Trump’s second impeachment trial: What the opening days revealed

The second impeachment trial of Donald Trump has been taking place this week in Washington with a verdict expected as early as this weekend. The 100 members of the Senate are being asked to adjudicate Trump's guilt on one article of impeachment – incitement of insurrection – over his role in last month's attack on the Capitol. Here are some key moments so far:

The lawyers

Ever since his impeachment by the House of Representatives on January 13th, Trump has faced difficulties in securing legal representation. Late last month he retained a group of South Carolina attorneys on the recommendation of senator Lindsey Graham. But the relationship broke down amid reports that the former president refused to guarantee they would be paid.

Trump scrambled to find replacements, finally alighting on Bruce Castor and David Schoen. Castor, a former district attorney in Pennsylvania, was best known for declining to prosecute Bill Cosby, who was later tried and convicted of aggravated indecent assault. Schoen, a criminal lawyer, has taken on a variety of cases in his career, including once representing the Ku Klux Klan.

The performance of the two lawyers has been patchy to say the least. On the opening day, Astor rambled through a 50-minute presentation which struggled to make a coherent legal point, finally admitting that he and Schoen had switched course because the prosecution had been so strong.

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Schoen performed better on Friday, and led the defence arguments along with Michael van der Veen, a Philadelphia-based lawyer who was added to the team, while Castor delivered the closing arguments.

Democrats, in contrast, were infinitely better prepared and more persuasive during their two days of arguments. Led by former constitutional law professor turned politician Jamie Raskin, they held the attention of the Senate and the nation as they set out the case against Donald Trump.

New evidence

Prosecutors had one distinct advantage going into this trial. While Trump’s first impeachment centred on the relatively abstract discussion of a phone call with the Ukrainian president, this time the 100 senators who serve as jurors personally lived through the events of January 6th.

The fact that so much of the Capitol Hill riot was captured on camera also meant that senators, and the public at large, were already familiar with the events of January 6th.

But the House impeachment managers also offered new evidence, using surveillance recordings from inside the Capitol and bodycam footage from Capitol police officers. New footage showed former vice-president Mike Pence being evacuated from the chamber, and senator Mitt Romney walking towards the rioters before being shepherded away by a police officer.

Video clips also showed new evidence of the violence inflicted on law enforcement by the mob of Trump supporters and acted as a reminder that more than 200 police officers were injured, some seriously.

The prosecutors’ case

The nine House impeachment managers made a series of arguments as they laid out the incitement charges against the former president. Zoning in on Trump’s speech and tweets on the day of the riot, they argued that the former president actively encouraged his supporters’ violence.

They argued that the events of January 6th were pre-planned. The date for the protest was far from arbitrary but chosen to coincide with the meeting of the joint houses of Congress – a rare event – to certify the election results. "He made sure they had advance notice – 18 days' advance notice," said Democrat Joe Neguse as he combed through Trump's tweets.

As well as deliberately inciting the attack, they said that he did nothing to stop it once it became clear it was escalating. In particular, they highlighted a tweet sent around four hours after the rioting began.

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long,” he wrote. “Remember this day forever!”

The prosecutors also presented extensive quotes from rioters claiming that they had been invited by the president, in essence arguing that the uprising would not have taken place without the instruction of the president.

“I thought I was following my president,” said one supporter. “He asked us to fly there, he asked us to be there.”

The defence case

Trump’s defence team went on the offensive on Friday, claiming that efforts to impeach the president were part of a campaign of “retribution”.

Playing tapes of Democrats calling for Trump to be impeached as far back as 2017, they argued that the trial was politically-motivated. They also drew a comparison between Trump’s much-quoted call for his supporters to “fight” during his speech at the Ellipse on January 6th with previous use of the word “fight” by Democrats such as Joe Biden, Nancy Pelosi and Elizabeth Warren.

However, some of the quotes used by the defence were taken out of context, for example a comment by Pelosi in 2018 when she said: “I just don’t even know why there aren’t uprisings all over the country.”

The House speaker was then referring to the public outrage over the Trump administration’s policy of separating children from their parents at the border.

A central part of the defence argument was that Trump’s comments were protected by the first amendment right to free speech, dismissing the prosecutor’s argument that these rights only go so far for public officials, particularly those who incite violence.

The lawyers also argued that the “intent” clause that is needed to pursue incitement charges was not applicable in this case. “The president clearly deplores rioters and political violence and did so throughout his term as president,” they said.

The verdict

For many senators, Trump’s innocence was pre-determined, and it’s unlikely that the required number of Republicans – 17 – will vote to convict him. However, some defections could damage him. In particular, much focus will be on Senate minority leader Mitch McConnell, who broke with the president in a speech just before the Capitol was breached on January 6th.

Even if Trump is acquitted, Democrats are hoping that the court of public opinion will judge him harshly. Already there are signs that the former president’s legacy has been tainted as the nation relives the events of January 6th, and that could hurt his election prospects if he decides to run again.

Nikki Haley, a former UN ambassador and possible presidential candidate in 2024, broke with her one-time ally in an interview published in Politico on Friday. "We need to acknowledge he let us down . . . We shouldn't have followed him," she said.