Democrats Tell Senators A Conviction Could Prevent Future Violence : The NPR Politics Podcast The House impeachment managers concluded their case against Donald Trump by characterizing a Senate conviction as a way to prevent of future violence — a warning to future presidents who might be also inclined to encourage violence. Tomorrow, the former president's defense team mounts their response.

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This episode: White House correspondent Scott Detrow, congressional correspondent Kelsey Snell, and legal affairs correspondent Nina Totenberg.

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Democrats Tell Senators A Conviction Could Prevent Future Violence

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Democrats Tell Senators A Conviction Could Prevent Future Violence

Democrats Tell Senators A Conviction Could Prevent Future Violence

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

SCOTT DETROW, HOST:

Hey there. It's the NPR POLITICS PODCAST.

I'm Scott Detrow. I cover the White House.

KELSEY SNELL, BYLINE: I'm Kelsey Snell. I cover Congress.

NINA TOTENBERG, BYLINE: I'm Nina Totenberg, and I cover the law.

DETROW: And it is 5:40 Eastern on Thursday, February 11. And House Democrats wrapped up their presentation today in the second impeachment trial of President Trump. They made a lot of different arguments today, but the one I'd like to start out with and talk about is this idea that impeachment is not necessarily a punishment but a preventative step the Senate could take to prevent future violence. Here's the lead impeachment manager, Congressman Jamie Raskin of Maryland.

(SOUNDBITE OF ARCHIVED RECORDING)

JAMIE RASKIN: My dear colleagues, is there any political leader in this room who believes that if he is ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way? Would you bet the lives of more police officers on that? Would you bet the safety of your family on that? Would you bet the future of your democracy on that?

DETROW: Kelsey, let's start with this because I think one reason this really jumped out to me was that this is in itself a political argument, isn't it? This is trying to put some sort of stakes on the vote that senators will be taking at some point in the next few days.

SNELL: Well, right. I mean, this is a political trial. This is not a criminal trial. This is not a court in - except for the fact that they turn themselves into a Senate court when they're doing impeachment. This is a political proceeding. And Democrats repeatedly - it was kind of like their mantra, was that this is not a trial about punishing him. It is a trial about ensuring that no attack like that ever happens again. And their argument was that the only way to convey that to not only Trump but any future president, that the conduct that led to January 6 was not acceptable, is to go through impeachment. And they said that the act of impeachment, the act of conviction is just as important.

DETROW: Nina, did you think this was persuasive?

TOTENBERG: Well, as a political matter, I think it was persuasive. That said, they're sort of between a rock and a hard place because even though they really were pretty concise about their presentation, it got repetitive. Now, they have a lot of the video, and that's the compelling part. But the legal argument can sometimes get long.

DETROW: Yeah. And, Kelsey, yesterday was really gripping, was really honestly disturbing to sit through for a lot of reasons. Chief among them, you know, this trial is happening at the scene of the crime. Senators are sitting there in the Senate chamber watching videos of people ransacking their desks and then hunting them down in the hallways. But we heard a lot of Senate Republicans say yesterday that was a terrible day. I don't think it's directly connected to former President Trump. So then the managers started off their arguments today detailing how many people who have since been arrested said I was there because the president told me to be there.

(SOUNDBITE OF ARCHIVED RECORDING)

DIANA DEGETTE: Another Trump supporter who's been federally charged is Texas real estate agent Jennifer Ryan.

JENNIFER RYAN: Personally, I do not feel a sense of shame or guilt from my heart, from what I was doing. I thought I was following my president. I thought I was following what we were called to do. He asked us to fly there. He asked us to be there, so I was doing what he asked us to do.

SNELL: Part of what they were arguing here is that - as lead impeachment manager Raskin framed it, that - they called it a pattern of practice, that Trump went through a process of riling up his base. And they used previous times that his supporters were incited to violence as evidence that Trump had done it before. And, you know, they basically said the incitement is clear because the rioters were admitting that they came to the Capitol because they believe they were doing it at the direction of the president. They showed video of people saying that in interviews and in the videos that they shot of themselves. Democrats were trying to connect those dots for senators in a way that it would make it very difficult for them to deny that fact.

DETROW: You know, as one of our reporters who was out there covering the Trump campaign in 2015 and 2016, it really jumped out to me how they went all the way back to that campaign, to those moments where there would be protesters, and he would encourage the crowd or the security to rough people up and kind of going from that moment forward and how this kept happening and kept escalating. At a couple different points, the managers played video montages of either Republican members of the House or Republican governors condemning the former president and saying he was directly responsible for what was happening.

(SOUNDBITE OF MONTAGE)

KEVIN MCCARTHY: I could not be sadder or more disappointed with the way our country looks at this very moment. People are getting hurt. Anyone involved in this, if you're hearing me, hear me very loud and clear. This is not the American way.

MIKE GALLAGHER: Mr. President, you have got to stop this. You are the only person who can call this off. Call it off.

CHRIS CHRISTIE: Pretty simple - the president caused this protest to occur. He's the only one who can make it stop.

SNELL: The people we heard there are House Republican leader Kevin McCarthy, Congressman Mike Gallagher and former New Jersey Governor Chris Christie. So I think part of what they're trying to do there is play for the Republicans sitting in the room what their own party members were saying at the time, trying to drive home the way it was being received in the moment, not how, you know, Trump's actions and the response kind of have changed over time. They're trying to bring them back to the moment, to the horror and to the immediate reaction that people had.

DETROW: So the last big point of the day was a lengthy prebuttal from the Democrats, saying, we anticipate this is the argument that the Trump team will make tomorrow. Here's why it's wrong. Kelsey, can you give us the quick summary of what that argument was?

SNELL: Yeah, they were responding to arguments that Trump's lawyers made on the first day, the day when they were debating constitutionality, where they said that this was essentially a question of whether or not they were trying to go after President Trump for what amounts to protected political speech. But the impeachment manager said Trump isn't just some guy on the street expressing unpopular political ideas. Joe Neguse, who is a Democrat from Colorado, framed it as the Senate would be telling future presidents that inciting a murderous riot is constitutionally protected way to respond to losing an election. He said that Trump stood in the middle of a powder keg that he created and that his speech before that crowd on January 6 was more than just a political speech.

(SOUNDBITE OF ARCHIVED RECORDING)

JOE NEGUSE: Standing in the middle of that explosive situation, in that powder keg that he had created over the course of months, before a crowd filled with people that were poised for violence at his signal, he struck a match, and he aimed it straight at this building, at us.

SNELL: Nina, what do you make of that argument from Trump's lawyers? They're basically saying that, you know, all of Trump's speech is protected under the First Amendment as political speech.

TOTENBERG: I have to say that the argument they're making in this particular case - you know, they always say about lawyers, if you don't have the facts and you don't have the law, you pound the table. Well, this is the moral equivalent of that. This is, I think - is, in fact, a pretty silly argument. And there are almost 150 constitutional First Amendment scholars who actually sent the Senate a letter, and it included lots of liberals and conservatives saying, this is a crazy argument. It doesn't apply here. It has nothing to do with this case.

DETROW: I guess that's the difference between the types of trials that you're normally covering and the type of trial this is. Whereas a judge would say this is irrelevant or could, I mean...

TOTENBERG: Right.

DETROW: ...This is an easy out for a lot of Senate Republicans who do not want to vote to convict the former president.

TOTENBERG: It's - I think the easier out is just to say we shouldn't have impeached him in the first place 'cause he's not president anymore. I think that's - I think this one seems - it seems, when you think about it - and you heard Jamie Raskin at one point say this would be as if you not only - the fire chief not only cried fire in a crowded theater, but then proceeded to set fires. So I think the easier one is going to be for a lot of people to just say, oh, well, we shouldn't have done this anyway 'cause he's not president anymore.

DETROW: All right. We're going to take a quick break. When we come back, we will talk a little bit more about this prebuttal from Democrats and then look forward to what we can expect tomorrow.

We are back. And before we talk through what's going to happen next in this trial, I'm just wondering what big-picture takeaways you have from this closing argument from the Democrats today.

TOTENBERG: They've done an - I think an extraordinarily good job, by and large. And they have a lot of evidence to - it's audio. There's video. It's almost all Trump and, occasionally, people reacting to Trump. And it's pretty scary stuff.

DETROW: Yeah.

TOTENBERG: But in the last analysis, you need 17 Republicans to cross over. And while there may be more than we expect at this minute, I'm - I don't see any way that there are going to be 17.

DETROW: Yeah, Kelsey, we had this test vote of sorts earlier in the week when the Senate voted on whether the trial was legitimate to proceed since Trump was out of office, and you ended up having six Republicans vote yes. What is your thinking right now about how many Republican votes are legitimately up for grabs based on just the political realities we're in?

SNELL: Well, if you're in an environment where only six Republicans who are acting as jurors in this trial are interested in engaging with this argument on the merits of the argument, it's a pretty small universe because not even all of the six of them are likely to be thinking about voting for conviction. So, I mean, we saw Senator Bill Cassidy from Louisiana - he was the one person who changed his vote and originally said that the trial was unconstitutional and then changed his mind. He even said in his statement when he put that out that it hadn't - he was not necessarily convinced in any way that Trump was responsible for inciting the riot. He just thought that the House Democrats made a better argument. So it could be a universe of just a couple - maybe two, three.

TOTENBERG: I'm not sure. But you have seen the Democrats really try to shame the Republicans. Of course, they've tried this in the past and failed, and they're going to fail this time in all likelihood. But here's Jamie Raskin towards the end of today.

(SOUNDBITE OF ARCHIVED RECORDING)

RASKIN: What is impeachable conduct, if not this? I challenge you all to think about it. If you think this is not impeachable, what is? What would be? If President Trump's lawyers endorse his breathtaking assertion that his conduct in inciting these events was totally appropriate and the Senate acquits Donald Trump, then any president could incite and provoke insurrectionary violence against us again. If you don't find this a high crime and misdemeanor today, you have set a new, terrible standard for presidential misconduct in the United States of America.

DETROW: I mean, I thought this was a powerful argument. And then Raskin tried to elevate it even more, talking about the way that this government was set up and the - you know, the legislative branch and the executive branch and how, in effect, the president of the United States directed a mob on the other branch of government.

TOTENBERG: And that is, in fact, what the founders were most worried about - was demagoguery and mob violence, insurrection. At the same time, they were trying to set up a three-branch democracy. That is the single thing that you see over and over in the Federalist Papers that they're most worried about - is that the president, who's not supposed to be a king - and Raskin today said at some point that he was trying to be a king - was that a president would turn into a tyrant with the aid of an insurrectionary mob.

DETROW: Let's look forward to tomorrow. Kelsey, what can we expect? What do we know about the former president's defense so far in terms of how long it's going to take or what it's going to focus on?

SNELL: Yeah, so President Trump's lawyer David Schoen was on Fox News in the middle of the trial today, and he said that their legal strategy remains the same, that they'll argue that Trump had no tie to the violence. They say Democrats ignored part of the speech where Trump called for peaceful protest. Democrats did bring that up a bit, but we imagine that that's going to be a large portion of their argument.

He also said the videos that Democrats played took things out of context. And he didn't give specific examples of what he meant there, but we would expect that he would extrapolate on that. He also talked about how - he says that Trump has condemned the violence and doesn't want to be associated with what happened on January 6. So that's kind of where he said things would be. We also have heard that they don't plan to use up all of their time. One of Trump's advisers tweeted out that they expect to wrap up tomorrow, which would be quite speedy. That's only half of the time allotted if they use up the whole day.

DETROW: Nina, you have now heard this full argument from the Democratic side, including that really emotional recreation of the attack on the Capitol yesterday. What do you think Trump's team needs to do here?

TOTENBERG: Well, they will - they need to provide their guys and gals on their side with some little shreds that they can hang their hat on. And the - there are multiple ways to do that. They can say the - you violated his First Amendment rights. They can say he - that you didn't really prove a case. You took stuff out of context. They can say all kinds of things. But in the last analysis, which (laughter) - they've got the votes. This is - this requires a two-thirds vote. That's 67 votes in the Senate of the United States. And in any time, that is a really high threshold to meet. And in the environment - the partisan environment we live in today and with Trump having considerable impact still within the Republican Party, I think it's very unlikely that there are 17 Republican senators who are going to give them what they want.

SNELL: Yeah. Right.

DETROW: I do think it is worth saying, especially as we turn to this next phase of the trial, in the history of impeachment trials of presidents, one senator has voted to convict a president of his or her own party, and that was Mitt Romney next time around. So if we do end up with significantly more Republicans voting for conviction, I think it doesn't convict former President Trump. But I think it adds more of a legitimacy to this process, just like the 10 Republicans who voted to impeach him in the House did.

SNELL: Sure, though I have heard some Republicans argue that the people who are most inclined to vote for conviction represent parts of the Republican Party that maybe are not representative of where the party is heading. So I don't know that this necessarily will resolve for us the question that we've been asking a lot in this podcast and as we talk to sources, which is, where is the Republican Party heading with Trump no longer in charge?

DETROW: Yeah. Well, that's a question to keep in mind over the next few days as this trial concludes. We will carry all of it in real time on your radio and on npr.org. And, of course, we will be back in your podcast feeds tomorrow night to give you the overview of the Trump defense argument. That is it for today, though.

I'm Scott Detrow. I cover the White House.

SNELL: I'm Kelsey Snell. I cover Congress.

TOTENBERG: And I'm Nina Totenberg. I cover the law.

DETROW: 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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