What Is Donald Trump's Insurrection Impeachment Defense? : The NPR Politics Podcast The former president's impeachment trial begins next Tuesday. His new attorneys say the Senate doesn't have the grounds to proceed now that he is out of office.

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This episode: congressional reporter Susan Davis, congressional editor Deirdre Walsh, justice correspondent Ryan Lucas, and White House correspondent Franco Ordoñez.

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Trump Is Charged With Inciting An Insurrection—What's His Defense?

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Trump Is Charged With Inciting An Insurrection—What's His Defense?

Trump Is Charged With Inciting An Insurrection—What's His Defense?

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JORDAN: Hi, this is Jordan (ph) from Springfield, Va., right outside Washington, D.C. Just got back from my 2-mile daily walk that looks a little bit different this week as we got our first measurable snow in the area in over two years. This podcast was recorded at...

SUSAN DAVIS, HOST:

2:05 p.m. on Tuesday, February 2.

JORDAN: Things may have changed by the time you listen to this podcast. All right. Here's the show.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

DAVIS: I'm enjoying the snow. I went sledding over the weekend.

DEIRDRE WALSH, BYLINE: It's very pretty.

RYAN LUCAS, BYLINE: I've missed it. I've missed it. It's nice to have it back.

DAVIS: Yeah.

LUCAS: It really is.

DAVIS: Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

LUCAS: I'm Ryan Lucas. I cover the Justice Department.

WALSH: And I'm Deirdre Walsh, congressional editor.

DAVIS: Donald Trump's second impeachment trial begins in a week. And the House impeachment managers and Trump's defense team filed some key documents today with the Senate that outlined the arguments that they're going to make when the trial begins. Deirdre, let's start with the House. It's an 80-page pretrial brief that was written by the nine impeachment managers. They are, of course, led by Jamie Raskin, a Democrat from Maryland. What are the highlights in this brief?

WALSH: So this to me seems like the road map of what we can expect the managers to lay out in next week's Senate trial. They first start laying out the evidence in a narrative about their argument that the president is directly responsible for inciting the insurrection on January 6 at the Capitol. They go all the way back to an interview that the president did in July of 2020, when he suggested he might not accept the results of the election.

And then they sort of methodically tick through his own words and actions leading up to the morning of January 6 and his comments to a rally of his supporters on the Ellipse. And they quote him, and they talk about how he, quote, "whipped the crowd into a frenzy" and told his followers to, quote, "fight like hell, or you're not going to have a country anymore." And they conclude that the president, they say, quote, "summoned a mob to Washington, exhorted them into a frenzy and aimed them like a loaded cannon down Pennsylvania Avenue."

And the other part of the brief is their argument that the president is qualified, or his conduct rises to high crimes and misdemeanors, and he can be convicted and barred from holding federal office, even though he's no longer president, and that it is constitutional to have a trial of someone for conduct that they committed while they were in office.

DAVIS: I was surprised by how much of that brief they focus on that constitutionality question. It's something like 30 pages of the 80-page brief are defending this idea that you can, in fact, try a president once he's left office.

WALSH: I mean, that was the direction that they were told to address as part of the briefing schedule in the impeachment resolution. But you're right. I mean, we've already heard that that argument isn't really resonating with Senate Republicans. We saw that in a test vote last week.

LUCAS: And it really does build into a crescendo on January 6 with the president at the Ellipse. They do not kind of do this in dry terms. It is a swift-moving narrative that gets you to the point of this mob overrunning the U.S. Capitol and destroying the building and how lawmakers and their staff were hiding behind doors, terrified. They try to put a bit of that kind of visceral context in there to, I think, make it resonate with folks.

DAVIS: Ryan, we should talk about the first official documents we've seen from the Trump defense team. But before we get there, I think we should note that there's been some shuffling in the defense team in just days before the trial.

LUCAS: Right. It's almost like, which defense team was filing? This is...

DAVIS: (Laughter).

LUCAS: This is a team of two lawyers, David Schoen and Bruce Castor Jr., who were brought on actually just over the weekend to take up the president's defense, to lead it in this impeachment trial, opening actually a week from today. And they were taking over because there was a falling out between the team of five lawyers that had previously signed on to represent the president. That team was led by South Carolina attorney Butch Bowers, who had been recommended to Trump by South Carolina Senator Lindsey Graham.

That relationship between the president and the Bowers-led team unraveled over the span of about a week. They parted ways over the weekend. It was a mutual decision. And then the president quickly enlisted David Schoen and Bruce Castor, as I said, to take up his defense. And, yes, we did see the first response from them to this impeachment today in this brief from them.

DAVIS: So they filed today - as outlined by the Senate resolution, they filed a response to the article of impeachment. This is different than what the Democrats filed. That's a pre-trial brief. The Trump defense team will have a chance to file that as well, but that's not due until next week.

LUCAS: Right.

DAVIS: But this 14-page document does kind of speak to the larger arguments we can expect them to make. Can you talk about sort of the highlights or what's in there?

LUCAS: Yeah. What it basically boils down to is they are arguing that this whole second impeachment of now-former President Trump is unconstitutional because he is a former president now. He's no longer in office. They talk about how in the Constitution, they say it talks about removal from office. And since Trump is no longer in office, this whole proceeding is therefore moot and unconstitutional.

They also deny a lot of the allegations that we've heard from House managers. They deny that Trump violated his oath of office. They deny that he incited the mob. They deny that he made false statements about the election being stolen from him because, they say - and this was - they say that there's insufficient evidence to conclude that his statements were not accurate. They do not bring up the fact that the Trump campaign took some of its claims to court and that courts shut down those claims.

They also argue that Trump's speech at the Ellipse and other comments that he had made - that that's all protected by the First Amendment. And they deny, interestingly - this kind of struck me - they deny that when he said, quote, "if you don't fight like hell, you're not going to have a country anymore" - they say that that didn't have anything to do with what happened at the Capitol. And they say that it was clearly about the need to fight for election security in general - generally speaking.

DAVIS: Deirdre, I wonder how much you think the defense team's arguments before the Senate will affect any undecided senators' minds? I mean, we know that a conviction's unlikely. We know that the majority of Republicans have at least supported this idea that it is not constitutional for this trial to take place. But the defense team - you know, if they get up there, and they don't provide a clear, concise defense, does it make it harder for Republicans to vote to acquit?

WALSH: I think it could. I mean, I think that some of the things that Ryan laid out in this response today could already start to raise some concerns among Senate Republicans. We've had some warnings from some of the Senate Republicans basically saying that the president's defense team shouldn't glom onto, you know, baseless claims or things that are incorrect. Bill Cassidy...

DAVIS: Right.

WALSH: ...A Republican from D.C...

DAVIS: Don't keep questioning the election, in other words.

WALSH: Correct. Yeah. I mean, he was...

DAVIS: Yeah.

WALSH: Bill Cassidy was already on NPR yesterday suggesting that talking about things that aren't true is a bad legal strategy. And I think, you know, when you have the Senate - you know, now Senate Minority Leader Mitch McConnell directly linking the president's words to the attack at the Capitol and many other Senate Republicans also saying that in the days after the attack, and then you have the president's - former president's defense team going on Fox and sort of cherry-picking things that the president said, I think that could raise some problems with Senate Republicans.

And if that becomes the argument in the trial instead of whether or not it's constitutional to prosecute, you know, someone who's out of office, it could sort of change the tone for a lot of Senate Republicans.

DAVIS: All right, Ryan. I know you have a lot of work to do, but we're going to be spending a lot of time together soon, at least on the air, because we're going to be doing live special coverage of that impeachment trial. It's like old times for you and me.

LUCAS: It's almost like a repeat of a year ago, isn't it?

DAVIS: Almost - yeah, exactly a year ago, I think. Thanks for doing the pod. Talk to you soon.

LUCAS: Bye.

DAVIS: OK, Deirdre, please stick around. And when we get back, we're going to talk about some immigration executive orders coming out of the White House today.

(SOUNDBITE OF MUSIC)

DAVIS: And we're back. And Franco Ordoñez from our White House team joins us. Hey, Franco.

FRANCO ORDOÑEZ, BYLINE: Hello.

DAVIS: So President Biden is going to sign a series of executive actions today involving immigration. The first is going to reunite migrant children separated from their parents after crossing the United States border. Can you talk us through that?

ORDOÑEZ: You know, one of the things that it does is it creates this task force that will work across agencies and interest groups to help track down the missing parents of hundreds of children. The task force will then work on the best way to reunite these kids with their parents.

And it's, frankly, a really challenging job because the records aren't all there. There's no file cabinet to go to. And really, there's been a lot of questions, actually, about whether Biden administration is going to bring the parents back to the United States because that is something the Trump administration did not do. But a senior administration official did tell me that reuniting in the United States was one of the options. But it was a decision that'd be up to the task force.

DAVIS: Does it say who exactly is going to be in charge of this task - like, who is going to be running this?

ORDOÑEZ: Well, it's going to be overseen by the homeland security secretary. That is a big reason why the process was kind of delayed. It was originally supposed to be signed last week. It was put off because Biden's choice for homeland security, Ali Mayorkas - his confirmation was held up by a Republican filibuster. But now they expect that to go through. And with him, he will be able to lead these things. So he's going to be reviewing a lot of these things.

There's other, you know, executive actions as well, including this return to Mexico thing that they want to review. That is something else that Mayorkas is looking at - that policy that President Trump put in to make sure that migrants coming to the United States from Central America and South America - they would actually have to remain in Mexico or another third country while their asylum cases came up. So they're going through a lot of things here that they want to change. But they're very clear in saying that it's going to take time, and they're not just going to be able to, like, change everything overnight.

DAVIS: Frankly, this seems like a continuation of a pretty familiar pattern - right? - that presidents take maybe great liberties in enacting immigration policy. President Trump did this. President Obama did this. Is there any sort of squeamishness about continuing to do immigration policy through executive actions and not through law?

ORDOÑEZ: Absolutely. There's a lot of squeamishness about this. And there's some squeamishness including inside, you know, the Biden team. Of course, Biden, on his Day 1, introduced a massive immigration proposal that would include a path to citizenship for 11 million undocumented immigrants. But, you know, you guys know, Deirdre obviously knows it is very difficult to pass anything in Congress, but especially an immigration proposal that includes a path to citizenship, which many, many Republicans see as amnesty.

WALSH: Right. I mean, I think that's probably why the bill introduction was followed by this executive action. I mean, the administration is realistic about what it can do through Congress. I mean, Sue, I'm sure you've covered this, like everyone else, for years. It's been really tough and politically tricky to knit together a coalition to do comprehensive immigration reform.

DAVIS: Yeah.

WALSH: And there have been different formulas tried. But as Franco mentioned, you know, the push for a path to citizenship is automatically met with accusations that it amounts to amnesty. And I think ever since President Trump used the immigration issue in his 2015, 2016 presidential campaign, it just makes the issue so much hotter for both political bases.

DAVIS: Yeah. And Trump seems to have left the Republican Party in a position where they are far more skeptical of immigration. I think it's possible to maybe still get a bipartisan coalition in the Senate. You even have people like Lindsey Graham who support things like the DREAM Act that would allow certain immigrants to become citizens.

But in the House, Deirdre, I think in particular, I mean, they are just much more Trumpian now than they were even four to six years ago. So any kind of comprehensive immigration legislation that would allow for a path to citizenship - it's just - it's really hard to see how that could happen, especially if Republicans are trying to win a majority in 2022. I don't know if any of them think comprehensive immigration legislation would help them to that goal.

WALSH: Agree. I mean, they are miles apart, and I think they see keeping their loyal base happy and energized as the way to returning to the majority.

DAVIS: Yeah. All right. Well, I think we're going to leave it there for today. We'll be back in your feeds tomorrow. But you can find all the other ways to stay connected with us by following the links in the description of this episode.

I'm Susan Davis. I cover Congress.

ORDOÑEZ: I'm Franco Ordoñez. I cover the White House.

WALSH: And I'm Deirdre Walsh, congressional editor.

DAVIS: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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