Four takeaways from Day 3 of Trump's impeachment trial

1. A novel appeal to GOP senators about the consequences of acquittal

If there is one quote that summed up the Democrats' argument for conviction of Trump, it came Thursday from Rep. Ted Lieu, D-Calif.

The fact that Trump is no longer in office renders the biggest punishment of the impeachment process - removal from office - moot. Beyond that, it's about sanctioning him and preventing Trump from being able to hold high office again.

But Lieu suggested that this wasn't just about preventing Trump from running (and potentially winning) again; he said it was instead about avoiding another situation such as this.

"You know, I'm not afraid of Donald Trump running again in four years," Lieu said. "I'm afraid he's going to run again and lose, because he can do this again."

The comment was clearly intended for Republican senators who might be on the fence. The party establishment has flirted with a break from Trump in an attempt to phase him out, but that's no easy process. And of late, Republicans appear to have rallied behind the former president.

It's also logical that Democrats wouldn't be terribly concerned about Trump running again, given that he just lost and was one of the most unpopular presidents in history (despite actually coming closer than most recognize to winning reelection). Lieu tried to drive home that this was bigger than just an attempted political disqualification.

Another impeachment manager, Rep. Diana DeGette (D-Colo.), also got at this idea.

"All of these people who have been arrested and charged, they're being accountable, held accountable for their actions," she said. "Their leader, the man who incited them, must be held accountable as well."

DeGette added later: "Impeachment is not to punish, but to prevent. We are not here to punish Donald Trump. We are here to prevent the seeds of hatred that he planted from bearing any more fruit."

The concerted message on the final day of the Democrats' arguments was to warn Republicans about what they might have to account for if they let Trump slide.

But it didn't sway at least one key Republican who has suggested Trump carries blame, Sen. Mike Rounds, R-S.D.

"I think that was a very powerful statement on his part," Rounds said of Lieu's quote. "And I know I wrote that down. I know a number of my colleagues did. But once again, the issue for most of us is are you asking us to do something that we simply don't have the capability of doing because the Constitution does not give us that tool with regard to a private citizen."

 

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2. Driving home Trump's history of violent rhetoric

A big question going into the trial was how much Democrats would keep focused on Jan. 6 and Trump's effort to overturn the election, and how much they would address his past rhetoric encouraging or excusing political violence.

Rep. Jamie Raskin, D-Md., the lead impeachment manager, briefly made his team's offering on the latter Thursday.

This is hardly the first time people have tied Trump's comments to real or potential violence. It happened throughout his presidency. It happened to the point where even many Republicans now allied with Trump - who are playing down the need for his impeachment - warned about a situation similar to this, including former South Carolina governor Nikki Haley and Sen. Ted Cruz of Texas.

Raskin referred to many of these instances, including Trump jokingly praising a Montana politician for assaulting a reporter, suggesting that there were good people on "both sides" of the racist rally in Charlottesville in 2017, and his repeated suggestions both at his 2016 rallies and since that his supporters might get violent. Trump also endorsed a clip from a supporter saying "the only good Democrat is a dead Democrat" - before that supporter was arrested for his part in the Capitol riot.

Perhaps most compellingly, Raskin noted Trump's tweet to "LIBERATE MICHIGAN" in April. It came two weeks before armed protesters flooded the state Capitol there. Trump suggested approval for their show of force and, in response, urged Gov. Gretchen Whitmer, a Democrat, to negotiate with them on the coronavirus restrictions Trump had criticized. Two weeks later, protesters returned with more violent rhetoric. Then an alleged plot to kidnap Whitmer surfaced - a plot in which the alleged perpetrators echoed Trump's rhetoric.

"This Trump-inspired mob may indeed look familiar to you," Raskin said of the initial scenes at the state Capitol. "Confederate battle flags, MAGA hats, weapons, camo Army gear - just like the insurrectionists who showed up and invaded this chamber on Jan. 6. The siege of the Michigan Capitol was effectively a state-level dress rehearsal for the siege of the U.S. Capitol that Trump incited on January 6th."

Trump's defenders have focused narrowly on his speech Jan. 6, which they argue was unremarkable, and which they note included one line that those marching to the Capitol should "peacefully" protest. They have even argued that revelations about planning by some Capitol rioters suggest that they couldn't have been incited.

That ignores everything that preceded Jan. 6, and Trump's efforts to overturn the election. The fact is that there had been all kinds of suggestions that Trump's rhetoric could lead to what we saw. Trump often did far less than his critics said he should to prevent or condemn such scenes.

That might be the most significant evidence Democrats have - even if Raskin's presentation gave it short shrift, in the grand scheme of things.

 

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3. A prebuttal to Trump's free-speech defense

Democrats offered a prebuttal to an argument the Trump legal team's is expected to make Friday, that this is a matter of free speech.

Trump's team, in its briefs, hasn't actually delved into the well-established limits on free speech, which include things like incitement and defamation.

Democrats argued that even those limits are beside the point. They said Trump, as president and commander in chief, is held to a higher standard.

Rep. Joe Neguse, D-Colo., cited a letter from legal experts on free speech, including many conservatives, who rebuked the idea that such a defense applies in this case.

"That [defense] has no basis in the evidence," Neguse said. "To hear his lawyers tell it, he was just some guy at a rally, expressing unpopular opinions. They would have you believe that this whole impeachment is because he said things that one may disagree with."

Raskin said that a president's speech carries inordinate weight when it comes to things like incitement, by virtue of his oath of office.

"Nobody made Donald Trump run for president and swear an oath to preserve, protect and defend the Constitution on Jan. 20, 2017," Raskin said. "But when he did, by virtue of swearing that oath and entering this high office, he took upon himself a duty to affirmatively take care that our laws would be faithfully executed under his leadership."

Raskin also went further, noting that constitutional experts generally agree that impeachment doesn't require a statutory crime. "High crimes and misdemeanors," despite the claims of Trump's legal team both this week and in his first impeachment, doesn't actually mean felonies or what the legal code today calls misdemeanors.

"Incitement to violent insurrection is not protected by free speech," Raskin said. "There is no First Amendment defense to impeachment for high crimes and misdemeanors. The idea itself is absurd. And the whole First Amendment smokescreen is a completely irrelevant distraction from the standard of high crimes and misdemeanors governing a president who has violated his oath of office."

 

4. The participants who cited Trump

The early focus Thursday was on driving home the incitement argument by pointing to rioters who said they had been incited.

Multiple rioters who have been charged with crimes have cited perceived invitations from Trump as part of their defense. That could be convenient for them, legally speaking. But DeGette focused more on people who said these things in real time.

Among them:

One man who wrote on the day of the siege, "Trump just needs to fire the bat signal . . . deputize patriots . . . and then the pain comes."

Another man said on a live stream from inside the Capitol: "Our president wants us here. We wait and take orders from our president."

One man told a police officer who stood in his way: "There's a f------ million of us out there, and we're listening to Trump - your boss."

Another woman responded to now-President Biden's calls for peace by saying, "Does he not realize President Trump called us to siege the place?"

Another talked about calling Trump from inside the Capitol and said, "He'll be happy. . . . We're fighting for Trump."

"Have you noticed throughout this presentation the uncanny similarity, over and over and over again, of what all these people are saying?" DeGette said. "They said what Donald Trump said and they echoed each other. 'Stand back and stand by.' 'Stop the steal.' 'Fight like hell.' 'Trump sent us.' 'We are listening to Trump.' "

It's possible to cherry-pick anecdotes in a prosecution. It's also possible that people perceived a message that Trump didn't technically send. The combination of these comments and those citing Trump's invitation as part of their legal defense, though, suggests that this is something many truly believed was done at Trump's behest - or at least that it would meet with his approval.