“The Democrats have a very emotional and compelling case,” said Steve Bannon, former White House chief strategist. “They’re going to try to condemn him in the eyes of the American people and smear him out forever.”
Trump’s legal team appears to have similar trepidation that next week’s proceedings will culminate in a high-profile retelling of the riots and his role in it. To avoid that, his lawyers have focused their case on whether it is constitutional to impeach a president after he leaves office. They also plan to claim he did not participate in uprising, saying his fiery speech on the White House ellipse was protected by the First Amendment, without indulging in a lengthy discussion of what happened on January 6. has happened.
“We don’t need to focus on January 6 as this is unconstitutional,” said a person familiar with the strategy and not authorized to speak in public. “There are many legal-technical arguments that will be discussed.”
Concerns among Trump’s allies that the trial will be a relitigation of events at the Capitol underlines the extent to which next week is seen as a public relations issue for the optics-obsessed former president. It was noteworthy on Thursday that in a letter calling on Trump’s impeachment managers to testify at trial, the ex-president’s lawyers denounced the request as a “ public relations stunt. ”
Still, there is little that Trump’s team can do to keep the trial from shifting to a Jan. 6 discussion, as impeachment managers are likely to focus intensely on the riot – and indeed can call witnesses to testify about what happened. . Before that happens, top Republicans have started to warn that Democrats are trying to score political points rather than address substantive constitutional issues.
“I think we all know what happened there, and I think that was reckless,” said Senator John Cornyn, R-Texas, of Trump’s speech and riots that followed. “But I think the Democrats want to make a statement instead of offering a fair trial that would actually allow this to be considered in a constitutional way.”
People familiar with Trump’s strategy say his lawyers, David Schoen and Bruce Castor, hope to keep the trial ‘short and sweet’ – because they don’t want to get themselves caught up in a lengthy debate about whether or not their client’s comments at the Stop the Steal meeting outside the White House qualifies as an inflammatory speech, or legitimizes the prosecution’s arguments by focusing on January 6. Instead, they intend to keep their defense strictly in line with the issue of constitutionality.
Trump is likely to be acquitted – nearly four dozen Republican senators voted last week to declare Trump’s impeachment unconstitutional, leaving little chance of 17 GOP members joining Democrats to condemn the former president.
In light of this, some allies are urging him to use the process to resubmit his allegations of voting fraud and irregularities in the 2020 elections.
“He’s not going to be convicted, so we have to target November 3. And the best place to judge this is the source of the US Senate,” Bannon said. “It has to be dramatic, it has to be big. It must be the big lie to the big steel. ”
Trump, whose own interest in resurfacing claims of a stolen election led to the abrupt departure of his original defense team last week, is not currently expected to take on a public role in his impeachment process – meaning any mention of election fraud will take place. are left to its attorneys to include or omit.
Attorney Alan Dershowitz, who was a member of the legal team that represented Trump during his initial impeachment trial and refused to represent Trump again, said focusing on electoral fraud would be a “serious mistake.” But he also said the president’s legal team should avoid tapping through what was said in the hours before the riots on Capitol Hill.
“He will lose senators if he starts to defend his claims to the election or his defense of his speech,” Dershowitz said. “He is better off allowing his lawyers to make constitutional arguments under the First Amendment and the Senate’s restrictions on trying anyone who is no longer in office.”
Dershowitz has argued Trump’s speech, which he called “ troubling, ” is protected by the First Amendment and pointed to the 1969 unanimous Supreme Court case. Brandenburg v Ohio which stipulated that the promotion of the use of force is protected unless “aimed at instigating or inducing threatening lawless action”.
Jonathan Turley, a law professor at George Washington University who met with Senate Republicans last week to outline the unconstitutionality of the trial, said he expects Trump’s defense to show clips of Democratic lawmakers making equally heated claims. about the elections. A team of former Trump aides brought in by Miller to help prepare for next week has already developed images and videos that will be used by the former president’s lawyers during the trial.
I think this process could be a rough reflection of our anger time. I think both sides are looking at this process to reinforce their mutual criticism, ”said Turley. ‘There will be a lot of heat and not much light will be generated by those arguments. I don’t think many people will change anyway. ”
Andrew Desiderio contributed to this report.