Allies of former President Donald Trump are imploring his impeachment team to avoid one specific topic when they defend the ex-president at his Senate trial next week: the deadly riot that unfolded at the U.S. Capitol.
Despite Trump’s likely acquittal on charges that he incited an insurrection, some of his most ardent supporters fear the trial could further damage his reputation if his attorneys wade into the events of Jan. 6, when five people were killed — including a Capitol police officer — after pro-Trump demonstrators stormed the halls of Congress.
The former president, whom House Democrats have accused of inciting the rioters at a rally earlier the same day, is already hemorrhaging support within the GOP. Recent public polls have shown a sharp decline in support among Republican voters for a potential Trump comeback bid in 2024. And a widely televised trial that reminds voters and lawmakers of the disturbing moments when MAGA devotees assaulted law enforcement officials and broke into the Capitol building could harm his future political aspirations even more.
“The Democrats have a very emotional and compelling case,” said former White House chief strategist Steve Bannon. “They’re going to try to convict him in the eyes of the American people and smear him forever.”
Trump’s legal team appears to have similar trepidations that next week’s proceedings will turn into a high-profile retelling of the riots and his role in them. To prevent that from happening, his lawyers have centered their case on whether it is constitutional to impeach a president after he’s left office. They also plan to argue that he did not engage in insurrection, saying his fiery speech on the ellipse of the White House was protected by the First Amendment, without indulging a lengthy discussion about what happened on Jan. 6.
“We don’t need to focus on Jan. 6 because this is unconstitutional,” said a person familiar with the strategy, who was not authorized to speak publicly. “There’s a lot of legal technical arguments that are going to be discussed.”
The concern among Trump’s allies that the trial will be a relitigation of the events at the Capitol underscores the degree to which next week is being viewed as a public relations matter for the optics-obsessed former president. It was notable on Thursday that in a letter dismissing the House impeachment managers’ calls for Trump to testify at the trial, the ex-president’s lawyers decried the request as a “public relations stunt.”
Still, there is little Trump’s team can do to stop the trial from veering towards a discussion of Jan. 6, since the impeachment managers are likely to focus intensely on the riots — and could, indeed, call witnesses to testify about what happened. In advance of that happening, top Republicans have begun to warn that Democrats are trying to score political points rather than address substantive constitutional matters.
“I think we all know what happened there, and I think that was reckless,” Sen. John Cornyn, R-Texas, said of Trump’s speech and riots that occurred after. “But I think the Democrats are wanting to make a statement rather than to provide a fair process by which this could actually be considered in a constitutional way.”
People familiar with Trump’s strategy say his defense attorneys David Schoen and Bruce Castor hope to keep the trial “short and sweet” — not wanting to entangle themselves in a lengthy debate over whether their client’s comments at the “Stop the Steal” rally outside the White House qualify as inciting speech, or legitimize the prosecution’s arguments by focusing on Jan. 6. Instead, they plan to keep their defense narrowly tailored to the question 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 that 17 GOP members will join Democrats to convict the former president.
In light of that, some allies are pressing him to use the trial to reintroduce his claims of ballot fraud and irregularities in the 2020 election.
“He is not going to be convicted, so we must address Nov. 3. And the best place to adjudicate this is the well of the U.S. Senate,” said Bannon. “It has to be dramatic, it has to be big. It has to be the big lie versus the big steal.”
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-facing role in his impeachment trial — meaning that any mention of election fraud will be left to his attorneys to include or omit.
Attorney Alan Dershowitz, who served on the legal team representing Trump during his first impeachment trial and declined to represent Trump again, said focusing on election fraud would be a “serious mistake.” But he also said the president’s legal team should avoid ticking through what was said in the hours before the riots on Capitol Hill.
“He loses senators if he starts going into a defense of his claims on the election or his defense of his speech,” Dershowitz said. “He’s better off if he allows his lawyers to make constitutional arguments under the first amendment and the limitations of the Senate to try anyone who is no longer in office.”
Dershowitz has argued Trump’s speech, which he called “upsetting,” is protected by the first amendment and pointed to the unanimous 1969 Supreme Court case Brandenburg v. Ohio in which it was ruled that promoting the use of force is protected unless "directed to inciting or producing imminent lawless action."
Jonathan Turley, a George Washington University law professor 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 election. A team of former Trump aides who were enlisted by Miller to help prepare for next week have already developed graphics and videos that will be used by the former president’s attorneys at the trial.
“I think this trial may prove a raw reflection of our age of rage. I think both sides are looking at this trial to amplify their mutual criticisms,” Turley said. “There’s going to be a lot of heat and not much light generated from those arguments. I don’t think many minds are going to be changed either way.”
Andrew Desiderio contributed to this report.