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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

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      Impeachment Case Against Trump Aims to Marshal Outrage of Capitol Attack

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentWhere Each Senator StandsSchumer’s Balancing ActTrump ImpeachedHow the House VotedKey QuotesAdvertisementContinue reading the main storySupported byContinue reading the main storyImpeachment Case Aims to Marshal Outrage of Capitol Attack Against TrumpArmed with lessons from the last impeachment trial of Donald J. Trump, prosecutors plan a shorter, video-heavy presentation to confront Republicans with the fury they felt around the Capitol riot.The House impeachment managers, including Representative Jamie Raskin, center, meeting with Speaker Nancy Pelosi shortly before voting on whether to charge President Donald J. Trump with “incitement of insurrection.”Credit…Erin Schaff/The New York TimesFeb. 7, 2021Updated 8:09 p.m. ETWASHINGTON — When House impeachment managers prosecute former President Donald J. Trump this week for inciting the Capitol attack, they plan to mount a fast-paced, cinematic case aimed at rekindling the outrage lawmakers experienced on Jan. 6.Armed with lessons from Mr. Trump’s first impeachment trial, which even Democrats complained was repetitive and sometimes sanctimonious, the prosecutors managing his second are prepared to conclude in as little as a week, forgo distracting witness fights and rely heavily on video, according to six people working on the case.It would take 17 Republicans joining every Democrat to find Mr. Trump guilty, making conviction unlikely. But when the trial opens on Tuesday at the very scene of the invasion, the prosecutors will try to force senators who lived through the deadly rampage as they met to formalize President Biden’s election victory to reckon with the totality of Mr. Trump’s monthslong drive to overturn the election and his failure to call off the assault.“The story of the president’s actions is both riveting and horrifying,” Representative Jamie Raskin, Democrat of Maryland and the lead prosecutor, said in an interview. “We think that every American should be aware of what happened — that the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal office is to make sure that such an attack on our democracy and Constitution never happens again.”Mr. Trump is unlikely to be convicted as 17 Republicans would need to join with every Democrat to reach the two-thirds majority that is needed to find him guilty.Credit…Anna Moneymaker for The New York TimesIn making Mr. Trump the first American president to be impeached twice, Democrats have essentially given themselves an unprecedented do-over. When Representative Adam B. Schiff, Democrat of California, was preparing to prosecute Mr. Trump the first time for a pressure campaign on Ukraine, he read the 605-page record of President Bill Clinton’s 1999 impeachment trial cover to cover, sending aides as many as 20 dispatches a day as he sought to modernize a proceeding that had happened only twice before.This time, a new group of nine Democratic managers need reach back only a year to study the lessons of Mr. Schiff’s prosecution: Don’t antagonize Republicans, use lots and lots of video and, above all, make succinct arguments to avoid lulling the jury of lawmakers into boredom or distraction.Mr. Trump’s lawyers have indicated that they once again intend to mount a largely technical defense, contending that the Senate “lacks jurisdiction” to judge a former president at all after he has left office because the Constitution does not explicitly say it can. Though many legal scholars and a majority of the Senate disagree, Republicans have flocked to the argument in droves as a justification for dismissing the case without weighing in on Mr. Trump’s conduct.But the lawyers, Bruce L. Castor Jr. and David Schoen, also plan to deny that Mr. Trump incited the violence at all or intended to interfere with Congress’s formalizing of Mr. Biden’s victory, asserting that his baseless claims that the election was “stolen” are protected by the First Amendment. And Mr. Castor told Fox News that he, too, would rely on video, possibly of unrest in American cities led by Democrats.The managers will try to rebut them as much with constitutional arguments as an overwhelming compendium of evidence. Mr. Raskin’s team has spent dozens of hours culling a deep trove of videos captured by the mob, Mr. Trump’s own unvarnished words and criminal pleas from rioters who said they acted at the former president’s behest.“The story of the president’s actions is both riveting and horrifying,” Mr. Raskin said in an interview. “We think that every American should be aware of what happened.”Credit…Erin Schaff/The New York TimesThe primary source material may replace live testimony. Trying to call new witnesses has been the subject of an extended debate by the managers, whose evidentiary record has several holes that White House or military officials could conceivably fill. At the last trial, Democrats made an unsuccessful push for witnesses a centerpiece of their case, but this time, many in the party say they are unnecessary to prove the charge and would simply cost Mr. Biden precious time to move his agenda without changing the outcome.“It’s not that there should not be witnesses; it’s just the practical realities of where we are with a former president,” said Daniel S. Goldman, a former House lawyer who worked on Mr. Trump’s first impeachment. “This is also something that we learned from the last trial: This is a political animal, and these witnesses are not going to move the needle.”Mr. Raskin and other managers declined to speak about strategy, but current and former officials familiar with the confidential preparations agreed to discuss them anonymously. The prosecutors’ almost complete silence in the run-up to the trial has been another departure from the strategy of Mr. Trump’s first impeachment, when Democrats set up a sizable communications war room in the Capitol and saturated the cable television airwaves in an all-out battle against Mr. Trump in the court of public opinion.They have largely left it to trusted allies like Mr. Schiff and Speaker Nancy Pelosi to publicly discuss their case and bat back criticism about why the House is pressing its case even now that Mr. Trump is out of office.“If we were not to follow up with this, we might as well remove any penalty from the Constitution of impeachment — just take it out,” Ms. Pelosi told reporters who questioned why Democrats would consume so much of Congress’s time with a former president.Key questions about the scope and shape of the trial remain unsettled. Senators spent the weekend haggling over the precise structure and rules of the proceeding, the first time in American history a former president will be put on trial.Prosecutors and Mr. Trump’s defense lawyers expected to have at least 12 hours each to make their case. Mr. Raskin, a former constitutional law professor, has been coaching his colleagues in daily meetings to aggressively winnow down their arguments, cling to narrative where possible and integrate them with the visual aids they plan to display on TVs in the Senate chamber and on screens across the country.Behind the scenes, Democrats are relying on many of the same lawyers and aides who helped assemble the 2020 case, including Susanne Sachsman Grooms from the House Oversight and Reform Committee, and Aaron Hiller, Arya Hariharan, Sarah Istel and Amy Rutkin from the Judiciary Committee. The House also temporarily called back Barry H. Berke, a seasoned New York defense lawyer, to serve as chief counsel and Joshua Matz, a constitutional expert.Barry H. Berke, left, who is serving as chief counsel in the House’s impeachment case, conferring with Mr. Raskin.Credit…Erin Schaff/The New York TimesMr. Schiff said his team had tried to produce an “HBO mini-series” featuring clips of witness testimony to bring to life the esoteric plot about Mr. Trump’s pressure campaign on Ukraine. Mr. Raskin’s may appear more like a blockbuster action film.“The more you document all the tragic events leading up to that day and the president’s misconduct on that day and the president’s reaction while people were being attacked that day, the more and more difficult you make it for any senator to hide behind those false constitutional fig leaves,” said Mr. Schiff, who has informally advised the managers.To assemble the presentation, Mr. Raskin’s team has turned to the same outside firm that helped put together Mr. Schiff’s multimedia display. But Mr. Raskin is working with vastly richer material to tell a monthslong story of how he and his colleagues believe Mr. Trump seeded, gathered and provoked a mob to try to overturn his defeat.There are clips and tweets of Mr. Trump from last summer, warning he would only lose if the election was “rigged” against him; clips and tweets of him claiming victory after his loss; and clips and tweets of state officials coming to the White House as he sought to “stop the steal.” There is audio of a call in which Mr. Trump pressured Georgia’s secretary of state to “find” the votes needed to reverse Mr. Biden’s victory there; as well as presidential tweets and accounts by sympathetic lawmakers who say that once those efforts failed, Mr. Trump decisively turned his attention to the Jan. 6 meeting of Congress for one last stand.At the center is footage of Mr. Trump, speaking outside the White House hours before the mob overtook the police and invaded the Capitol building. The managers’ pretrial brief suggests they are planning to juxtapose footage of Mr. Trump urging his supporters to “fight like hell” and march to the Capitol and confront Congress with videos posted from members of the crowd who can be heard processing his words in real time.The managers are working with material to tell a monthslong story of how they believe Mr. Trump seeded, assembled and provoked a mob of loyalists to try to overturn his loss.Credit…Jason Andrew for The New York Times“Even with this trial, where senators themselves were witnesses, it’s very important to tell the whole story,” Mr. Schiff said. “This is not about a single day; it is about a course of conduct by a president to use his office to interfere with the peaceful transfer of power.”But the proximity could also create complications. Several people familiar with the preparations said the managers were wary of saying anything that might implicate Republican lawmakers who echoed or entertained the president’s baseless claims of election fraud. To have any chance of making an effective case, the managers believe, they must make clear it is Mr. Trump who is on trial, not his party.AdvertisementContinue reading the main story More

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      Impeachment Case Argues Trump Was ‘Singularly Responsible’ for Capitol Riot

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentDivisions in the SenateList of Senators’ StancesTrump ImpeachedHow the House VotedKey QuotesAdvertisementContinue reading the main storySupported byContinue reading the main storyImpeachment Case Argues Trump Was ‘Singularly Responsible’ for Capitol RiotThe House managers cited the Constitution’s framers in urging that Donald J. Trump be convicted and disqualified from holding office. Mr. Trump’s lawyers said the Senate had no jurisdiction.“If you don’t fight like hell, you’re not going to have a country anymore,”  Donald J. Trump told his supporters at a rally in Washington on Jan. 6. Credit…Kenny Holston for The New York TimesNicholas Fandos and Feb. 2, 2021Updated 8:35 p.m. ETWASHINGTON — The House impeachment managers on Tuesday laid out their case against Donald J. Trump, asserting that he was “singularly responsible” for the deadly assault on the Capitol last month and must be convicted and barred from holding public office.In an 80-page brief filed on Tuesday, the managers outlined the arguments they planned to make when the Senate opens Mr. Trump’s trial next week, contending that the former president whipped his supporters into a “frenzy” as part of a concerted campaign to cling to power. Spinning a vivid narrative of a harrowing day when lawmakers were forced to flee as a violent pro-Trump mob breached the Capitol, the prosecutors also reached back centuries to bolster their case, invoking George Washington and the Constitutional Convention.“The framers of the Constitution feared a president who would corrupt his office by sparing ‘no efforts or means whatever to get himself re-elected,’” wrote the nine House Democrats, led by Representative Jamie Raskin of Maryland, quoting directly from the 1787 debate in Philadelphia. “If provoking an insurrectionary riot against a joint session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”In Mr. Trump’s own shorter filing, specked with typos and stripped of the former president’s usual bombast, his lawyers flatly denied that he had incited the attack and repeatedly argued that the Senate “lacks jurisdiction” to try a former president. They repeatedly urged an immediate dismissal of the single charge against him, “incitement of insurrection.”“The Senate of the United States lacks jurisdiction over the 45th president because he holds no public office from which he can be removed, rendering the article of impeachment moot and a non-justiciable question,” the lawyers, Bruce L. Castor Jr. and David Schoen, wrote in their 14-page response to the charge.Their other broad argument was that Mr. Trump’s remarks on Jan. 6 and in the weeks before were constitutionally protected. While they did not argue explicitly that Mr. Trump had won the 2020 election, as some said he wanted his legal team to do, the lawyers sought to shroud his false claims of widespread voter fraud in free-speech arguments.They effectively argued that Mr. Trump believed he “won it by a landslide,” and therefore was within his First Amendment rights to “express his belief that the election results were suspect.” His claims could not be disproved, they added, because there was “insufficient evidence.”President Biden won the election by about seven million votes, according to results certified by every state. Dozens of cases Mr. Trump brought alleging voting fraud or improprieties were tossed out or decided against him, many times by Republican-appointed judges, for lack of evidence.The impeachment filings provided the clearest preview yet of the legal strategies that are likely to shape a politically fraught impeachment trial of Mr. Trump — his second in just over a year — that is scheduled to begin in earnest in the Senate on Tuesday. They indicated that both sides expected drawn-out debates over the constitutionality of a trial, as much as Mr. Trump’s culpability for what took place.Despite their initial criticisms, a majority of Republican senators now appear to be lining up once again to acquit Mr. Trump. But the arguments could determine the difference between a near-party-line verdict like the one that capped the former president’s first trial in 2020 or a more bipartisan rebuke that could constrain any future political ambition he harbors.Though senators have yet to agree to a final set of rules to govern the proceeding, both parties appear to share an interest in an exceedingly swift trial, without new witnesses or fact-finding, that could conclude as soon as Saturday, Feb. 13. That would be far shorter than any presidential impeachment trial in history. But Republicans are eager to turn a page on a divisive former president, and Democrats are impatient to turn to advancing the agenda of the current one.The House impeachment managers, led by Representative Jamie Raskin, right, submitted an 80-page brief blaming Mr. Trump for the violent attack.Credit…Erin Schaff/The New York TimesIf Mr. Trump’s lawyers were trying to reassure Republican senators that they could dismiss the case without confronting its merits, the House managers were aiming instead to force them to confront the terror of the Capitol riot with an unusually visceral prosecution. They have compiled hours of footage from Parler, Twitter and elsewhere that they plan to play from the well of the Senate next week to compel Republicans to face Mr. Trump’s conduct head on, rather than retreating behind arguments around the process.The approach was evident in their legal brief, which was more dramatic in parts than a typical courtroom filing. It follows Mr. Trump from his early-summer warnings about a “rigged” election up to his last, futile attempts to target Congress’s Jan. 6 counting session to snatch victory away from President Biden.All the while, the managers argued, Mr. Trump was issuing a “call to mobilize” to his supporters to “stop the steal.” He invited them to come to Washington in early January. Then used a speech on the Ellipse outside the White House just before the attack to urge them to “fight like hell” and march to the Capitol to confront members of Congress and Vice President Mike Pence.The calls incited the mob to action, they argued, citing videos posted on social media in which supporters of Mr. Trump can be heard yelling “invade the Capitol building” after he urges them to “show strength.”“He summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue,” the managers wrote.Unlike the first impeachment case against Mr. Trump, which centered on his pressure campaign on Ukraine, this one has bipartisan support and the prosecutors appear poised to make frequent use of Republicans’ own criticisms of Mr. Trump. Their brief quoted Representative Liz Cheney of Wyoming, one of 10 House Republicans who voted to impeach, as well as Senator Mitch McConnell of Kentucky, the minority leader, who said publicly that Mr. Trump “provoked” the mob.In making constitutional arguments in favor of Mr. Trump’s conviction, though, they reached hundreds of years further back, arguing that Mr. Trump had not only prompted violence but threatened the tradition of the peaceful transfer of power begun by Washington. They also cited debates by the founders about who would be subject to impeachment and when, as well as a 19th-century impeachment trial of a former war secretary, to assert that the Senate clearly had a right to try Mr. Trump even after he left office.“There is no ‘January exception’ to impeachment or any other provision of the Constitution,” the managers wrote. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”They also insisted that the First Amendment right to free speech could not shield Mr. Trump from responsibility for inciting violence that would seek to do harm to the Constitution, undermining all the rights enshrined there, including free speech.The president’s filing was narrower by design, with a lengthier, more detailed brief due from his lawyers early next week. Still, the contours of their defense were becoming clear.The lawyers said Democrats had misinterpreted Mr. Trump’s actions and his intent, denying that he was responsible for the Capitol riot or that he intended to interfere with Congress’s formalizing of Mr. Biden’s win. They said his words to supporters on Jan. 6 — “if you don’t fight like hell, you’re not going to have a country anymore” — were not meant as a call to violent action, but were “about the need to fight for election security in general.”“It is denied that President Trump incited the crowd to engage in destructive behavior,” they wrote. In another section, they denied that Mr. Trump had “threatened” Georgia’s Republican secretary of state or “acted improperly” when he demanded during a January phone call that the official “find” the votes needed to overturn his loss in that state and vaguely warned of a “criminal offense.”The lawyers reprised an argument against the constitutionality of the trial popular with Republican senators. They asserted that a plain reading of the Constitution — which does not explicitly discuss what to do with an official impeached but not tried before he leaves office — does not permit the Senate to try a former president.But they also said that Mr. Trump “denies the allegation” that his claims that he won the election were false. If that argument plays a central role in the trial, Republican senators could quickly find themselves painfully wedged between a conspiracy theory they fear could do lasting damage to their party and millions of their own voters who believe it.Mr. Trump’s response appeared to be somewhat hastily assembled after the former president shook up his legal team just 48 hours before the brief was due; the response, for example, was addressed to the “Unites States Senate.”In an interview later, Mr. Schoen pointed to another potential argument that could help Mr. Trump: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that the former president was not the inciting force.“I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol. Still, he conceded the heart of the defense would lie elsewhere.Nicholas Fandos More

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      Trump's Lawyers Are Unlikely to Focus on Election Fraud Claims

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentDivisions in the SenateList of Senators’ StancesTrump ImpeachedHow the House VotedKey QuotesAdvertisementContinue reading the main storySupported byContinue reading the main storyTrump’s New Lawyers Not Expected to Focus on False Election Claims in His DefenseWhile Mr. Trump has argued for it, his lawyers will instead echo the argument of many Republicans that the impeachment trial of a former president is unconstitutional.Bruce L. Castor Jr., a former district attorney in Pennsylvania, joined former President Donald J. Trump’s legal team this weekend.Credit…Matt Rourke/Associated PressMaggie Haberman and Feb. 1, 2021Updated 10:02 p.m. ETThe new legal team that former President Donald J. Trump has brought in for his impeachment trial next week is unlikely to focus his defense on his baseless claims of widespread election fraud and instead question whether the trial is even constitutional since he is no longer president, people close to the team said on Monday.Several Trump advisers have told the former president that using his election claims as a defense for his role in the mob attack on the Capitol last month is unwise, according to a person close to the new lawyers, David Schoen and Bruce L. Castor Jr. The person said the former president’s advisers did not expect that it would be part of the arguments they make before the Senate.In an interview with The Atlanta Journal-Constitution on Monday, Mr. Schoen confirmed that he would not make that argument. “I’m not in this case for that,” he said.Mr. Schoen, an Atlanta-based criminal defense lawyer, and Mr. Castor, a former district attorney in Pennsylvania, replaced Butch Bowers and four other lawyers working with him after they parted ways with the former president.A person close to Mr. Trump said there was disagreement about the approach to strategy, as he pushed to have the legal team focus on election fraud. The person also said that the former president had no “chemistry” with Mr. Bowers, a South Carolina lawyer recommended to him by Senator Lindsey Graham, one of his most loyal supporters.A second person close to Mr. Trump said that Mr. Bowers had seemed “overwhelmed” by the case and confirmed a report from Axios that the lawyer had sought about $3 million for fees, researchers and other expenses.The new team has to file a brief with the Senate on Tuesday that will provide a first glimpse of how they plan to defend the former president. Mr. Trump never had an opportunity to offer a defense in the House impeachment proceedings because of the speed with which they were conducted.Senator John Cornyn, Republican of Texas, warned Mr. Trump’s team on Monday to stay away from rehashing his inflated grievances and debunked theories about election fraud. Better, he said, to focus on rebutting the particulars of the House’s “incitement of insurrection” charge.“It’s really not material,” Mr. Cornyn told reporters in the Capitol of Mr. Trump’s repeated claims. “As much as there might be a temptation to bring in other matters, I think it would be a disservice to the president’s own defense to get bogged down in things that really aren’t before the Senate.”Many Republicans on Capitol Hill expect the defense team to at least partly rely on their argument that holding a trial of a former president is unconstitutional. People close to the Trump legal team said that would be a main avenue of defense, and Mr. Schoen told The Journal-Constitution that the constitutional question would be key.Mr. Schoen also said he planned to argue that Mr. Trump’s language did not “constitute incitement” of the violence on Jan. 6, when a mob of Trump supporters stormed the Capitol. But not all of the former president’s advisers share the belief that such an argument should be made; some have said privately that it is unnecessary to debate the key focus of the impeachment articles.The constitutional debate around that issue — many scholars disagree, citing the fact that the Senate has tried a former official in the past — will figure significantly in the trial. In preparation, the Senate has explicitly asked both sides to address in their written briefs “whether Donald John Trump is subject to the jurisdiction of a court of impeachment for acts committed as president of the United States, notwithstanding the expiration of his term in said office.”The House managers are set to file their own, more detailed legal brief on Tuesday. The document should offer the first comprehensive road map of their argument that Mr. Trump sowed baseless claims of election fraud, summoned his supporters to Washington and then directly provoked them to confront Congress as it met in the Capitol to certify his election loss.The brief will also include an argument in favor of holding the trial, with the managers prepared to argue that the framers of the Constitution intended impeachment to apply to officials who had committed offenses while in office.A similar document from Mr. Trump’s team to expand on their initial pleading is due next week before the trial begins on Feb. 9.Some around the former president have suggested arguing against the central accusation in the impeachment article — that he incited an insurrection — and instead focusing more closely on process issues like the constitutionality of the case.While the lawyers were just named, Mr. Schoen has been speaking to Mr. Trump and others around him in an informal capacity for several days, people close to the former president said. Mr. Schoen has represented a range of clients, like mobsters and Mr. Trump’s longtime adviser Roger J. Stone Jr.Mr. Castor is best known for reaching a deal not to prosecute Bill Cosby for sexual assault when he was the district attorney of Montgomery County, Pa. He also briefly served as the state’s acting attorney general.Mr. Castor’s cousin is Stephen R. Castor, the congressional investigator who battled Democrats over Mr. Trump’s attempts to pressure Ukraine to investigate Joseph R. Biden Jr. when he was preparing to run against him. A person familiar with the discussions said that Stephen Castor had recommended his cousin to the former president.It is unclear how close the Castor cousins are. Stephen Castor is a veteran of some of Capitol Hill’s most fiercely partisan oversight disputes in the past decade. He worked on investigations into the Obama administration’s handling of an attack on the American diplomatic mission in Benghazi, Libya, and a gun trafficking program known as Operation Fast and Furious.In the meantime, the nine House impeachment managers have all but gone underground in recent days, favoring private trial preparations to the kind of TV interviews and other public appearances often used in Washington to try to shift public opinion.Democratic leaders are trying to carry out both the president’s lengthy legislative agenda and a major impeachment trial of his predecessor more or less simultaneously. The decision to maintain a low profile was apparently driven by the desire to divert as little attention as possible from Mr. Biden’s push for coronavirus relief legislation, the priority issue of his agenda.AdvertisementContinue reading the main story More

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      I’m Not Actually Interested in Mitch McConnell’s Hypocrisy

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyI’m Not Actually Interested in Mitch McConnell’s HypocrisyTo make his case for the filibuster, he has essentially rewritten the history of the Senate.Opinion ColumnistJan. 29, 2021Credit…Erin Schaff/The New York TimesOn Tuesday, Mitch McConnell, now the Senate minority leader, spoke in defense of the legislative filibuster.“When it comes to lawmaking, the framers’ vision and our history are clear. The Senate exists to require deliberation and cooperation,” McConnell declared. “James Madison said the Senate’s job was to provide a ‘complicated check’ against ‘improper acts of legislation.’ We ensure that laws earn enough buy-in to receive the lasting consent of the governed. We stop bad ideas, improve good ideas and keep laws from swinging wildly with every election.”He went on: “More than any other feature, it is the Senate’s 60-vote threshold to end debate on legislation that achieves this.”It’s hard to take any of this seriously. None of McConnell’s stated concern for the “lasting consent of the governed” was on display when Senate Republicans, under his leadership, tried to repeal the Affordable Care Act by majority vote. Nor was there any interest in “deliberation and cooperation” when Republicans wanted a new round of corporate and upper-income tax cuts.If anything, the filibuster stymies that deliberation and cooperation by destroying the will to legislate at all. It makes bipartisanship less likely by erasing any incentive to build novel coalitions for particular issues. If, under the filibuster, there’s no difference between 51 votes for immigration reform and 56 votes (or even 59), then what’s the point of even trying? Why reach out to the other side if there’s almost no way you’ll reach the threshold to take action? And on the other side, why tinker with legislation if you know it’s not going to pass? When there’s no reason to do otherwise, why not act as a rigid, unyielding partisan?It’s obvious that McConnell’s commitment to the filibuster is instrumental. The filibuster on executive branch nominations of appointees and federal judges was sacred — he condemned the Democrats’ use of the “nuclear option” to get rid of it in 2013 — until President Trump needed Neil Gorsuch on the Supreme Court and then it was bye-bye to the filibuster for Supreme Court nominees that McConnell’s predecessor as Senate majority leader, Harry Reid, had left intact. If the reconciliation process didn’t exist, and Republicans needed 60 votes for upper-income tax cuts, there’s almost no doubt McConnell would have killed the legislative filibuster in 2017, for the sake of his party’s signature priority.I’m not actually that interested in McConnell’s hypocrisy. I’m interested in his history. To make his case for the indispensable importance of the legislative filibuster, McConnell has essentially rewritten the history of the Senate. He has to create a new narrative to serve his current interests.The truth is that the filibuster was an accident; an extra-constitutional innovation that lay dormant for a generation after its unintentional creation during the Jefferson administration. For most of the Senate’s history after the Civil War, filibusters were rare, deployed as the Southern weapon of choice against civil rights legislation, and an occasional tool of partisan obstruction.Far from necessary, the filibuster is extraneous. Everything it is said to encourage — debate, deliberation, consensus building — is already accomplished by the structure of the chamber itself, insofar as it happens at all.In the form it takes today, the filibuster doesn’t make the Senate work the way the framers intended. Instead, it makes the Senate a nearly insurmountable obstacle to most legislative business. And that, in turn, has made Congress inert and dysfunctional to the point of disrupting the constitutional balance of power. Legislation that deserves a debate never reaches the floor; coalitions that could form never get off the ground.In quoting Madison, McConnell frames the filibuster as part of our constitutional inheritance. It is not. The filibuster isn’t in the Constitution. The Senate, like the House of Representatives, was meant to run on majority rule.Remember, the framers had direct experience with supermajority government. Under the Articles of Confederation, each state had equal representation and it took a two-thirds vote of the states for Congress to exercise its enumerated powers. Without the consent of nine states (out of 13), Congress could not enter treaties, appropriate funds or borrow money. And the bar to amendment, unanimity, was even higher. The articles were such a disaster that, rather than try to amend them, a group of influential elites decided to scrap them altogether.For a taste of this frustration, read Alexander Hamilton in Federalist no. 22, which contains a fierce condemnation of supermajority rule as it was under the articles:The necessity of unanimity in public bodies, or of something approaching toward it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.Hamilton is especially angry with the effect of the supermajority requirement on governance.In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.Delegates to the constitutional convention considered and rejected supermajority requirements for navigation acts (concerning ships and shipping), regulation of interstate commerce and the raising of armies. Majorities would have the final say everywhere except for treaties, amendments and conviction in an impeachment trial.To make the Senate slow-moving and deliberative, the framers would not raise barriers to action so much as they would insulate the body from short-term democratic accountability. That meant indirect election by state legislatures, staggered terms of six years and a small membership of two senators per state. And at ratification, that is where the Senate stood: a self-consciously aristocratic body meant to check the House of Representatives and oversee the executive branch, confirming its appointments and ratifying its foreign agreements.The filibuster doesn’t enter the picture until years later, as an accident of parliamentary bookkeeping. In 1806, on the advice of Vice President Aaron Burr (who thought it redundant), the Senate dropped the “previous question” — a motion to end debate and bring an item up for immediate vote — from its rules. Without a motion to call the previous question, however, an individual senator could, in theory, hold the floor indefinitely.It took 31 years for someone to actually do it. The first known filibuster took place in 1837, when several Whig senators tried unsuccessfully to block a Democratic bill to reverse an 1834 censure of President Andrew Jackson and expunge it from the congressional record. Even then, the filibuster was not widely used until the second half of the 19th century, as the parties, and thus the Senate, grew more polarized along party lines.The filibuster as we understand it developed in the 20th century. In 1917, President Woodrow Wilson called on Senate Democrats to reform the filibuster as a war measure after Republicans successfully filibustered a bill to arm merchant ships. Democrats obliged and created a “cloture” rule to end debate with a two-thirds vote of the chamber. In 1975, the Senate reduced that threshold from two-thirds to three-fifths, or 60 votes in a 100-member body.Throughout this time, filibusters were uncommon. It was perfectly possible for the Senate to debate, deliberate and come to consensus without the supermajority requirement McConnell and the Republican caucus have imposed on virtually all legislation since 2009.The point of comparison for the Senate as McConnell has shaped it is the middle of the 20th century, when a conservative coalition of Republicans and Dixiecrats made the chamber a graveyard of liberal legislation and social reform. Consensus didn’t matter. Power did. And it wasn’t until liberals wrested power from this coalition — in the House as well as the Senate — that they could take the initiative and begin work on an otherwise popular agenda.There is no question the Senate is supposed to be slow, even sluggish. But it’s not supposed to be an endless bottleneck. The framers wanted stability in government, not stagnation. What we have now, with the filibuster intact, is a Senate that can barely move.This isn’t just a problem for President Biden and the Democratic Party; it’s a problem for the entire constitutional order. Our system is built around Congress; Congress makes laws, Congress holds the purse strings, Congress hands out mandates, Congress checks the president and makes sure the judiciary stays in its lane.When Congress doesn’t act, other actors take up the slack. The story of our democracy these last 10 years is, in part, the story of how a listless, sclerotic Senate broke Congress and pushed the other branches to govern in its stead, with the president and the courts making as much policy as they can without congressional input, with all the capriciousness, whiplash and uncertainty that can come from that.If you don’t like presidents governing through executive order, then you should want an active, energetic Congress that embraces its constitutional mandate to rule over the whole country and direct its government. If you want that, you should oppose the filibuster.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