Presidential impeachment trials were once historic rarities. Those who impeached Bill Clinton had to look back over a century to hoary precedents from Andrew Johnson’s trial. Even the first impeachment of Donald Trump required members to look back to what now seems like a distant era of comparative bipartisan comity and consensus of the Clinton impeachment.
For Trump’s second impeachment trial, which begins on February 8, very little historical research is needed — the same defendant will be on trial in the Senate. The nine House managers prosecuting the case today were all in office for the last trial only one year ago, and several were on the judiciary and intelligence committees that investigated Trump for abusing his powers by holding up U.S. aid for Ukraine as a quid pro quo for Kiev to launch an investigation into the Bidens. The jury will be almost entirely the same: 90 of the 100 senators were in office for the first Trump trial. Two of the House managers from the first Trump impeachment, Jason Crow and Zoe Lofgren, told Intelligencer about what it was like to try to prosecute Trump before the Senate and to try to persuade Republican senators to convict the leader of their party.
Perhaps the biggest difference between the two trials is, as Crow noted, that the senators are not just the jurors but they are “also the victims of the crime and the trial is going to be held at the crime scene.” Unlike the first trial, which involved trying to prove that Trump extorted the Ukrainian government, there isn’t a need to establish the basic fact of the Capitol riot he incited on January 6. “I don’t think we need to spend a lot of time talking about what happened because we were all there,” said Crow, a combat veteran who helped fellow lawmakers escape the mob from the House gallery. “But what’s really important is to provide context for how we got there, how the president incited this and brought about the mob that day, which is a story that goes back weeks and months prior to the events of that day.”
Lofgren, who served as a House Judiciary Committee staffer during the impeachment investigation surrounding Watergate and was a member of the committee during the Clinton impeachment, noted that this was a much different case than the past impeachments because so much of it was in the open. “He incited a mob to go overturn the constitutional process,” said Lofgren. “It’s on tape, the tweets are out there.”
The challenge for this trial’s managers is how can they persuade the 17 Republicans necessary to join with the 50 Democrats in the Senate and convict Trump. On a procedural vote earlier last week, 45 Republican senators potentially signaled opposition to the trial moving forward, representing a return to a more partisan view of Trump’s conduct than the near-universal condemnation in the immediate aftermath of the assault on the Capitol.
“You’re speaking to the senators as jurors,” Lofgren said, “but you’re also aware that the public in the United States and around the world is looking at what you’re saying and making judgments.” Lofgren added that public opinion influences the senators. “There is a feedback loop to the extent the American public reaches a conclusion and communicates that to their employees, the Senate, and it could theoretically have an impact on what senators do.”
However, Lofgren noted that the House managers will still have to play to the individual senators just as a lawyer would try to appeal to specific jurors in the courtroom.
“I tried to engage senators, not the same ones every time but to pick up clues of how they were reacting, who they were paying attention to, and what seemed to draw their attention the most,” she said. “I think if you were presenting a case in court you’d do the same thing with jurors but obviously this is very different because it is a political process and not a strictly legal one.”
Lofgren also said that she would talk to senators during breaks on the trial. “I would always hang around — not to lobby senators because that would be inappropriate — but we had a couple of bills we passed, I figured I’m here on the floor, I can ask them about the Farm Worker Modernization Act.” She noted “while I was doing it several Republican members told me they thought I had done a good job and they appreciated how I presented the case. I thought that was very courteous of them.”
The trial, though, wasn’t just what happened inside the Senate chamber: It included extensive preparation, and Crow noted that in some ways it was similar to a regular trial. “You have a war room … and everyone’s crammed late into the night, early in the morning preparing speeches, reviewing documents and when we would do it all sit in the same conference room around the same table writing remarks, preparing for the next day, shooting ideas across to one of another.”
But all that preparation could also be for naught as new information about the riot arrives. Crow said that during the first trial there were new facts coming out on a daily basis, ranging from the allegations of Ambassador John Bolton to relevant documents “literally being released while we were sitting on the Senate floor.”
Crow recalled “one instance where a tranche of documents was released in response to a FOIA request and we printed them out that day, I took them out to the floor that evening and talked about them within a couple of hours of being released.” Crow thought the same thing “will happen in this trial as well because investigations are ongoing … we’re getting new facts and information every day.”
There will be no overlap between the managers from the first Trump impeachment and the second one. However, Crow, in particular, said he’d been talking to several of the new managers about his experience, citing Diana DeGette and Joe Neguse as well as lead impeachment manager Jamie Raskin by name.
Looking back at her experience in the first trial, Lofgren was left only with the regret that the senators did not convict Trump then, noting that even without being allowed to call witnesses, there were Republicans who told her that they proved their case. “I regret that they didn’t convict then because they would have saved the country a lot of trauma from what he did in the year since they failed to convict. It was just more of the same, only worse.” She added, “It was quite predictable.”