stolen election, that this process wasn't right. And he wasn't inciting a riot. He was speaking the truth as he, they will argue, understood it. But Jim, I think anyone who has been through a high school civics class knows that when it comes to free speech, not all of it is protected. Yeah. But the president's lawyers are arguing that this, in fact, is not a case of that, that his speech, quote, fell well within the norms and how more American is that? The First Amendment protects the right to say whatever you want about an election and that he should have no less of a right to do that than any other American citizen. So it basically boils down to he is just another American citizen voicing his view under the constitutional right to do so.

Okay, so the president's defense team is going to argue both that the Senate doesn't have the right to try a former president and that everything he said is protected anyway under the First Amendment. People can say what they want about their views of the election, and that includes Trump. We could discuss which side has the stronger case here on the merits, discuss which side has the stronger case here on the merits. But of course, we should acknowledge at this point the fundamental reality, which was also the story of the first impeachment trial, which is this is not a legal trial. It's a political trial. And we know that there are not 17 Republican votes necessary in the Senate to convict former President Trump. So where does that leave us, knowing what the Senate is about to acquit Trump

for having done? I think what we have to grapple with is what we now consider status quo political speech. Is there a limit to what a sitting president can say about the election system and whether he or she lost an election when it's clear that he or she did? And a lot of the Republican defense is around the notion that this was just political speech. They actually quote the Supreme Court in one decision saying, the language of the political arena is often vituperative, abusive, and inexact. And what they are basically saying is, effectively, I guess,

there's no limit to that. Right. And if all political speech turns out to be okay, Right. And if all political speech turns out to be OK, no matter how big the lie, no matter whether it contributes to violence, what will that mean for the American Democratic experiment, especially in a moment of such widespread misinformation and disinformation. Well, Michael, at the expense of my reputation on the daily as Mr. Sunshine, it's how can you look at that as anything that's good? I mean, even none other than the Senate leader, Mitch McConnell, a rock-ribbed conservative, said that what Trump had said in motion threatened to send democracy into, quote-unquote, a death spiral. So it's taking us into an uncharted place., quote unquote, a death spiral. So it's taking us into an uncharted place. Right. And not a good place. Not a good place.

Well, Jim, thank you very much. We'll stay in touch throughout the trial. We appreciate it. Thank you so much, Michael. Thank you so much. We'll stay in touch throughout the trial. We appreciate it. Thank you so much, Michael. The trial will begin at 1 p.m. Eastern with four hours of debate about whether a former president can be tried by the Senate. If, as expected, a simple majority of senators agree to move forward, House impeachment managers will begin presenting their case tomorrow. We'll be right back. Here's what else you need to know today.

On Monday, for the first time since the start of his trial on corruption charges, Israeli Prime Minister Benjamin Netanyahu appeared in court where he declared his innocence, thanked the judges, then walked out in the middle of the hearing. The trial of a sitting prime minister amid the pandemic and political deadlock so severe that Netanyahu cannot form a governing coalition, has riveted the nation of Israel. Outside the courtroom, protesters demanded that Netanyahu be held accountable for his alleged crimes, which include granting political favors in exchange for lavish gifts.

And we came here because we support the law and we support the justice system and we believe that Benjamin Netanyahu, our prime minister, should stand trial like any other citizen in the state of Israel. in the state of Israel. And Representative Ron Wright, a Republican from Texas, has died after contracting COVID-19, becoming the first sitting member of Congress to succumb to the virus.

Wright, who was 67, had previously been diagnosed with lung cancer. He tested positive for COVID-19 on January 21st. Today's episode was produced by Robert Jimison, Aastha Chaturvedi, Luke Vanderploeg, Alexandra Lee Young, and Sydney Harper. It was edited by Paige Cowan and Lisa Tovin and engineered by Chris Wood.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.