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      House, Biden Administration Reach Deal Over McGahn Testimony

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      A terse announcement signaled a possible end to a long-running constitutional lawsuit. But former President Donald J. Trump is not a party to the arrangement.WASHINGTON — The Biden administration and House Democrats have reached a tentative deal to allow President Donald J. Trump’s former White House counsel, Donald F. McGahn II, to testify before Congress about Mr. Trump’s efforts to obstruct the Russia inquiry, according to a court filing late Tuesday.The deal appears likely to avert a definitive court precedent that would draw a clear line in an ambiguous areas: the scope and limits of Congress’s constitutional power to compel testimony for its oversight responsibilities, and a president’s constitutional power to keep secret conversations with a White House lawyer.An appeals court had been set to hear arguments on the case next week, but lawyers for the Justice Department, which has been defending Mr. McGahn since 2019 against a House subpoena seeking to compel his testimony, and for the House of Representatives asked the court in a joint letter to drop that plan as mooted by the deal.“The Committee on the Judiciary and the executive branch have reached an agreement in principle on an accommodation and anticipate filing, as soon as possible, a joint motion asking the court to remove this case from the May 19, 2021, oral argument calendar in order to allow the parties to implement the accommodation,” the letter said.What to do about the subpoena case, which President Biden inherited from the Trump administration, has been a rare locus of institutional disagreement among Democrats in the two branches.Lawyers in the Biden White House have been hesitant about establishing a precedent that Republicans might someday use to force them to testify about their own internal matters. House Democrats under Speaker Nancy Pelosi have been determined to push forward after frustration that the Trump administration’s uncompromising approach and litigation strategy ran out the clock, preventing any testimony by Mr. McGahn before the 2020 presidential election.The two sides had been negotiating for several months, leading to delays in the appeals court case. The filing was terse and offered no details about the deal, including what limits, if any, there would be — like whether Mr. McGahn would testify in public and the scope of what lawmakers could ask him to disclose.But the filing also flagged a potential wild card: “Former President Trump, who is not a party to this case, is not a party to the agreement in principle regarding an accommodation,” it said.That absence leaves open the question of whether Mr. Trump could try to intervene to block Mr. McGahn from testifying by asserting executive privilege. An attempt to invoke it by Mr. Trump would raise novel questions about the extent to which a former president may assert the privilege when the incumbent president declines to do so.Should Mr. Trump try to intervene, a rare but limited precedent is a 1977 case, Nixon v. Administrator of General Services, in which the Supreme Court ruled that Richard M. Nixon could assert executive privilege claims over official records from his White House even though he was no longer the president — but it also weighed that assertion against the contrary view of Jimmy Carter, the president at the time.That dispute, however, centered on control of Nixon-era White House documents, not a subpoena for a former White House lawyer’s testimony.The present dispute centers on the House Judiciary Committee’s desire to question Mr. McGahn about matters related to his role as a key witness in the report by the special counsel, Robert S. Mueller III, about efforts by Mr. Trump to obstruct the Russia investigation.After the Justice Department made most of the report public, Democrats on the Judiciary Committee subpoenaed Mr. McGahn to testify. After he refused to appear, on Mr. Trump’s instructions, the committee sued.The case has gone through several rounds of convoluted legal fights over constitutional issues that have lacked definitive precedents because previous disputes had generally been resolved with a negotiated compromise, averting a need for a court ruling.But the lawsuit over the McGahn subpoena is one of an unprecedented number of cases pitting the two branches against each other in court that arose after Democrats took the House in the 2018 midterm elections and Mr. Trump vowed to stonewall “all” subpoenas.First, the Justice Department under Mr. Trump had argued that Mr. McGahn was “absolutely immune” from any compelled appearance before Congress to testify about his work duties. Last year, the full District of Columbia Circuit rejected that theory.The Justice Department then continued to fight the subpoena on other legal grounds, arguing that Congress had no “cause of action” that authorized it to sue the executive branch. (The executive branch has taken that position under administrations of both parties, and the Biden administration had signaled that it was prepared to keep arguing it.)The apparent resolution of the McGahn subpoena case — unless Mr. Trump disrupts it — is similar to a dispute in 2009, when President Barack Obama took office and inherited a House lawsuit over a subpoena for testimony by President George W. Bush’s former White House counsel Harriet Miers related to the firings of United States attorneys.The Obama administration, a lawyer for the House and a legal representative of Mr. Bush worked out a deal under which Democrats were able to confidentially interview Ms. Miers about the topic, with limits. That accommodation mooted the case, so the District of Columbia Circuit never issued a binding ruling, leaving the legal questions it raised unresolved. More

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      Constitutional Challenges Loom Over Proposed Voting Bill

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      The sprawling legislation, known as H.R. 1, could result in lawsuits leading to a dozen Supreme Court cases, legal experts said.WASHINGTON — If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures.But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard.The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.The bill’s opponents say that it is, in the words of an editorial in The National Review, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.”More measured critics take issue with specific provisions even as they acknowledge that the very nature of the bill — a grab bag of largely unrelated measures — would make it difficult to attack in a systematic way. In that respect, the anticipated challenges differ from those aimed at the Affordable Care Act, some of which sought to destroy the entire law.John O. McGinnis, a law professor at Northwestern University, said the bill went too far, partly because it was first proposed as an aspirational document rather than a practical one in 2019, when Republicans controlled the Senate and it had no hope of becoming law.“It seems very willing to brush past, at least in some cases, some relatively clear constitutional provisions,” he said, citing parts of the bill that require presidential candidates to disclose their tax returns and force advocacy groups to disclose their contributors.In March, 20 Republican state attorneys general said they were ready to litigate. “Should the act become law,” they wrote in a letter to congressional leaders, “we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections and the rights of our citizens.”Representative John Sarbanes, Democrat of Maryland and one of the lead authors of the package, said drafters had written it with a fusillade of Republican legal challenges in mind and were confident that it would “survive the great majority of them” in the Supreme Court.“I’m extremely comfortable that we built this to last,” Mr. Sarbanes said. “We think that the components are ones that are well girded against constitutional challenge — even by a court that we can imagine will probably start from a place of favorability to some of these challenges.”Democrats have made the bill a top legislative priority. But with Republicans united in opposition in the Senate, its path forward is rocky.Before a key committee vote this month, proponents of the overhaul are expected to introduce a slew of technical changes meant to address concerns raised by state elections administrators. But pushing it through the full chamber and to President Biden’s desk would require all 50 Senate Democrats to agree to suspend the filibuster rule and pass it on a simple party-line vote, a maneuver that at least two Democrats have so far rejected.Speaker Nancy Pelosi spoke at a news conference promoting H.R. 1 in March. Democrats have made the bill a top legislative priority.Anna Moneymaker for The New York TimesSome scholars have urged congressional Democrats to concentrate their efforts on narrower legislation, notably the John Lewis Voting Rights Advancement Act, which seeks to restore a key provision of the Voting Rights Act that the Supreme Court effectively eliminated by a 5-to-4 vote in 2013 in Shelby County v. Holder.The provision, the law’s Section 5, required states with a history of discrimination to obtain federal approval before changing voting procedures. In the Shelby County decision, the court ruled that the formula for deciding which states were covered violated the Constitution because it was based on outdated data.“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice John G. Roberts Jr. wrote for the majority.The John Lewis Voting Rights Advancement Act, named for the civil rights leader who served in the House for more than three decades until his death last year, responds to that invitation by updating the coverage formula. Whether the Supreme Court — which has become more conservative since 2013 — would uphold the new formula and allow Section 5 to be restored is an open question, but the Shelby County decision at least allows Congress to try.Similarly, the court’s precedents suggest that not all of the anticipated challenges to the much broader H.R. 1 would succeed.As a general matter, few doubt that Congress has broad authority to regulate congressional elections because of the elections clause of the Constitution.To be sure, the clause specifies that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”The clause’s next phrase, though, allows federal lawmakers to override most of the power granted to state legislatures: “But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”The elections clause, supplemented by other constitutional provisions, Professor Stephanopoulos wrote in an article to be published in the journal Constitutional Commentary, means that “even the bill’s most controversial elements lie within Congress’s electoral authority, and Congress could actually reach considerably further, if it were so inclined.”But he acknowledged that there was controversy over the sweep of the provision. In a majority opinion in 2013, Justice Antonin Scalia wrote in an aside that the clause “empowers Congress to regulate how federal elections are held, but not who may vote in them.” That statement was in tension with the controlling opinion in a 1970 decision that allowed Congress to lower the minimum voting age in congressional elections to 18 from 21.The Supreme Court justices last month. The court has become more conservative since 2013, when it effectively eliminated a key provision of the Voting Rights Act.Erin Schaff/The New York TimesIf the statement from Justice Scalia is followed, it would raise questions about language in H.R. 1 that seeks to restore voting rights to people with felony convictions who have completed their sentences in states that would otherwise disenfranchise them.Several scholars said the provision might be vulnerable to a legal challenge. “That’s probably the most obvious red flag,” said Franita Tolson, a law professor at the University of Southern California.The Constitution grants Congress considerably less authority over presidential elections than congressional ones, allowing it to set only the timing. But some Supreme Court opinions have said the two kinds of authority are comparable.The bill’s requirement that states create independent commissions to draw congressional districts could also lead to litigation. Such commissions were upheld by a 5-to-4 vote in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission.Justice Ruth Bader Ginsburg, writing for the majority, said Arizona voters were entitled “to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”With changes in the makeup of the Supreme Court since then, the Arizona precedent might be vulnerable, said Travis Crum, a law professor at Washington University in St. Louis.“In litigation over the 2020 election, several justices — including Justice Brett Kavanaugh — questioned the validity of that precedent,” Professor Crum said. “Given the possibility that the court might overturn that decision in the near future, it is even more imperative that Congress step in and mandate the use of independent redistricting commissions for congressional districts.”In dissent in the Arizona case, Chief Justice Roberts wrote that the Constitution specified that only state legislatures had the power to draw congressional maps. Four years later, though, writing for the majority in rejecting a role for federal courts in addressing partisan gerrymandering, he wrote about independent commissions created by ballot measures with seeming approval and said Congress also had a role to play, citing an earlier version of H.R. 1.Representative John Lewis of Georgia outside the Supreme Court in 2013. A voting bill named for him seeks to restore enforcement of Section 5 of the Voting Rights Act, after the court effectively eliminated it.Chip Somodevilla/Getty ImagesThe provision in H.R. 1 establishing a public financing system appears to be consistent with current Supreme Court precedentsIn 2011, by a 5-to-4 vote, the court struck down a different Arizona law, which provided escalating matching funds to participating candidates based on their opponents’ spending. But Chief Justice Roberts, writing for the majority in the case, Arizona Free Enterprise Club v. Bennett, indicated that more routine public financing systems remained a valid constitutional option.“We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote. “That is not our business.”Some of the disclosure requirements in H.R. 1 have drawn objections from across the ideological spectrum. The American Civil Liberties Union has said that it supports disclosures tied to “express advocacy” of a candidate’s election or defeat. The bill goes further, though, requiring disclosures in connection with policy debates that refer to candidates.That measure, two A.C.L.U. lawyers wrote in The Washington Post in March, “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”“When a group is advocating policy changes outside the mainstream,” they continued, “they need privacy protections to be able to speak freely and without fear of reprisal.”The Citizens United decision in 2010 upheld the disclosure requirements before it by an 8-to-1 vote, but a pending Supreme Court case, American for Prosperity v. Bonta, might alter the constitutional calculus.Professor McGinnis said he also questioned a provision in the bill that required leaders of organizations to say they stood by the messages in political advertisements. “This seems to me to be eating up airtime without any real justification and subjecting people to harassment,” he said.He also took issue with the bill’s requirement that presidential candidates disclose their tax returns, saying Congress cannot add qualifications to who can run for president beyond those set out in the Constitution: that candidates be natural-born citizens, residents for 14 years and at least 35 years old.A 1995 Supreme Court decision rejecting an attempt by Arkansas to impose term limits on its congressional representatives appears to support the view that lawmakers cannot alter the constitutional requirements.Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.”“The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”Nicholas Fandos More

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      How Democrats Could Have Made Republicans Squirm

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      #masthead-section-label, #masthead-bar-one { display: none }Campaign to Subvert the 2020 ElectionKey TakeawaysTrump’s RoleGeorgia InvestigationExtremist Wing of G.O.P.AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHow Democrats Could Have Made Republicans SquirmG.O.P. lawmakers were unlikely to convict Trump. But a different approach to impeachment would have been more difficult for them to ignore.Mr. McConnell, a former federal appeals court judge appointed by President George W. Bush, is a professor and the director of the Constitutional Law Center at Stanford Law School. He is the author, most recently, of “The President Who Would Not Be King: Executive Power Under the Constitution.”Feb. 13, 2021, 9:13 p.m. ETRepresentative Jamie Raskin, the lead impeachment manager, with colleagues after the Senate vote.Credit…Erin Schaff/The New York TimesProbably nothing could have moved enough Republican senators to vote to convict former President Donald Trump in his second impeachment trial.But the way the House chose to frame the article of impeachment made the prospect less likely. If the purpose of the proceeding was to produce a conviction and disqualification from future office, as opposed to mere political theater, the House should have crafted a broader and less legalistic set of charges.The sole article of impeachment was for “incitement of insurrection.” It focused on the afternoon of Jan. 6, when then-President Trump addressed an initially peaceful crowd of supporters and egged them on to go to the Capitol and to “fight like hell” against the recognition of an Electoral College victory for his opponent Joe Biden.Presumably, the drafters of the House impeachment resolution chose to frame their charge as incitement because this is an actual crime. The first impeachment of Mr. Trump was criticized (wrongly, in my view) for failing to allege a crime. But it is not necessary for an impeachment to be based on criminal conduct. As Alexander Hamilton explained in The Federalist No. 65, impeachment proceedings “can never be tied down by such strict rules” as “in the delineation of the offense by the prosecutors” in criminal trials. Rather, he said, the target of impeachment proceedings is “the abuse or violation of some public trust.”By charging Mr. Trump with incitement, the House unnecessarily shouldered the burden of proving the elements of that crime. This is not to say that senators may vote to convict only if those elements are proved, but that the terms of the impeachment article invited the defense to respond in the same legalistic terms presented by the House impeachment managers. They tried to broaden the focus during the trial, though not successfully.One element of the crime of incitement is the intent to induce imminent violence. The evidence shows that Mr. Trump was reckless and that violence was a foreseeable consequence of his incendiary speech, but a senator might reasonably conclude that it falls short of proving that he wanted his followers to assault members of Congress or to vandalize the Capitol.Moreover, the terms of the impeachment article opened the door for Mr. Trump’s defense team to play videos in which various Democrats said things that can be construed to encourage violence — a comparison that should be irrelevant but certainly muddied the waters.The House should have crafted its impeachment resolution to avoid a legalistic focus on the former president’s intent. This could have been done by broadening the impeachment article. The charges should have encompassed Mr. Trump’s use of the mob and other tactics to intimidate government officials to void the election results, and his dereliction of duty by failing to try to end the violence in the hours after he returned to the White House from the demonstration at the Ellipse.Whether or not Mr. Trump wanted his followers to commit acts of violence, he certainly wanted them to intimidate Vice President Mike Pence and members of Congress. That was the whole point of their “walk,” as Mr. Trump put it, to the Capitol. The mob was not sent to persuade with reasoning or evidence.Moreover, Mr. Trump’s actions on Jan. 6 were of a piece with attempts — nonviolent but no less wrongful — to intimidate other officials, such as Georgia’s secretary of state, to use their powers to thwart the election results. The Trump campaign had every opportunity to substantiate its claims of massive fraud in court and failed miserably to do so.By focusing the impeachment resolution on the charge of incitement of insurrection, the House made it easier for Mr. Trump’s supporters in the Senate to dismiss these acts of intimidation as irrelevant to the accusation on which they were voting.It should not be necessary to point out that the use of the presidential office to keep power after losing an election is the gravest possible offense against our democratic constitutional order — one that the authors of the Constitution specifically contemplated and sought to prevent. The violence of Jan. 6 was bad, but even if no one at the Capitol had been hurt that day, Mr. Trump’s attempts to mobilize a mob to impede the democratic process was still a high crime or misdemeanor.To make matters worse, Mr. Trump did nothing to stop the violence even when he was aware it was occurring. He did not deploy forces to the Capitol to put down the riot and protect members of Congress. He sent two messages to the rioters, but his appeals for peaceable behavior were tepid, and intermixed with words of support and affection for the rioters.Perhaps most egregious was his tweet that “Mike Pence did not have the courage to do what should have been done to protect our Country and our Constitution,” at a time when rioters were threatening to hang the vice president. We now know that a senator informed Mr. Trump of the danger to Mr. Pence — but Mr. Trump did not retract his tweet or lift a finger to protect Mr. Pence.This dereliction of his constitutional duty was wholly apart from any incitement and was an impeachable offense in itself. But it was not charged in the article of impeachment.It would be foolish to think that the vote on impeachment would come out differently if the charge had been differently framed. But if House was going to impeach, it should have framed the case to make it as difficult as possible for the Senate to acquit.It is far from clear that Mr. Trump incited the violence of Jan. 6 in a technical legal sense, but it is abundantly clear that he sought to intimidate members of Congress and other officials to block Mr. Biden’s election, and that he failed in his duty to do what he could to end the violence once it started. Those would be ample grounds for conviction, quite apart from whether Mr. Trump committed the crime of incitement.Michael W. McConnell, a former federal appeals court judge appointed by President George W. Bush, is a professor and the director of the Constitutional Law Center at Stanford Law School. He is the author, most recently, of “The President Who Would Not Be King: Executive Power Under the Constitution.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Trump’s Lawyers Deny He Incited Capitol Mob, Saying It’s Democrats Who Spur Violence

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentFriday’s HighlightsDay 4: Key TakeawaysWhat Is Incitement?Trump’s LawyersAdvertisementContinue reading the main storySupported byContinue reading the main storyTrump’s Lawyers Deny He Incited Capitol Mob, Saying It’s Democrats Who Spur ViolenceThe former president’s legal team rested its case without using even a quarter of the 16 hours allotted to it.Michael T. van der Veen, one of former President Donald J. Trump’s lawyers, on Friday before presenting the defense’s case.Credit…Erin Schaff/The New York TimesPeter Baker and Feb. 12, 2021Updated 8:04 p.m. ETFormer President Donald J. Trump’s legal team mounted a combative defense on Friday focused more on assailing Democrats for “hypocrisy” and “hatred” than justifying Mr. Trump’s own monthslong effort to overturn a democratic election that culminated in last month’s deadly assault on the Capitol.After days of powerful video footage showing a mob of Trump supporters beating police officers, chasing lawmakers and threatening to kill the vice president and House speaker, Mr. Trump’s lawyers denied that he had incited what they called a “small group” that turned violent. Instead, they tried to turn the tables by calling out Democrats for their own language, which they deemed just as incendiary as Mr. Trump’s.In so doing, the former president’s lawyers went after not just the House Democrats serving as managers, or prosecutors, in the Senate impeachment trial, but half of the jurors sitting in front of them in the chamber. A rat-a-tat-tat montage of video clips played by the Trump team showed nearly every Democratic senator as well as President Biden and Vice President Kamala Harris using the word “fight” or the phrase “fight like hell” just as Mr. Trump did at a rally of supporters on Jan. 6 just before the siege of the Capitol.“Suddenly, the word ‘fight’ is off limits?” said Michael T. van der Veen, one of the lawyers hurriedly hired in recent days to defend Mr. Trump. “Spare us the hypocrisy and false indignation. It’s a term that’s used over and over and over again by politicians on both sides of the aisle. And, of course, the Democrat House managers know that the word ‘fight’ has been used figuratively in political speech forever.”To emphasize the point, the Trump team played some of the same clips four or five times in less than three hours as some of the Democratic senators shook their heads and at least one of their Republican colleagues laughed appreciatively. The lawyers argued that the trial was “shameful” and “a deliberate attempt by the Democrat Party to smear, censor and cancel” an opponent and then rested their case without using even a quarter of the 16 hours allotted to the former president’s defense.Representative Jamie Raskin, center, the lead House impeachment manager, on Friday at the Capitol with aides and other managers during a break in the trial.Credit…Erin Schaff/The New York TimesIn the process, they tried to effectively narrow the prosecution’s “incitement of insurrection” case as if it centered only on their client’s use of that one phrase in that one speech instead of the relentless campaign that Mr. Trump waged since last summer to discredit an election he would eventually lose and galvanize his supporters to help him cling to power.“They really didn’t address the facts of the case at all,” said Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager. “There were a couple propaganda reels about Democratic politicians that would be excluded in any court in the land. They talk about the rules of evidence — all of that was totally irrelevant to the case before us.”After the Trump team’s abbreviated defense, the senators posed their own questions, generally using their queries to score political points. The questions, a total of 28 submitted in writing and read by a clerk, suggested that most Republicans remained likely to vote to acquit Mr. Trump when the Senate reconvenes for final arguments at 10 a.m. Saturday, blocking the two-thirds supermajority required by the Constitution for conviction.Some of the few Republicans thought to be open to conviction, including Senators Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska, grilled the lawyers about what Mr. Trump knew and when he knew it during the attack. The managers have argued that it was not just the president’s words and actions in advance of the attack that betrayed his oath, but his failure to act more assertively to stop his supporters after it started.Responding to the senators, the defense lawyers pointed to mildly worded messages and a video that Mr. Trump posted on Twitter after the building was stormed calling on his supporters not to use violence while still endorsing their cause and telling them that he loved them. The managers repeated that Mr. Trump never made a strong, explicit call on the rioters to halt the attack, nor did he send help.Mr. Romney and Senator Bill Cassidy, Republican of Louisiana, zeroed in on Mr. Trump’s failure to exhibit concern for his own vice president, Mike Pence, who was targeted for death by the former president’s supporters because he refused to try to block finalization of the election. Even after Mr. Pence was evacuated from the Senate chamber that day, Mr. Trump attacked him on Twitter, saying that “Mike Pence didn’t have the courage to do what should have been done.”Senator Mitt Romney returning to the Senate chamber after a break in the trial on Friday.Credit…Brandon Bell for The New York TimesMr. van der Veen told the senators that “at no point was the president informed that the vice president was in any danger.” But in fact, Senator Tommy Tuberville, Republican of Alabama, told reporters this week that he spoke by telephone with Mr. Trump during the attack and told him that Mr. Pence had been rushed out of the chamber. Officials have said that Mr. Trump never called Mr. Pence to check on his safety and did not speak with him for days.The defense team struggled to avoid directly addressing what managers called Mr. Trump’s “big lie” that the election was stolen, which led his supporters to invade the Capitol to try to stop Congress from counting the Electoral College votes ratifying the result. Senator Bernie Sanders of Vermont, an independent who caucuses with the Democrats, challenged Mr. Trump’s lawyers to say whether they believe he actually won the election.“My judgment?” Mr. van der Veen replied derisively and then demanded: “Who asked that?”“I did,” Mr. Sanders called out from his seat.“My judgment’s irrelevant in this proceeding,” Mr. van der Veen said, prompting an eruption from Democratic senators. He repeated that “it’s irrelevant” to the question of whether Mr. Trump incited the riot.Senate Democrats dismissed the defense’s efforts to equate Mr. Trump’s actions with Democratic speeches. “They’re trying to draw a dangerous and distorted equivalence,” Senator Richard Blumenthal, Democrat of Connecticut, told reporters during a break in the trial. “I think it is plainly a distraction from Donald Trump inviting the mob to Washington.”But for Republicans looking for reasons to acquit Mr. Trump, the defense was more than enough. “The president’s lawyers blew the House managers’ case out of the water,” said Senator Ron Johnson, Republican of Wisconsin.Even Ms. Murkowski, who called on Mr. Trump to resign after the Capitol siege, said the defense team was “more on their game” than during the trial’s opening day this week, although by day’s end, she indicated to a reporter she was agonizing over the decision.“It’s been five weeks — less than five weeks — since an event that shook the very core the very foundation of our democracy,” she said. “And we’ve had a lot to process since then.”During the question period, senators closely watched for clues about where their colleagues stood. Although most lawmakers still guessed that only a handful of Republicans would vote to convict, an additional group of Republicans, including Senator Mitch McConnell of Kentucky, the minority leader, have said almost nothing to colleagues about the unfolding trial in private or during daily luncheons before it convenes, prompting speculation that they could be preparing to break from the party.Senator Mitch McConnell of Kentucky, the Republican leader, on the Senate subway before the trial on Friday.Credit…Alyssa Schukar for The New York TimesThe managers need 17 Republicans to join all 50 Democrats to reach the two-thirds required for conviction. While Mr. Trump can no longer be removed from office because his term has ended, he could be barred from ever seeking public office again.The former president had trouble recruiting a legal team to defend him. The lawyers who represented him last year during his first impeachment trial did not come back for this one, and the set of lawyers he initially hired for this proceeding backed out in disagreement over strategy. Bruce L. Castor Jr., the leader of this third set, was widely criticized for his preliminary presentation on Tuesday, including reportedly by Mr. Trump.Mr. Castor and David I. Schoen were largely supplanted on Friday by Mr. van der Veen, who has no long history with the president and in fact was reported to have once called Mr. Trump a “crook” with an expletive, a statement he has denied. Just last year, Mr. van der Veen represented a client suing Mr. Trump over moves that might limit mail-in voting and accused the president of making claims with “no evidence.”But Mr. van der Veen on Friday offered the sort of aggressive performance that Mr. Trump prefers from his representatives as he accused the other side of “doctoring the evidence” with “manipulated video,” all to promote “a preposterous and monstrous lie” that the former president encouraged violence.A personal injury lawyer whose Philadelphia law firm solicits slip-and-fall clients on the radio and whose website boasts of winning judgments stemming from auto accidents and one case “involving a dog bite,” Mr. van der Veen proceeded to lecture Mr. Raskin, who taught constitutional law at American University for more than 25 years, about the Constitution. The managers’ arguments, Mr. van der Veen said, were “less than I would expect from a first-year law student.”He and his colleagues argued that Mr. Trump was exercising his free-speech rights in his fiery address to a rally before supporters broke into the Capitol. The lawyers leaned heavily on Mr. Trump’s single use of the word “peacefully” as he urged backers to march to the Capitol while minimizing the 20 times he used the word “fight.”“No thinking person could seriously believe that the president’s Jan. 6 speech on the Ellipse was in any way an incitement to violence or insurrection,” Mr. van der Veen said. “The suggestion is patently absurd on its face. Nothing in the text could ever be construed as encouraging, condoning or inciting unlawful activity of any kind.”Bruce L. Castor Jr. and Mr. van der Veen arriving at the Capitol on Friday.Credit…Jason Andrew for The New York TimesSensitive to the charge that Mr. Trump endangered police officers, who were beaten and in one case killed during the assault, the lawyers played video clips in which he called himself a “law and order president” along with images of antiracism protests that turned violent last summer.They likewise showed video clips of Democrats objecting to Electoral College votes in past years when Republicans won, including Mr. Raskin in 2017 when Mr. Trump’s victory was sealed, comparing them with Mr. Trump’s criticism of the 2020 election. At the same time, those videos also showed Mr. Biden, then vice president, gaveling those protests out of order.Stacey Plaskett, a Democratic delegate from the Virgin Islands and one of the managers, objected that many of the faces shown in the videos of Democratic politicians and street protesters were Black. “It was not lost on me so many of them were people of color and women, Black women,” she said. “Black women like myself who are sick and tired of being sick and tired for our children.”The defense lawyers contended that Democrats were pursuing Mr. Trump out of personal and partisan animosity, using the word “hatred” 15 times during their formal presentation, and they cast the trial as an effort to suppress a political opponent and his supporters.“It is about canceling 75 million Trump voters and criminalizing political viewpoints,” Mr. Castor said. “That’s what this trial is really about. It is the only existential issue before us. It asks for constitutional cancel culture to take over in the United States Senate. Are we going to allow canceling and banning and silencing to be sanctioned in this body?”Emily Cochrane More

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      House Managers Rest Their Case Against Trump, but Most Republicans Are Not Swayed

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentTrial HighlightsReporter AnalysisDay 3: Key TakeawaysNew Footage of AttackWhat Is Incitement?Trump’s LawyersAdvertisementContinue reading the main storySupported byContinue reading the main storyHouse Managers Rest Their Case Against Trump, but Most Republicans Are Not SwayedTheir warning that the ex-president remains a danger to democracy and could foment still more violence if not barred from running for office again does not convince his fellow Republicans.Representative Jamie Raskin, the lead House impeachment manager, on Thursday before the start of the third day of former President Donald J. Trump’s Senate trial.Credit…Erin Schaff/The New York TimesPeter Baker and Feb. 11, 2021Updated 9:09 p.m. ETHouse impeachment managers wrapped up their emotionally charged incitement case against former President Donald J. Trump on Thursday by warning that he remains a clear and present danger to American democracy and could foment still more violence if not barred from running for office again.With the sounds of a rampaging mob still ringing in the Senate chamber, the managers sought to channel the shock and indignation rekindled by videos they showed of last month’s attack on the Capitol into a bipartisan repudiation of the former president who inflamed his supporters with false claims of a stolen election.“My dear colleagues, is there any political leader in this room who believes that if he’s ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way?” Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, asked the senators. “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?”The argument was meant to rebut Republicans who have said that holding an impeachment trial for a former president was pointless and even unconstitutional because he has already left office and can no longer be removed. But if Mr. Trump were convicted, the Senate could bar him from holding public office in the future, and the managers emphasized that the trial was aimed not at punishment but prevention.“I’m not afraid of Donald Trump running again in four years,” said Representative Ted Lieu, Democrat of California, another of the managers. “I’m afraid he’s going to run again and lose, because he can do this again.”In the final day of their main arguments, the managers also sought to pre-empt the defense that Mr. Trump’s legal team will offer on Friday by rejecting his claim that he was simply exercising his free-speech rights when he sent a frenzied crowd to the Capitol as lawmakers were counting Electoral College votes and told it to “fight like hell.” The First Amendment, managers said, does not protect a president setting a political powder keg and then lighting a match.“President Trump wasn’t just some guy with political opinions who showed up at a rally on Jan. 6 and delivered controversial remarks,” said Representative Joe Neguse, Democrat of Colorado and another manager. “He was the president of the United States. And he had spent months using the unique power of that office, of his bully pulpit, to spread that big lie that the election had been stolen to convince his followers to ‘stop the steal.’”Representative Joe Neguse, Democrat of Colorado and one of the impeachment managers, on Thursday at the Capitol.Credit…Erin Schaff/The New York TimesBut for all of the drama of the prosecution’s case, most Republican senators appeared unswayed and Mr. Trump seemed to retain enough support to block the two-thirds vote required under the Constitution for conviction on the single “incitement of insurrection” count. While a handful of Republican senators may break from the former president, others seemed to go out of their way on Thursday to express impatience with the trial, the second that Mr. Trump has faced.With Republican positions hardening and President Biden’s agenda slowed by the proceedings, Democratic senators began signaling that they had seen enough, too, and members of both parties were coalescing around a plan to bring a quick end to the trial with a vote on guilt or innocence as early as Saturday.Confident of acquittal, Mr. Trump was spotted on a golf course in Florida while his defense team prepared a truncated presentation to offer on Friday rather than take the full two days for arguments permitted by trial rules.After a much-panned preliminary appearance earlier this week, Mr. Trump’s lawyers planned to argue that he was being prosecuted out of partisan enmity, never overtly called for violence and was not responsible for the actions of his supporters.Republican senators exhibited little eagerness to defend Mr. Trump’s actions, instead explaining their likely acquittal votes by maintaining that it is unconstitutional and unwise to put a former president on trial and accusing Democrats who sometimes use fiery speech themselves of holding a political foe to a double standard. The Senate rejected the constitutionality argument on Tuesday on a 56-to-44 vote, allowing the trial to proceed, but Republicans said they were not obliged to accept that judgment.“My view is unchanged as to whether or not we have the authority to do this, and I’m certainly not bound by the fact that 56 people think we do,” said Senator Roy Blunt, Republican of Missouri. “I get to cast my vote, and my view is that you can’t impeach a former president. And if the former president did things that were illegal, there is a process to go through for that.”Senator Marco Rubio, Republican of Florida, offered similar reasoning. “What happened on Jan. 6 — I said it the moment it started — was unpatriotic, un-American, treasonous, a crime, unacceptable,” he said. “The fundamental question for me, and I don’t know about for everybody else, is whether an impeachment trial is appropriate for someone who is no longer in office. I don’t believe that it is.”A video of Mr. Trump that was to be played during the trial on Thursday.Credit…Erin Schaff/The New York TimesTo convict, at least 17 Republican senators would have to vote against the former president, a scenario that seemed implausible. But both sides were watching to see how many ultimately back prosecutors, which could still infuse the case with bipartisan credibility depending on the number.All eyes were on the six Republicans who voted with Democrats this week to reject Mr. Trump’s constitutional objection — Senators Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania.No other Republican has signaled readiness to vote for conviction. In fact, after sitting silent through the managers’ harrowing video presentation a day earlier, several of them on Thursday began to flaunt their fatigue with the trial as the managers made their latest arguments.Senator Rick Scott of Florida could be seen filling out a blank map of Asia. Senator Thom Tillis of North Carolina retreated to his party’s cloakroom to read on his phone. At points, a dozen or more Republican senators were away from their mahogany desks.“To me, they’re losing credibility the longer they talk,” Senator James M. Inhofe, Republican of Oklahoma, said of the managers.But the managers argued that the president’s actions posed a threat to democratic institutions, the culmination of months of incendiary lies about election fraud meant to generate support for his effort to hang onto power despite the will of the voters. In their presentations, the managers played clips showing Mr. Trump repeatedly telling backers that they had to stop the election from being finalized.They likewise made the case that Mr. Trump had shown a propensity for mob violence over the years, regularly encouraging supporters at rallies to “knock the crap” out of hecklers and praising a congressman who body-slammed a reporter as “my kind of guy.” The managers reminded the senators of Mr. Trump’s infamous comment that there were “very fine people on both sides” after a white supremacist march in 2017 in Charlottesville, Va., turned deadly and noted that he did nothing to discourage armed extremists who stormed Michigan’s statehouse last year.The Capitol has been surrounded by fencing since soon after the attack on Jan. 6.Credit…Jason Andrew for The New York TimesThey made the point that Mr. Trump not only incited the crowd on Jan. 6 but disregarded pleas from fellow Republicans to more explicitly call on the rioters to stop the attack, endangering his own vice president, Mike Pence, whom he blamed for not trying to overturn the election. Even as 16 members of his own administration quit in protest, Mr. Trump offered no remorse and defended his actions as “totally appropriate.”“President Trump perverted his office by attacking the very Constitution he was sworn to uphold,” Mr. Raskin said.Representative David Cicilline, Democrat of Rhode Island, quoted a police officer shaken by the Capitol siege and asking if this was still America.“Is this America?” Mr. Cicilline repeated, turning the query toward the senators. “What is your answer to that question? Is this OK? If not, what are we going to do about it?”In their days of presentations, the nine-member team of managers tried to apply lessons from last year’s impeachment trial of Mr. Trump. The team is generally younger with less experience in Congress — Mr. Neguse is just 36 — but collectively more polished. And they made a point of trying to avoid the endless repetition of last year’s presentations that turned off senators in both parties, keeping to a more rigorous division of labor to weave a tight narrative.Where last year’s trial allowed each side up to 24 hours over three days for arguments, this year’s managers used only about 10 of the 16 hours they were allotted. They were also less confrontational as they addressed Republican senators, who in response praised their performance even if it did not change their minds about the case. And unlike their predecessors, they had the advantage of video footage documenting the events at issue, which many of them lived through.Aware that senators want to wrap up the trial, Mr. Raskin’s team appeared unlikely to ask for witnesses, another departure from last year when a request for live testimony generated fierce debate and was eventually rebuffed by the Republican majority at the time.David I. Schoen, one of the former president’s lawyers, on Thursday at the Russell Senate Office Building.Credit…Anna Moneymaker for The New York TimesMr. Trump’s current legal team also seemed intent on trying not to tax the senators’ patience. David I. Schoen, one of the former president’s lawyers, said they would use just three to four of their 16 hours, allowing the senators to proceed to their own question-and-answer period later Friday and most likely a final vote by Saturday.Given that the senators lived through the Capitol siege, both sides indicated they were familiar enough with the issues to make a decision by the weekend.“It’s a pretty clear picture at this point,” said Senator Martin Heinrich, Democrat of New Mexico. “If you can live through that and see the totality of it in one place, and not think that these things are directly connected — that’s hard to imagine.”Emily Cochrane More

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      House Lays Out Case Against Trump, Branding Him the ‘Inciter in Chief’

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentTrial HighlightsDay 2: Key TakeawaysVideo of Jan. 6 RiotHouse ManagersTrump’s LawyersAdvertisementContinue reading the main storySupported byContinue reading the main storyHouse Lays Out Case Against Trump, Branding Him the ‘Inciter in Chief’The Democratic House impeachment managers opened their case against the former president with a narrative of his monthslong effort to overturn the election and raw footage of the Jan. 6 Capitol attack.Delegate Stacey Plaskett of the U.S. Virgin Islands, left, with House impeachment managers and staff on Wednesday during a break in former President Donald J. Trump’s Senate impeachment trial.Credit…Erin Schaff/The New York TimesFeb. 10, 2021Updated 9:48 p.m. ETWASHINGTON — The House impeachment managers opened their prosecution of Donald J. Trump on Wednesday with a meticulous account of his campaign to overturn the election and goad supporters to join him, bringing its most violent spasms to life with never-before-seen security footage from the Jan. 6 Capitol riot.Filling the Senate chamber with the profane screams of the attackers, images of police officers being brutalized, and near-miss moments in which Vice President Mike Pence and lawmakers came steps away from confronting a mob hunting them down, the prosecutors made an emotional case that Mr. Trump’s election lies had directly endangered the heart of American democracy.They played frantic police radio calls warning that “we’ve lost the line,” body camera footage showing an officer pummeled with poles and fists on the West Front of the Capitol, and silent security tape from inside showing Mr. Pence, his family and members of the House and Senate racing to evacuate as the mob closed in, chanting: “Hang Mike Pence! Hang Mike Pence!”All of it, the nine Democratic managers said, was the foreseeable and intended outcome of Mr. Trump’s desperate attempts to cling to the presidency. Reaching back as far as last summer, they traced how he spent months cultivating not only the “big lie” that the election was “rigged” against him, but stoking the rage of a throng of supporters who made it clear that they would do anything — including resorting to violence — to help him.The managers argued that it warranted that the Senate break with two centuries of history to make Mr. Trump the first former president to be convicted in an impeachment trial and disqualified from future office on a single count of “incitement of insurrection.”“Donald Trump surrendered his role as commander in chief and became the inciter in chief of a dangerous insurrection,” Representative Jamie Raskin, Democrat of Maryland and the lead manager, told the senators. They watched the footage in silence in the same spots where they had been when the mob breached the building last month.“He told them to ‘fight like hell,’” Mr. Raskin added, quoting the speech that Mr. Trump gave supporters as the onslaught was unfolding, “and they brought us hell on that day.”House managers watching the second day of the trial from an ante room off the floor of the Senate on Wednesday.Credit…Erin Schaff/The New York TimesThough the House managers used extensive video evidence of the Jan. 6 riot to punctuate their case, they spent just as much time placing the event in the context of Mr. Trump’s broader effort to falsely claim the election had been stolen from him, portraying him as a president increasingly desperate to invalidate the results.“With his back against the wall, when all else has failed, he turns back to his supporters — who he’d already spent months telling that the election was stolen — and he amplified it further,” said Representative Joe Neguse, Democrat of Colorado.After dozens of frivolous lawsuits failed, the managers said, Mr. Trump began pressuring officials in key battleground states like Michigan, Pennsylvania and Georgia to overturn his losses there. When that failed, he tried the Justice Department, then publicly attempted to shame Republican members of Congress into helping him. Finally, he insisted that Mr. Pence assume nonexistent powers to unilaterally overturn their loss on Jan. 6, when the vice president would oversee the counting of the electoral votes in Congress.“Let me be clear: The president was not just coming for one or two people, or Democrats like me,” said Representative Ted Lieu of California, looking out at senators. “He was coming for you.”At the same time, the managers argued, the president was knowingly encouraging his followers to take matters into their own hands. When an armada of his supporters tried to run a Biden campaign bus off the highway in October, Mr. Trump cheered them on Twitter. He began adopting increasingly violent language, they noted, and did nothing to denounce armed mobs cropping up in his name in cities around the country. Instead, he repeatedly invited them to Washington on Jan. 6 to rally to “stop the steal” as Congress met to formalize President-elect Joseph R. Biden Jr.’s victory.“When he saw firsthand the violence that his conduct was creating, he didn’t stop it,” Mr. Neguse said. “He didn’t condemn the violence. He incited it further and he got more specific. He didn’t just tell them to fight like hell. He told them how, where and when.”At times, the presentation, delivered by a group of Democrats with extensive courtroom experience, resembled a criminal prosecution — only in this case, the jury was made up of senators who were also witnesses struggling as they relived in graphic detail the trauma of that day.Delegate Stacey Plaskett of the U.S. Virgin Islands guided them through much of the video, including scenes of rioters inside the Capitol tauntingly calling for Speaker Nancy Pelosi and flooding into her office just after aides had raced to barricade themselves in a conference room and hid under a table.“Nancy! Oh, Nancy! Where are you, Nancy?” one of the invaders could be heard shouting in a singsong voice.“That was a mob sent by the president of the United States to stop the certification of an election,” Ms. Plaskett said. “President Trump put a target on their backs, and his mob broke into the Capitol to hunt them down.”Glued to their desks, some senators recoiled or averted their eyes from the hours of footage, including of their own evacuation as the mob closed in just down a corridor.“It tears at your heart and brings tears to your eyes,” said Senator Mitt Romney, Republican of Utah, who could be seen in one of the videos racing back toward the Senate for safety. “That was overwhelmingly distressing and emotional.”Senator Mitt Romney on Wednesday at the Capitol. “That was overwhelmingly distressing and emotional,” he said of the videos the House managers presented.Credit…Alyssa Schukar for The New York TimesSenator John Thune of South Dakota, the No. 2 Senate Republican, conceded that the managers had “done a good job connecting the dots” and recreating a “harsh reminder of what happens when you let something like that get out of hand.” Five people died in connection to the mayhem, including a Capitol Police officer, and more than 100 were injured.But for all of the power of their case, the managers’ task remained an exceedingly steep one, and it was unclear if they had made any headway. Senators voted narrowly to proceed with the trial on Tuesday, but only six Republicans joined Democrats in deeming it constitutional to judge an official no longer in office, foreshadowing Mr. Trump’s likely acquittal.Many of the same Republicans who had been hostile to hearing the case did not dispute on Wednesday the horror of the attack, but they suggested it was the rioters, not the former president who retains heavy sway over their party, who are culpable.“Today’s presentation was powerful and emotional, reliving a terrorist attack on our nation’s capital,” said Senator Ted Cruz, Republican of Texas. “But there was very little said about how specific conduct of the president satisfies the legal standard.”Short of persuading 34 Republicans to join Democrats to achieve the two-thirds majority necessary to convict, the Democratic managers directed their arguments at the American public and at history in an attempt to bury Mr. Trump’s popular appeal and lay down a clear marker for future presidents.The trial was proceeding at a blistering pace. Prosecutors were expected to take several more hours on Thursday before Mr. Trump’s lawyers will have two days to mount a defense. The Senate could render a verdict as soon as the weekend.Mr. Trump’s lawyers, who made a much-criticized debut on Tuesday, are expected to assert that the former president was not trying to incite violence or interfere with the electoral process. Rather, they will argue, he merely wanted to urge his supporters to demand general election security reforms, an argument that requires ignoring much of the evidentiary record.Though they have sought not to repeat Mr. Trump’s outlandish claims that the election was “stolen” from him, the lawyers will also insist they amount to constitutionally protected free speech for which the Senate cannot punish him.The House managers, though, argued that Mr. Trump clearly incited the attack, thus violating his oath of office to protect the Constitution. Prosecutors walked senators through his speech just before the mob closed in, playing again and again clips of him urging the thousands on hand to “fight like hell” alongside others, shot from the crowd, featuring a drastic response from the audience: “Take the Capitol.”A National Guard soldier in the Capitol Rotunda on Wednesday. Guard troops have been on patrol there since last month.Credit…Jason Andrew for The New York Times“This violent attack was not planned in secret,” Ms. Plaskett said. “The insurgents believed they were doing the duty of their president — they were taking his orders.”To bolster their analysis, the managers turned to an unlikely group: the hundreds of people already charged with executing the riot who in interviews and court records leave little doubt that they believed they were delivering to Mr. Trump what he asked for.But it was all a prelude to a vivid recreation of the attack itself meant to drive home the enormity of what the managers said Mr. Trump had unleashed. Mindful that individual lawmakers still had only a limited view of the day, they used a computer generated model of the Capitol to show in precise detail the mob’s movements over time relative to members of Congress.In one jarring scene, Senator Chuck Schumer, Democrat of New York and the minority leader at the time, was shown literally running with a security detail through the basement of the Senate in search of safety. Representative Eric Swalwell of California, another of the impeachment managers, told senators he had counted 58 steps between where senators could be seen scurrying toward a secure location and where armed extremists were massing.Instead of intervening to help as the Capitol fell, the managers asserted that Mr. Trump simply stood back and watched in a “dereliction of duty” as the second and third in line to the presidency were put in peril. Citing news reports and accounts from Republican senators themselves who contacted the White House desperate for the president to call off the attack or send in security reinforcements, the managers said the evidence suggested Mr. Trump refused because he was “delighted” with what he saw unfolding.“When the violence started, he never once said the one thing everyone around him was begging him to say,” Representative Joaquin Castro of Texas said. “‘Stop the attack.’”Emily Cochrane More

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      Trump Impeachment Team Denies Incitement in Legal Brief

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentliveLatest UpdatesKey TakeawaysReporter AnalysisWhere Senators StandHouse ManagersTrump’s LawyersAdvertisementContinue reading the main storySupported byContinue reading the main storyDenying Incitement, Trump Impeachment Team Says He Cannot Be TriedThe lengthy legal brief provided the first extended defense of former President Donald J. Trump’s conduct since the Jan. 6 assault on the Capitol. It arrived as senators locked in rules for an exceedingly fast trial.“This impeachment proceeding was never about seeking justice,” wrote Bruce L. Castor Jr., a lawyer for former President Donald J. Trump, along with the rest of his defense team.Credit…Anna Moneymaker for The New York TimesPublished More

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      Reporter Prepares to Cover His Second Impeachment Trial

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentliveLatest UpdatesWhere Each Senator StandsTrump ImpeachedHow the House VotedKey QuotesAdvertisementContinue reading the main storySupported byContinue reading the main storyTimes InsiderCovering a Trial for the Ages. Again.Nicholas Fandos, a congressional correspondent who is reporting on his second presidential impeachment, talks about what seems similar and what feels different.Nicholas Fandos, right, with Representative Adam Schiff of California in May 2019 after a meeting of House Democrats about the possibility of impeaching President Donald Trump.Credit…Erin Schaff/The New York TimesFeb. 8, 2021, 5:00 a.m. ETTimes Insider explains who we are and what we do, and delivers behind-the-scenes insights into how our journalism comes together.On Tuesday, the nation will begin only its fourth impeachment trial of a president, and Nicholas Fandos, a congressional correspondent for The New York Times, will cover his second. Mr. Fandos, who tracked every beat of the proceedings last year, will be reporting on the second trial of Donald J. Trump, who this time faces the charge of “incitement of insurrection” in connection with the Jan. 6 attack on the Capitol. In an edited interview, Mr. Fandos, who was in the building during that assault, discussed his work last year and the job ahead.Where will you be for the impeachment?Well, it’s probably going to work pretty differently than it did a year ago. I remember dozens of us crowding into the Senate press gallery talking about this virus coming out of China that was going to be a big story and nobody was going to care about the impeachment. And it kind of turned out to be true.This time around, I will probably be watching most of the proceedings from home in Washington because, like other news organizations, we’ve tried to limit our physical presence in the Capitol. Luckily, most of these proceedings are captured on C-SPAN or are livestreamed. Vaccinations are starting to get pretty common among lawmakers, but most reporters still don’t have them.How did covering the last impeachment prepare you to cover this one?It’s so wild. There have been three presidential impeachment trials in American history up to this point. So there’s a certain amount of specialized expertise you have to develop to understand the rules of impeachment and the different terms, not to mention the requirement that you have some mastery over a big, complicated political, legal and constitutional story. So, in some ways this time around, I’m lucky because I don’t need to learn the rules again.The last impeachment also involved a big investigation and learning a lot of esoteric things about Ukraine and actions by the president that happened out of public view. I was in the Capitol on Jan. 6, and I, like everybody else, had been watching as the president was trying to undermine and overturn the election results. In a lot of ways, I can understand the case more readily.What is it like to cover this trial when you were in the Capitol on Jan. 6?I have really visceral memories of that day. But as a journalist, I need to set those aside and cover the debates objectively. My own experience doesn’t have a role in that. Our job is always, at its most basic, to bear witness to events and describe what’s happening.Maybe it helps give me some additional access to the emotion and rawness that everybody that’s involved in this is experiencing. The Senate is the jury, and the members were themselves witnesses and victims, in a sense. Everybody’s in uncharted territory.What will you be doing during the trial?I’ll be following it instantaneously and also trying to step back and take a more considered look. That will include tweets, probably live chats and analysis, and short briefing items that we’ll put up on the website. Then at some point on most days, either I or my reporting partners will sit down and distill everything into a comprehensive article that will end up in the print paper the next day.What have you been doing to prepare?Both the prosecution and the defense have had to file lengthy written briefs that act as a preview of their arguments. I’m spending a lot of time trying to familiarize myself with those.I’ve also spent a lot of time going back and reading my own coverage from a year ago. It’s been really fascinating to see how many of the core issues are really the same but also different.What feels similar?The core charge against Donald Trump is in many ways the same. Essentially, he was accused of taking extraordinary, abusive steps to stay in office and to maintain his power at the expense of the Constitution and the country. And you’ll hear a lot of similar themes in the arguments this time. The defense of the president also seems similar. Basically, his lawyers are arguing that the charges are unconstitutional and unfair. I also think many of the political questions are the same. Are Republicans willing to punish and cross this figure, who may have committed these acts, but who is also the most popular figure in their party and commands a huge amount of loyalty? That political dynamic is amazingly unchanged.What feels different?Last year, this was playing out at the beginning of an election year with that momentous decision lingering. We thought then that if the Senate was a court of impeachment, then the November election was going to be the appeals court that was going to deliver the final verdict on Trump. Now that verdict has been delivered, and in a weird way the Senate is being asked to deliver another one on a slightly different question, which is whether Mr. Trump should be allowed to run for office again. It’s a similar question, but the timing changes the atmosphere and the immediacy of it.AdvertisementContinue reading the main story More