“Democrats have a very emotional and compelling case,” said former White House chief strategist Steve Bannon. “They will try to condemn you in the eyes of the American people and stain you forever.”
Trump’s legal team appears to have similar fears that next week’s proceedings will turn into a high-profile account of the riots and their role in them. To prevent this from happening, his lawyers centered his case on whether it is a president’s constitutional impeachment after he stepped down. They also plan to argue that he was not involved in an insurrection, saying that his fiery speech in the White House ellipse was protected by the First Amendment, without allowing a long discussion about what happened on January 6.
“We don’t need to focus on January 6 because that is unconstitutional,” said a person familiar with the strategy, who was not allowed to speak publicly. “There are many technical legal arguments that will be discussed.”
The concern among Trump’s allies that the trial will be a relaunch of events on the Capitol underscores the degree to which next week is being viewed as a public relations issue for the optically obsessed former president. It was notable on Thursday that in a letter rejecting requests by the House’s impeachment administrators for Trump to testify at the trial, the former president’s lawyers condemned the request as a “public relations coup”.
Still, there is little that the Trump team can do to prevent the trial from turning into a January 6 discussion, since impeachment managers are likely to focus intensely on the riots – and could, in fact, call witnesses to testify about what happened. Before that happened, leading Republicans began 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 it was unwise,” said Sen. John Cornyn, R-Texas, of Trump’s speech and the unrest that followed. “But I think Democrats are looking to make a statement, instead of providing a fair process by which it can really be considered constitutionally.”
People familiar with Trump’s strategy say that his defense lawyers David Schoen and Bruce Castor hope to keep the trial “short and kind” – not wanting to get involved in a long debate over whether their clients’ comments at the “Stop the Steal” rally outside the White House it qualifies as incitement to speech or legitimizes the prosecution’s arguments by focusing on January 6. Instead, they plan to keep their defense closely adapted to the issue of constitutionality.
Trump will likely be acquitted – almost four dozen Republican senators voted last week to declare Trump’s impeachment unconstitutional, leaving little chance that 17 Republican Party members will join the Democrats to condemn the former president.
In light of this, some allies are pressuring him to use the trial to reintroduce his allegations of electoral fraud and irregularities in the 2020 elections.
“He will not be convicted, so we must go to November 3rd. And the best place to judge this is the United States Senate, ”said Bannon. “It has to be dramatic, it has to be big. It has to be the big lie against the big theft. ”
Trump, whose own interest in rekindling allegations of a stolen election led to the abrupt departure of his original defense team last week, currently is unlikely to take a public role in his impeachment trial – meaning that any mention of electoral fraud will be left to your lawyers to include or omit.
Lawyer Alan Dershowitz, who served on the legal team that represented Trump during his first impeachment trial and refused to represent Trump again, said that focusing on electoral fraud would be a “serious mistake”. But he also said the president’s legal team should avoid repeating what was said hours before the Capitol riots.
“He loses senators if he starts defending his claims in the election or defending his speech,” said Dershowitz. “He will be better off if he allows his lawyers to make constitutional arguments under the first amendment and the Senate’s limitations on judging anyone who is no longer in office.”
Dershowitz argued that Trump’s speech, which he called “disturbing”, is protected by the first amendment and pointed to the 1969 Supreme Court unanimous case Brandenburg v. Ohio in which it was decided that the promotion of the use of force is protected, unless it is “aimed at inciting or producing imminent illegal 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 hoped Trump’s defense would show clips of Democratic lawmakers making equally heated statements about the election. A team of former Trump advisers who was summoned by Miller to help prepare for the coming week has already developed graphics and videos that will be used by the former president’s lawyers at the trial.
“I think this judgment could be a crude reflection of our era of anger. I think that both sides are looking at this trial to broaden their mutual criticism, ”said Turley. “There will be a lot of heat and not a lot of light generated from these discussions. I don’t think many minds are going to change anyway.
Andrew Desiderio contributed to this report.