How Democrats are trying to convince Republican senators to convict Trump

ABC News contributor Kate Shaw joins the podcast to discuss the evidence presented by House impeachment managers in former President Trump’s second impeachment trial.
32:15 | 02/12/21

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Transcript for How Democrats are trying to convince Republican senators to convict Trump
Hello and welcome to the fight dirty politics podcast ideal and root. Today house impeachment managers finished laying out their argument for why former president track. Should be convicted by the senate for inciting insurrection at the US capitol. They presented evidence spending months from before the election when then president trump refused to commit to a peaceful transfer power. To his attempts to overturn election results in individual states. And then to footage inside the capitol on January 6 that the public had not previously C. We talked about the political dynamics within the senate previously our podcast it appears unlikely that seventeen Republicans will ultimately join Democrats to convict trump. Although we'll have to see how the vote comes out. But these proceedings are still a meaningful record could shape public opinion. And the historical record so today we're gonna dig into the evidence and the law and he repeated do that is our colleague at ABC news key shock. Keep using legal contributor at ABC. Law professor act Cardozo school of law and cohost of the podcast strict scrutiny. Welcome to. Hey thanks for having me back. And listeners may remember Kate. From this podcast previously during the last impeachment. Thank you for for coming again really appreciate it to talk about it impeachment once more are pretty different circumstances. So just a began what was the crux of the argument that house impeachment managers need. For buying a former president track should be convicted fourteenth citing an insurrection. In this. Yet that the case that they need this week tracked pretty closely the single article of impeachment. For an incitement of insurrection and and it focused of course on the events of January 6 but just as you said it took a pretty broad view of sort of January 6 as the culmination of a sustained campaign that started on November 3 in some ways but even earlier than that in many ways. A third of the president president trump seeking to discredit the outcome of the election that he lost. And and sort of seeking different venues pursuing different avenues and to be undermined the legitimacy of his election loss and set off lawsuits. And it involved pressure campaigns against state officials and his attention turned to his vice president Mike Pence to be somehow believed. Had a unilateral power to refuse to count votes from some of the states that had gone for Joseph Biden. On and so as he's returned his focus to January 6 rate many of his supporters. Having internalized this slide that the election had been stolen. Began to coalesce around this plan and you know where their actual was or actual evidence that the president was in quirk nation a conversation with and you these individuals prior to that January 6 attack. No there wasn't and I expect we'll hear a lot about the conspicuous absence of back kind of evidence from that former president's defense team. But there's a lot of circumstantial evidence that suggested. That especially on January 6 itself. President trump was quite aware of the kind of the way his followers were understood his Tex were to issue and to fight like Keller they wouldn't have a country. To be taught freight. You know use the term fight something like twenty times during his speech and it lets just before everyone's heard its mark on capitol. And that also during the course of the actual attack on and Steve at the capitol you know even if you followed all this really close in real time it was. Quite striking not just to see the new footage that you talked about but to see laid out. In you know kind of an along kind of a timeline that the tweets that president trump sent over the course today. Seeming essentially to encourage some of what was happening. Even you know at the end of today. When it was pretty clear how maybe not the full extent but a lot of sort of the much of the extent of how. Harrowing and violent the scene inside the capitol had been. That the president continue to doubled down on this false claim of election fraud he said these are the things and events that happened. When you know secret election victory a landslide victory is stolen. So in mean you know a very effective presentation I think. The house managers and made the case that you know an offense against. That sort of polity or the body politic. Was exactly the kind of conduct that the framers had in mind when they drafted impeachment clause of the constitution. But it's harder to think of turn of Starker example of high crime a misdemeanor inciting violent mob to attack. A coequal branch of government and that for that reason he warrants. Conviction and then potential disqualification from future office holding. So it should point in particular. The rationale for why impeachment access you know we talked about that's when your on the podcast a little over a year ago. This is a political and not evil per seat so. He works differently from a criminal trial there's no finds there's no jail time at state. And it's simply weed out in the constitution as you know the consequence for treason bribery or other high crimes and misdemeanors. So in this particular keys were house impeachment managers. Casting their arguments even legal or political Turks because. You know this is ultimately you just gotta get your colleagues to see the world that we that you do. Or you know meet your case to the American public and stuck such stark terms that you shift public opinion in such a way that it becomes inevitable right. War where they are actually trying to treat this more as a criminal case review after review point by point right point that you know legally trump is liable for. Incitement of an insurrection. I think impeachment is always bow to political end a legal process. And so I don't think it's the case that we should Alter upper hands and say you know we'll obviously everyone is gonna vote their kind of partisan interest in and there's no law to speak of at all in this process. Don't think a lot of law happens outside of courts and this is that congressional law and so I think precedent matters a lot when you're talking about impeachment just that the president. That is relevant is congressional president. And so too I think that making arguments in the language of law has always happened in these impeachment proceedings. But that it's really clear that neither the managers ignored the senators voting are bound in any way by judge me blah right so for example the standard actually established in sight and in a court of law would be you know. You're making a statements that. Is intended to and is likely to cause imminent lawless actions of those are essentially the kind of that those are the requirements of incitement. But is that binding on the senate any formal way to know and I'm not sure anybody really thinks that it is. But certainly it informs the senate because you know a lot of them are players and this is a process that is a constitutional process and said they. Have always looked. To some degree to judge me plot but not understood and south to be bound by it. All that said I do think that's so incitement of insurrection is a statutory crime. And seditious conspiracy is a statutory crime so. I think that whatever happens with the final vote count here I think there's a separate set of questions about whether there could be in a criminal charges that could be brought. Against the former president based on office but. But so in terms of I think that properly understood the senator should view this as a legal process again where certain they get to decide what the laws and it's always. A little you know it's just a strange thing about impeachment which is. It's not even clear the standard of proof should be right should each senator understand himself or herself. Tip you don't have to be convinced beyond a reasonable doubt or by a preponderance of the evidence or by clear and convincing evidence these are the standards that would apply to different kinds of cases brought in court. But it's there's no settled answer to the question of how convinced. Any individual sender needs to be by the evidence in order to vote to convict the kind of all have to decide how to answer that question for themselves. You know so it's it's it's a process and they answer to that question is can I think be informed by law and that kind of way to the evidence that also. Have a heavy dose of politics. What do you didn't hear this suggestion that you made that there could be some criminal liability outside of this impeachment process but I do want to dig a little deeper into what kinds of appeals the impeachment managers. Mead. Already talking to the public more broadly where they appealing to a sense of history. War every dimension of the law Warren you know politics light. What will our constituents bankers of the Lake Powell word be trying to do the sweet. Now so you know just as the proceedings I think you know equal parts and simultaneously legal and political I think they are simultaneously talking to the senators and the public and of course if they convince the public successful enough the public will in turn to pressure on senators and that could affect the votes. But I think that I think that there are also very much. Trying to write a first draft of history in terms of the meeting these. Proceedings and I think that in particular and closing summation that congressman raskin gave. In a first he said one of the things he said was can we just all the grief and incitement of insurrection. It's an impeachable offense like he would like the historical record to make that fact which doesn't seem like it should be subject to real debate or dispute. I'm but I think he would like it clearly. Stated by the senate. Maybe even stated in clear terms by the centers who vote to acquit. That the conduct is impeachable conduct. That it warrants a conviction but you know maybe I I think because of these fairly you know we can jurisdictional concerns because he is a former president. The senators are voting to quit but that the conduct itself it's not conduct. That's is not worthy of the ultimate constitutional. Sanctioned site the other top they're talking to both they're writing a first draft of history and I do think that. It's important to bear in mind and an impeachment you know I I. I think it's a mistake to assume that it's a foregone conclusion that the votes aren't there but of course it is very likely the case of the votes aren't there. But even if the votes aren't there I think that it could be a quick a pretty meaningful say it's you know for creating a public art and historical record of the offense that the sixth. That I think is hugely important one whether it's enough but it should be another nine elevenths style commission does her further. Developed the record because there still things we don't know a lot of and I think it's a separate question that this is an important I think first draft of historical record. But it's also the case and I think that that trump could be really politically wounded by these proceedings. Even if he is not. Convict at and disqualified. Neglect Andrew Johnson who added we talked about an eighteen you know we talked at the first time in tuchman impeachment and 1868 Andrew Johnson as the first president. To be impeached he is acquitted by a single vote. In the senate but he's only politically wounded by the process he doesn't 1868 he doesn't even get his party's nomination. To run for president later that same here so that's a political consequence he doesn't you know he finishes his term he's not removed. But it's significant sort of what it does his political trajectory. And in his or make the argument in the budget different directions about what the impeachment of Bill Clinton did Ted know Clinton sort of legacy in stature in history but either way. It matters. Two presidents and it matters from the perspective of history of presidents are subject to impeachment and trial. It's I think there is independent value and meaning in these proceedings regardless of ultimate vote. You mention those. Jurisdictional claims and that was what the first day the impeachment trial was focused on essentially whether or not the senate can even convict. A former president there's no longer in office. Now the majority of Republicans came down on the side it is you know not constitutional to convict a president that is no longer office. What does the you know legal background say in terms of the answer to that question. I think that the pretty clear we have authority is in favor of department's ability of holding a trial for former official in particular where. The offense occurred while an individual was holding public office and gritty impeachment and house occurred. While the individuals holding public office both of those things are of course advocates here. I'm so you know we really only have two precedents for it so in 1792. A little later seventeen to 1790s. Senators actually impeached we now believe it to be decay he can to beat senator but you know first decade of the country's history it was a totally clear. And so he was impeached and tried. After he'd already been expelled from the scent so that's sort of important precedent won the next when his 1876 William bell map was a secretary of war. And you know losing key involved in a corruption scandal and resigned and then was impeached and tried again after his departure from office. And the same kinds of jurisdictional questions a rose 1976 they congress debated whether it had the jurisdiction to hold the trial and conclude that it did. I'm so that's really important legal precedent again not judge him in congressional precedent but. You know congress has considered and answered this question before has decided it has jurisdiction to try farmer officials. And you know the two other things I'll say one is you know when you're going constitutional interpretation. I drafting history matters and sometimes we constitutional British history matters. And and all the framers of the constitution were at the constitutional convention debating. Drafting of the impeachment clauses. There that they were very well aware of the fact that impeachment of acts officials. Were customary practice in. Britain that there was one ongoing at the time the constitution is drafted while they were at the constitutional convention they talked about. The case of Warren Hastings who was an ex official who is currently on trial then for. You know various offenses. I'm so they were familiar with this was also the case and in a lot of state constitution's impeachment explicitly extended to acts officials. So this sort of the legal kind of culture of the moment and it seems pretty clear that the intended when he included impeachment in the constitution to reach ex officials. I'm an in the last you know I think reason the jurisdictional arguments are week. Is just a practical one right the idea that. Egregious presidential misconduct if it happens late enough in a term would escape its ultimate constitutional sanction. Just feels like an unworkable. Kind of constitutional role to me and not one that the framers would ever have intended. And so for all these reasons and into the arguments against restrictions are weak and that's where the we'd have the authority is everyone whose book series that discretion has basically come out wit as described. But it's not if frivolous argument you don't want any private official being subject to impeachment right there you either have to be some limit. But here I think. You know. Again he was in office when misconduct occurred he was an office when he was impeached there was no time to try him prior to January 20. I'm so I think the senate in a pretty clearly to us have jurisdiction over the trial. So some Republicans are still. Making the case that day as senators the president no longer an office did you do not have the right cute convict. That question was saddled on Tuesday. But can they still use that as an argument for why they won't convict. When the vote comes down either I guess early next week. You know raskin really tried to make the argument today that they don't think jurisdictional question has been answered the senate has ruled that. It at that objection was. Rejected it on and dust there's some obligation on the part of the senators. It'll consistent with fair both oath of office in here oath as jurors to do impartial justice to consider the evidence and cast their votes on the basis of the charge and the evidence. I'm at a compelling case that the senate has decided as a body they can proceed here has affirmed that element precedent for making 76 that I just talked about. And so that's not. The we'd get that that they shouldn't be voted the hits or is at eight and that they shouldn't be voting on the basis of the jurisdictional question that is no longer alive Questar. But to return to it but if that earlier there's nothing that constrains the senators in any particular way in this Ricard. I'm and I do expect that a lot of them will point to the terrorist action no doubt and as a basis to vote to acquit. I'm because it allows them right to avoid acting can uncomfortable vote. In no based on the strength of the evidence that we've seen this week on the president's actual culpability here. So what are the other arguments that trumps defense attorneys are boring to. Nate to the public and to senators for why they should contracts truck. So I think you're gonna make it due process argument that somehow this happened to quickly and president. The president trump can have sufficient time to prepare. It's not a crazy argument but you know I think that if the throw happening in April or may be would be making the argument that. The managers regulatory and that the they didn't actually need to proceed and so I'm. I think that there was some time to prepare and I do think due process principles apply in impeachment and everybody agrees with but I do think it's right but your I think certainly be easy to processed. Principals were honored at I think they're gonna make a First Amendment argument they'll suggest that because at the core of this case against former president trump. His speech and rhetoric at that speech is protected by the First Amendment. I also don't think that dots a strong argument and in for a couple of reasons one you know even for private citizens you know speech is not absolutely the First Amendment doesn't confer apps that protections on speech there are lots of categories. A speak that are. Exempt from the protection the First Amendment and incitement of violence or incitement of lawless action. Is exempt from the First Amendment even if this were a private person speaking but in particular you're talking about a public official. You know the First Amendment actually applies in really different ways to public officials to think about public school teachers or police officers. They are subject to pretty serious disciplined made even firing for things they say all the time and that's for better or worse and that one of cases actually really problematic. But it's been well established that the person and it doesn't provide certainly anything like absolute protection for those kinds of officials for senior government officials it's in some ways even more troops to think about. President trumps senior you know cyber official crisp crabs who came out and you know it to the president's despite herself but this is a free and fair election. And the president fired. And no one thought the First Amendment. Confer Democrats any protection against fat fighter and he was subject that sanction. You know in professional sanction for the birds that he uttered. And I view this is simpler the president can speak of course they can speak but the fact that it is speech does not protect him from consequences. You know he could be he could lose. A reelection effort recchi fired by the people or he could be subject to impeachment by the congressman fact that it is speech on to me. Is not particularly relevant and at a soup and more than it I think have to be to keep everyone agree is. That certain kinds of presidential speech. Would be subject to impeachment so if the president is explicitly invited a foreign government to indeed the United States. Or pledged his feel to it right to another government. Seems pretty clear that would be a violation of his oath of office and subject him to impeachment and conviction. And so you know so if that's the case it you know there is no absolute protection. For presidential speech under the First Amendment and I don't think this speech ought to be viewed as subject to person and protection stood on the question comes to. It what is the specific speech day were referring to here today in cited Iraq or incited an insurrection. And you know how much of the argument comes down to roll did trump literally intend for the keep up the rally. To grow. And I believe destroy property and ultimately. Till people. When he sat fight like hell. You know I like how do you. Do you what that question of is is actually what. President trump. Want I mean clearly his lawyers are can argue that you know he was speaking metaphorically you know it is true that. No one is can it be able to know certainly in these proceedings may be in any proceedings what was really going on inside former president trumps mine and but we rely on circumstantial evidence to establish intent all the time in the loss so. I think that you know if there is clear enough evidence that the president understood they'll likely a fax of his speech that he understood how his words would be. Heard by his followers and then when they responded as they did when he. Actively. Continue to encourage. If not the violence itself the sort of predicate for the violence right this idea that the election had been stolen and the idea that you know under lay all of this conduct. You know it all does add up to a compelling circumstantial case that the president was aware of the effect of his words and may be that he intended. That's a fact. But again because it's this hybrid legal political process. I don't think you need to nailed down intent in the same when you would in a courtroom I do think that if you're making up this case in court that would be the major obstacle establishing presidential intent. You're just mention that the major obstacle at this work strictly a criminal proceedings would be establishing intact. You know do you think that we are going to. And are seeing what this case book look like in a criminal court. I still think more likely than not people we will not I I think that the odds are against it but I wouldn't rule it out that we could see some federal criminal prosecution and I mean I think that. In some ways. It depends a little bit on how the impeachment proceedings are understood not in any formal way you know you could charged. Former president from criminally whether he is even if he's convicted in this impeachment proceeding or if he's acquitted as seems likely none of that. Has any binding effect on federal prosecutors. But I think that in some atmosphere accents if that if it felt like there was this kind of rigorous consideration of these events and misconduct whatever the sort of ALCON there was careful and searching in serve some accountability furthering interest. I think that would reduce the likelihood that you might see some federal criminal prosecution. I'm not sure that's exactly what we've seen in this fast process. No witnesses. No I'm not sure that it feels like the events have been run to ground even in a factual sense. And so. Imagine that there will be appease some consideration inside the pot and Justice Department. Of the possibility of whether it's incitement of insurrection or seditious conspiracy of of of of some kind. A criminal charge just imagine if a private citizen called a rally and managed to rile up a mob an attack to cap the capital. You can imagine that there would be serious consideration given to bringing criminal charges against that person and so from the perspective of equal justice under law. It does seem as though. Anyone a thing I'll say as. About just a federal criminal prosecution I think there's a decent chance that he will be charged in Fulton County Georgia for his phone call to secretary of state paragraph it's Parker at least there's a inquiry ongoing right now in. You know it's that solicitation of election fraud seems like a fairly straightforward crying. So that that seems like a live possibility to me as well. Yes are we learn some of the details about that investigation that's happening in full retiree today we've also talked previously on this podcast about investigations are ongoing in New York State for example and of course you mentioned the possibility of federal prosecutors and it seems unlikely this all gets at a pretty tricky questions for democratic norms right rethink it and it. A you know democratic society well functioning democratic society. You don't criminally prosecute your political adversaries because that's a slippery slope right. You know oftentimes. In countries that have democratic backsliding or that are not democracies at all. Political. Opponents can end up in prison for you know barely any reason at all you can always drum up some kind of reason Q. You know career earnings. Obviously I'm not saying that that's what happened is happening here but that's oftentimes the concern when we talk about prosecuting acts so. The news opens I didn't Justice Department as well as the attorneys general and eating -- different states that could potentially. Bring suits are gonna have to meet this calculation. Also gonna have to consider like. While how will Republicans viewed us and do they want to retaliate by then prosecuting. Democrats. Even if they have not necessarily committed the exact same offenses. That this could spiral in some. How do you behaved there was considerations. Alone win one that. You know. We haven't had a situation where the president has. Fomented an attack on the capital before and try to overturn an election in that way to it seems pretty serious and pretty undemocratic. But there's also the slippery slope where the other side where things can ask escalate escalate quickly when you start prosecutors actress. I think it's like such an important question I mean I guest and a some kind of pollyannish when I say that I actually how old decent amount of her feet then the kind of rule of law norms of lawyers and that act act and that actually. Gives me some comfort when I worry about sort of this kind of an escalating cycle of baseless prosecutions of political adversaries I mean spirited a look at. The relatively not I'll say that the generally really strong performance of election officials read of both political parties even in the face of really intense political pressure. To deviate from both law and norms and their Serb resistance right. In pretty with George upper service front of mines were just talking about it but I think there are other tables well. I'm so I. I I guess I think that. Because these events in this conduct in this ex president is socially generous that it would be possible. To hold him potentially accountable in a criminal. Contact without necessarily opening the pandora's box you were described from although I would I would think if I were in the divide and Justice Department leadership I would absolutely one appoint a an independent counsel special prosecutor type Ted. Actually take a look at the events of January 6 whether any additional criminal charges against high level persons. Tom should be considered in addition to all these obviously there are many many churches have already been brought. I would maybe want a person to be Republican write a prominent one you know I think that there are ways that you can try to deep politicize the process of considering charges against a former president and may be the process concludes. With the decision not to prosecute and may be asked for the best but at least there's been some serious thought and consideration given to it. I'm but yeah I mean the concerns that you just voiced our I think the reason that I still think it is a one of the reasons that I still think that at the kind of concerns. Will be powerful enough that we that we are not likely to see the criminal charges brought but again I think you could find a way to do it that would at least reduce the chances and it sort of lighting a torch that we would then trip come to regret. This gets outside of the realm. Perhaps. You know constitutional law work theories surrounding the presidency. And impeachment. But we're now seeing various different. Lawsuits come out surrounding it. You know responsibility. Fort disinformation campaigns. Threatening election fraud you know we saw that Fox News has been served a two point seven billion defamation lawsuit. Along with some of our hosts and Rudy Giuliani it's it he Powell the acts trump. Attorney. And it we don't we also see that the writers themselves are in many cases being prosecuted. Com. I curious like. When we think of a different we want to make sure this never happens again while the one of the ways that the Democrats are pursuing this is through this impeachment process on this trial. You know to what extent can these arbor methods of prosecuting individual writers or defamation lawsuits are things like that how much power does not have. Q credit. Did he disinformation in the bud war you know kind of. Yeah I mean I hate to say because like my tool is the law but I do worry that. The law is not really could be able to help us answer these questions of you know sort of that that that one of the key. Sort of afflictions of the body politic the moment like is this sort of business information. But it's hard for me to see. Exactly how law as a poster kind of politics and culture and other sorts of tools are gonna fix that problem I do think that. It you know these lawsuits are significant. And I do think that the unity platform meaning of trump and a lot of others on Twitter and FaceBook really significant and those things aren't at their their. Outside of law but sort of law in farms and so right the FaceBook oversight board is considering this question right of the trump ban. And it's no legal process it's not you know bound by law but it's mystic impeachment had certain respect for it like it's kind of a political and kind of a legal process as I understand from the first batch of written opinions that they just issued. And so so so it does feel like that in that that they had been a legal remedies that you just listed are you know kind of band aids and certain of the kind of that the body politic illness is one that that. Adam remedies that aren't currently legal remedies are going to be required for. And lastly what about the future. Impeachment. This may be put similar questions to the spiral. Europe prosecuting political adversaries. As impeachment. You know obviously present front has behaved in in a wave it. No former president has or at least not any president Ian our modern art collection passed. But nonetheless. Things turn into a partisan tick for tack. Does is impeachment now kind of dislike were used to it it's something that happens. It I think impeachment talk is something that we may see more of I think that you know there there were worries. I am under bush and under Obama that we were sort of in this or entering this age of impeachment and which impeachment was going to be used. You know to routinely rank that it should be a pretty extraordinary process and not regularly invoked. And now we done it twice in two years essentially and that's you know that's half the time that we've ever done it. And so I do think that there could be reason for concern that we might be in if they're in which literally every president. Where the house is controlled by the other party which is it historically very often the case. Is going to be subject to a serious impeachment threat and I guess I think that there that we may be again moving into an era where impeachment talk. And may be in efforts by. Some members. But that actually seeing impeachment vote in the house. Is something that is still going to be relatively rare although you know we could be could see an op tech and you know there. The two thirds supermajority requirement for conviction in the senate. Is something of a pork. You know for better or worse but it could be the case that. Don't meet effort we have pretty routine impeachment in the house kind of like a you know. A no confidence vote in a parliamentary system and it's not that big. And we don't hold lengthy hearings are called in batons witnesses or anything like out of and we sort of how to vote in the senate and where not to if that. The alchemist a fourteen to Danica Patrick is as I don't think that's a good development. But I don't think it's a fatal one I do think it's possible that we can see it actually think the rhetoric the you've seen from the Republicans in congress for the most part obviously they're exceptions. Seems to reflect an appreciation that this conduct was clearly out of bounds and so I don't see them using this precedent. As a justification to launch a lot of impeachment inquiries into president Biden. At least any better serious. Are well we will leave it there thank you so much for enlightening us again all things impeachment. They thinks things are not yet. Things are much revenue. My name is to enter Tony channel is in the virtual control room you can get in touch but emailing us at podcast. -- If your friend of the show leaders are reading a review in the apple podcast store or tell someone about us extra listening and we. I.

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