How the Question of Trump’s Behavior During the Capitol Assault Shook Up the Impeachment Trial

The New Yorker
Reprint

By Amy Davidson Sorkin – February 13, 2021

Former President Donald Trump standing on stage in front of a line of American flags waving in the wind.
The former President’s tweets and reports of his calls to Republican congressmen during the riot became a key part of the case against him. Photograph by Brendan Smialowski / Getty

On Friday afternoon, when senators got their chance to ask questions in Donald Trump’s second impeachment trial, one of the first came from Lisa Murkowski, Republican of Alaska, and Susan Collins, Republican of Maine. Like all of the senators’ questions, this one had been written on a yellow notecard, passed from the gallery to Patrick Leahy, Democrat of Vermont, who was presiding and then read aloud by a clerk. “Exactly when did President Trump learn of the breach of the Capitol, and what specific actions did he take to bring the rioting to an end? And when did he take them?” Murkowski and Collins wanted to know. “Please be as detailed as possible.” The two senators are among the handful of Republicans who are seen as possible votes to convict the former President for inciting an insurrection, and, for that reason alone, their question, which was directed at Trump’s lawyers, was worth taking seriously. But it also got at a central inquiry in the trial: How many people were Trump willing to see get hurt in his effort to hold on to the Presidency?

Michael van der Veen, one of Trump’s lawyers, didn’t really answer. “The House managers have given us absolutely no evidence one way or the other on to that question,” van der Veen, whose professional specialty is personal injury cases, said. This was an odd complaint, given that the question concerned his client’s knowledge and actions. Flipping through some papers, van der Veen offered that there had been “a tweet at 2:38 P.M.” on January 6th—which would have been almost half an hour after a mob seeking to disrupt the Electoral College vote tally had breached the Capitol—and so “it was certainly some time before then” that Trump had learned of the riot. (In the tweet, Trump advised the mob to be peaceful, but failed to tell them to leave the Capitol—perhaps because that was where he wanted them to be.) Van der Veen added, “That’s the problem with this entire proceeding. The House managers did zero investigation! The American people deserve a lot better than coming in here with no evidence. Hearsay on top of hearsay on top of reports that are of hearsay.” Van der Veen muttered something about due process and then, without any further attempt to answer the question, he sat down.

In one respect, his reply is an example of the dismissive, blame-shifting, reality-defying manner in which Trump’s defense has been conducted. Trump’s lawyers may have also recognized that the question of his response on January 6th has become a particularly hazardous area for him—and, indeed, for a few hours on Saturday morning, it seemed to have changed the timeline for the trial, opening the door for witnesses. The question is powerful for more than one reason. First, his reaction spoke of his intent: if he had truly been misunderstood by his supporters, who certainly seemed to believe that they were fulfilling his wishes, he might have quickly expressed shock and condemnation, told them in no uncertain terms to leave the Capitol, and rushed to send reinforcements. He, of course, did none of these things. Despite van der Veen’s claims, and even though much about how, exactly, Trump spent his time is not known, the House managers did document the former President’s inaction. It wasn’t until after 4 P.M. that he told the rioters to go home, but, in the same message, he said, “We love you,” and took the time to complain, again, about the election. As Stacey Plaskett, a House manager and a delegate representing the Virgin Islands, noted, when she got a chance to respond to the Murkowski-Collins query, the reason that the question of what Trump did to help “keeps coming up is because the answer is ‘nothing.’ ”

As Plaskett took her seat, Collins and Senator Mitt Romney, Republican of Utah, sent a question to the chair about the second aspect of Trump’s response: his attitude regarding the danger to Vice-President Mike Pence. In the days leading up to the January 6th assault, Trump had pounded home the message that he expected Pence, who was set to preside over the joint session of Congress that day, to sabotage and disrupt the electoral-vote certification. Under the Constitution, Pence did not have the power to do that, as he and many others explained to Trump. No matter: Trump drew his supporters into his effort to pressure Pence to act lawlessly. At the rally before the assault, Trump built up the expectation that Pence might still come through. “All Vice-President Pence has to do is send it back to the states to recertify, and we become President, and you are the happiest people,” he said, and added, “Mike Pence is going to have to come through for us.” When people in the mob realized that Pence had not done so, they shouted that he was a traitor and chanted, “Hang Mike Pence!” They began searching for him inside the Capitol; at about 2:13 P.M., Secret Service agents took him out of the Senate chamber, to a room where he took shelter with his family, before being moved again.

As Pence hid, the mob heard from Trump. The 2:38 P.M. tweet was not his first since the breach of the Capitol. At 2:24 P.M., Trump posted this: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution . . . the USA demands the truth!” Romney and Collins asked whether, when Trump sent that “disparaging tweet,” he was “aware that the Vice-President had been removed from the Senate by the Secret Service for his safety.” Joaquin Castro, one of the House managers, replied that the assault itself was being reported live. People, he said, “couldn’t consume any media or probably take any phone calls or anything else without hearing about this, and also hearing about the Vice-President.” Castro also noted that Senator Tommy Tuberville, Republican of Alabama, had confirmed that he had been on a phone call with Trump, which ended when he told him, “Mr. President, they just took the Vice-President out. I’ve got to go.”

Video From The New Yorker

A Reporter’s Video from Inside the Capitol Siege
In a Taped Call, Trump Pressures a Georgia Official to Overturn the State’s Election Results

It would be good to know more about that call to Tuberville—on Saturday, Mike Lee, whose phone Tuberville had used, said his call log indicated that the call had begun at 2:26 P.M., right after the tweet—but the focus soon shifted to another one, between Trump and Kevin McCarthy, the House Minority Leader. On Friday evening, after the trial had adjourned for the day, CNN reported new details of the “expletive-laced” call between Trump and McCarthy, citing several Republicans who had heard the Minority Leader’s account of it. Trump did not seem interested in ending the violence. According to some who spoke with McCarthy, Trump told him, “Well, Kevin, I guess these people are more upset about the election than you are,” suggesting that McCarthy could learn from their devotion. (Three weeks later, McCarthy made a pilgrimage to Mar-a-Lago, to reconcile with Trump.) Representative Jaime Herrera Beutler, of Washington—one of only ten House Republicans who voted to impeach Trump—had spoken publicly in January about McCarthy’s account of the call. On Friday, she put out a statement in which she told any “patriots” who had heard Trump’s side of his conversations that day that “if you have something to add here, now would be the time.” In other words, witnesses are welcome. When the trial convened on Saturday morning, Jamie Raskin, the lead House manager, said that he wanted to subpoena Herrera Beutler, offering to depose her via Zoom. Van der Veen responded with an angry tirade, in which he said that any witnesses—he mentioned Vice-President Kamala Harris—would have to come to his Philadelphia office. (That is a fantasy.) The Senate voted 55–45 to allow witnesses—and then, after closed-door negotiations, the lawyers and House managers agreed to enter Herrera Beutler’s statement into the record instead.

Herrera Beutler had also suggested that Mike Pence might have something to say. For example, he might add something to van der Veen’s reply to Romney and Collins’s question. “The answer is no,” van der Veen said. “At no point was the President informed the Vice-President was in any danger.” This is an absurd answer. Even putting aside the particularities of Pence’s situation—that it was the Secret Service, for example, that led him out of the chamber—Trump certainly knew that his Vice-President was in a dangerous setting. If, before sending the tweet, he had bothered to find out whether Pence was safe, he would certainly have been given an even more troubling report. Pence was not safe: the managers’ presentation made clear that the mob had come even closer to him and his family than had previously been understood. At that moment, Trump not only abandoned Pence—he targeted him. To put it another way, the incitement did not end when the first window was broken.

Van der Veen, however, argued that the Pence question wasn’t even “really relevant to the charges for the impeachment in this case.” The House managers had focussed on how Trump’s actions ahead of January 6th had laid the groundwork for the violence; these included his threats to election officials and his summoning of his supporters for a “wild” rally to coincide with the vote certification. Trump’s lawyers seemed to believe that he had to answer only for his precise words at the rally, for which they offered improbable explanations. (Because Trump, early in his speech, had observed that the crowd planned to “peacefully and patriotically” protest, the lawyers brushed aside his subsequent repeated calls for them to act quite differently.) In their telling, it was as if Trump were just someone who had happened to wander onto the stage, with no context, history, or—perhaps most of all—power. But when the President of the United States tells people that they must go to the building he’s pointing at, the Capitol, and fight, or else “you’re not going to have a country anymore”—and when he says that “when you catch somebody in a fraud, you are allowed to go by very different rules”—he is doing something distinct. Trump’s lawyers, throughout their defense, ignored all the ways that Trump used and abused the office of the Presidency to make January 6th unfold as it did. As Raskin had noted, the impeachment process, with its reference to “high crimes and misdemeanors,” has a political character that makes it distinct from the ordinary criminal justice process.

In the course of the defense presentation—which lasted a little more than three hours, less than a quarter of the time that Trump’s lawyers were allotted—they played so many clips of Representative Maxine Waters, Democrat of California, delivering fiery speeches, that one might have thought that she was on trial. There were also videos of other Democratic politicians, including Alexandria Ocasio-Cortez, Kamala Harris, Joe Biden, Nancy Pelosi, Karen Bass, Al Green, Ayanna Pressley, Ilhan Omar, and Hillary Clinton—and even ones featuring Madonna, Chris Cuomo, and Johnny Depp. One video, played multiple times, consisted of clips of Democratic senators and House managers using the word “fight” in different contexts. (Judging from the placard set up next to him in one clip, Representative Joe Neguse, one of the impeachment managers, was captured saying, during his first term in Congress, that he’d fight for the Colorado Outdoor Recreation and Economy Act, which, among other things, helps preserve areas for mountain biking and protects the habitat of the greater sage grouse.) Speaking of the people shown in the videos, Plaskett noted, “It is not lost on me that so many of them were people of color. And women—Black women.” As Trump surely knows, that message won’t be lost on his supporters, either.

The underlying message in Trump’s defense, however, was that it was outrageous that his actions were being questioned at all. Bruce Castor, another of his lawyers, told the senators that, by any measure, Trump was “the most pro-police, anti-mob-rule President this country has ever seen.” The senators had already heard from the managers how, for months before the assault, Trump had reveled in acts of political violence, such as when COVID-lockdown protesters attacked state buildings in Lansing, Michigan, or when vehicles driven by his supporters dangerously surrounded a bus of Biden campaign workers on a Texas highway. The senators had also seen evidence of the injuries that his supporters had inflicted on officers with the Capitol Police and Metropolitan D.C. Police. But Castor showed them one of the videos. There was Trump, standing in front of an American flag, saying, “I am your President of law and order.” The scenes changed—to people holding Black Lives Matter signs, to street violence, to Maxine Waters, again—but always returned to Trump with the words “LAW AND ORDER” superimposed on the screen. “We know that the President would never have wanted such a riot to occur, because his long-standing hatred for violent protesters and his love for law and order is on display, worn on his sleeve every single day that he served in the White House,” Castor said. He sounded like he was offering a declaration of faith—against all the evidence of reality—not a legal argument. On Saturday morning, Mitch McConnell, the Senate Minority Leader, reportedly told colleagues that he planned to vote to acquit. The Trumpist credo, it seems, is one that the Republican Party intends to live by.

https://www.newyorker.com/news/daily-comment/how-the-question-of-trumps-behavior-during-the-capitol-assault-upended-the-impeachment-trial?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_021321&utm_campaign=aud-dev&utm_medium=email&bxid=5c4900cb3f92a44c6204e517&cndid=49388965&hasha=335bf5f704bb1992aeb4e5c8934cb9a9&hashb=71c6a87bf07011f21867006e6169ea9865429b1e&hashc=8611d077b9d4bfc03504d249e603f505bfeadca448fe02f135ccf05e677e717e&esrc=bounceX&mbid=CRMNYR012019&utm_term=TNY_Daily

Read More About the Attack on the Capitol

Amy Davidson Sorkin

has been a staff writer at The New Yorker since 2014. She has been at the magazine since 1995, and, as a senior editor for many years, focusing on national security, international reporting, and features.

More: Impeachment Donald Trump Senate Capitol Hill

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https://indd.adobe.com/embed/2b4deb22-cf03-4509-9bbd-938c7e8ecc7d
The New Yorker
Reprint

By Amy Davidson Sorkin – February 13, 2021

Former President Donald Trump standing on stage in front of a line of American flags waving in the wind.
The former President’s tweets and reports of his calls to Republican congressmen during the riot became a key part of the case against him. Photograph by Brendan Smialowski / Getty

On Friday afternoon, when senators got their chance to ask questions in Donald Trump’s second impeachment trial, one of the first came from Lisa Murkowski, Republican of Alaska, and Susan Collins, Republican of Maine. Like all of the senators’ questions, this one had been written on a yellow notecard, passed from the gallery to Patrick Leahy, Democrat of Vermont, who was presiding and then read aloud by a clerk. “Exactly when did President Trump learn of the breach of the Capitol, and what specific actions did he take to bring the rioting to an end? And when did he take them?” Murkowski and Collins wanted to know. “Please be as detailed as possible.” The two senators are among the handful of Republicans who are seen as possible votes to convict the former President for inciting an insurrection, and, for that reason alone, their question, which was directed at Trump’s lawyers, was worth taking seriously. But it also got at a central inquiry in the trial: How many people were Trump willing to see get hurt in his effort to hold on to the Presidency?

Michael van der Veen, one of Trump’s lawyers, didn’t really answer. “The House managers have given us absolutely no evidence one way or the other on to that question,” van der Veen, whose professional specialty is personal injury cases, said. This was an odd complaint, given that the question concerned his client’s knowledge and actions. Flipping through some papers, van der Veen offered that there had been “a tweet at 2:38 P.M.” on January 6th—which would have been almost half an hour after a mob seeking to disrupt the Electoral College vote tally had breached the Capitol—and so “it was certainly some time before then” that Trump had learned of the riot. (In the tweet, Trump advised the mob to be peaceful, but failed to tell them to leave the Capitol—perhaps because that was where he wanted them to be.) Van der Veen added, “That’s the problem with this entire proceeding. The House managers did zero investigation! The American people deserve a lot better than coming in here with no evidence. Hearsay on top of hearsay on top of reports that are of hearsay.” Van der Veen muttered something about due process and then, without any further attempt to answer the question, he sat down.

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In one respect, his reply is an example of the dismissive, blame-shifting, reality-defying manner in which Trump’s defense has been conducted. Trump’s lawyers may have also recognized that the question of his response on January 6th has become a particularly hazardous area for him—and, indeed, for a few hours on Saturday morning, it seemed to have changed the timeline for the trial, opening the door for witnesses. The question is powerful for more than one reason. First, his reaction spoke of his intent: if he had truly been misunderstood by his supporters, who certainly seemed to believe that they were fulfilling his wishes, he might have quickly expressed shock and condemnation, told them in no uncertain terms to leave the Capitol, and rushed to send reinforcements. He, of course, did none of these things. Despite van der Veen’s claims, and even though much about how, exactly, Trump spent his time is not known, the House managers did document the former President’s inaction. It wasn’t until after 4 P.M. that he told the rioters to go home, but, in the same message, he said, “We love you,” and took the time to complain, again, about the election. As Stacey Plaskett, a House manager and a delegate representing the Virgin Islands, noted, when she got a chance to respond to the Murkowski-Collins query, the reason that the question of what Trump did to help “keeps coming up is because the answer is ‘nothing.’ ”

As Plaskett took her seat, Collins and Senator Mitt Romney, Republican of Utah, sent a question to the chair about the second aspect of Trump’s response: his attitude regarding the danger to Vice-President Mike Pence. In the days leading up to the January 6th assault, Trump had pounded home the message that he expected Pence, who was set to preside over the joint session of Congress that day, to sabotage and disrupt the electoral-vote certification. Under the Constitution, Pence did not have the power to do that, as he and many others explained to Trump. No matter: Trump drew his supporters into his effort to pressure Pence to act lawlessly. At the rally before the assault, Trump built up the expectation that Pence might still come through. “All Vice-President Pence has to do is send it back to the states to recertify, and we become President, and you are the happiest people,” he said, and added, “Mike Pence is going to have to come through for us.” When people in the mob realized that Pence had not done so, they shouted that he was a traitor and chanted, “Hang Mike Pence!” They began searching for him inside the Capitol; at about 2:13 P.M., Secret Service agents took him out of the Senate chamber, to a room where he took shelter with his family, before being moved again.

As Pence hid, the mob heard from Trump. The 2:38 P.M. tweet was not his first since the breach of the Capitol. At 2:24 P.M., Trump posted this: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution . . . the USA demands the truth!” Romney and Collins asked whether, when Trump sent that “disparaging tweet,” he was “aware that the Vice-President had been removed from the Senate by the Secret Service for his safety.” Joaquin Castro, one of the House managers, replied that the assault itself was being reported live. People, he said, “couldn’t consume any media or probably take any phone calls or anything else without hearing about this, and also hearing about the Vice-President.” Castro also noted that Senator Tommy Tuberville, Republican of Alabama, had confirmed that he had been on a phone call with Trump, which ended when he told him, “Mr. President, they just took the Vice-President out. I’ve got to go.”

Video From The New Yorker

A Reporter’s Video from Inside the Capitol Siege
In a Taped Call, Trump Pressures a Georgia Official to Overturn the State’s Election Results

It would be good to know more about that call to Tuberville—on Saturday, Mike Lee, whose phone Tuberville had used, said his call log indicated that the call had begun at 2:26 P.M., right after the tweet—but the focus soon shifted to another one, between Trump and Kevin McCarthy, the House Minority Leader. On Friday evening, after the trial had adjourned for the day, CNN reported new details of the “expletive-laced” call between Trump and McCarthy, citing several Republicans who had heard the Minority Leader’s account of it. Trump did not seem interested in ending the violence. According to some who spoke with McCarthy, Trump told him, “Well, Kevin, I guess these people are more upset about the election than you are,” suggesting that McCarthy could learn from their devotion. (Three weeks later, McCarthy made a pilgrimage to Mar-a-Lago, to reconcile with Trump.) Representative Jaime Herrera Beutler, of Washington—one of only ten House Republicans who voted to impeach Trump—had spoken publicly in January about McCarthy’s account of the call. On Friday, she put out a statement in which she told any “patriots” who had heard Trump’s side of his conversations that day that “if you have something to add here, now would be the time.” In other words, witnesses are welcome. When the trial convened on Saturday morning, Jamie Raskin, the lead House manager, said that he wanted to subpoena Herrera Beutler, offering to depose her via Zoom. Van der Veen responded with an angry tirade, in which he said that any witnesses—he mentioned Vice-President Kamala Harris—would have to come to his Philadelphia office. (That is a fantasy.) The Senate voted 55–45 to allow witnesses—and then, after closed-door negotiations, the lawyers and House managers agreed to enter Herrera Beutler’s statement into the record instead.

Herrera Beutler had also suggested that Mike Pence might have something to say. For example, he might add something to van der Veen’s reply to Romney and Collins’s question. “The answer is no,” van der Veen said. “At no point was the President informed the Vice-President was in any danger.” This is an absurd answer. Even putting aside the particularities of Pence’s situation—that it was the Secret Service, for example, that led him out of the chamber—Trump certainly knew that his Vice-President was in a dangerous setting. If, before sending the tweet, he had bothered to find out whether Pence was safe, he would certainly have been given an even more troubling report. Pence was not safe: the managers’ presentation made clear that the mob had come even closer to him and his family than had previously been understood. At that moment, Trump not only abandoned Pence—he targeted him. To put it another way, the incitement did not end when the first window was broken.

Van der Veen, however, argued that the Pence question wasn’t even “really relevant to the charges for the impeachment in this case.” The House managers had focussed on how Trump’s actions ahead of January 6th had laid the groundwork for the violence; these included his threats to election officials and his summoning of his supporters for a “wild” rally to coincide with the vote certification. Trump’s lawyers seemed to believe that he had to answer only for his precise words at the rally, for which they offered improbable explanations. (Because Trump, early in his speech, had observed that the crowd planned to “peacefully and patriotically” protest, the lawyers brushed aside his subsequent repeated calls for them to act quite differently.) In their telling, it was as if Trump were just someone who had happened to wander onto the stage, with no context, history, or—perhaps most of all—power. But when the President of the United States tells people that they must go to the building he’s pointing at, the Capitol, and fight, or else “you’re not going to have a country anymore”—and when he says that “when you catch somebody in a fraud, you are allowed to go by very different rules”—he is doing something distinct. Trump’s lawyers, throughout their defense, ignored all the ways that Trump used and abused the office of the Presidency to make January 6th unfold as it did. As Raskin had noted, the impeachment process, with its reference to “high crimes and misdemeanors,” has a political character that makes it distinct from the ordinary criminal justice process.

In the course of the defense presentation—which lasted a little more than three hours, less than a quarter of the time that Trump’s lawyers were allotted—they played so many clips of Representative Maxine Waters, Democrat of California, delivering fiery speeches, that one might have thought that she was on trial. There were also videos of other Democratic politicians, including Alexandria Ocasio-Cortez, Kamala Harris, Joe Biden, Nancy Pelosi, Karen Bass, Al Green, Ayanna Pressley, Ilhan Omar, and Hillary Clinton—and even ones featuring Madonna, Chris Cuomo, and Johnny Depp. One video, played multiple times, consisted of clips of Democratic senators and House managers using the word “fight” in different contexts. (Judging from the placard set up next to him in one clip, Representative Joe Neguse, one of the impeachment managers, was captured saying, during his first term in Congress, that he’d fight for the Colorado Outdoor Recreation and Economy Act, which, among other things, helps preserve areas for mountain biking and protects the habitat of the greater sage grouse.) Speaking of the people shown in the videos, Plaskett noted, “It is not lost on me that so many of them were people of color. And women—Black women.” As Trump surely knows, that message won’t be lost on his supporters, either.

The underlying message in Trump’s defense, however, was that it was outrageous that his actions were being questioned at all. Bruce Castor, another of his lawyers, told the senators that, by any measure, Trump was “the most pro-police, anti-mob-rule President this country has ever seen.” The senators had already heard from the managers how, for months before the assault, Trump had reveled in acts of political violence, such as when COVID-lockdown protesters attacked state buildings in Lansing, Michigan, or when vehicles driven by his supporters dangerously surrounded a bus of Biden campaign workers on a Texas highway. The senators had also seen evidence of the injuries that his supporters had inflicted on officers with the Capitol Police and Metropolitan D.C. Police. But Castor showed them one of the videos. There was Trump, standing in front of an American flag, saying, “I am your President of law and order.” The scenes changed—to people holding Black Lives Matter signs, to street violence, to Maxine Waters, again—but always returned to Trump with the words “LAW AND ORDER” superimposed on the screen. “We know that the President would never have wanted such a riot to occur, because his long-standing hatred for violent protesters and his love for law and order is on display, worn on his sleeve every single day that he served in the White House,” Castor said. He sounded like he was offering a declaration of faith—against all the evidence of reality—not a legal argument. On Saturday morning, Mitch McConnell, the Senate Minority Leader, reportedly told colleagues that he planned to vote to acquit. The Trumpist credo, it seems, is one that the Republican Party intends to live by.

https://www.newyorker.com/news/daily-comment/how-the-question-of-trumps-behavior-during-the-capitol-assault-upended-the-impeachment-trial?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_021321&utm_campaign=aud-dev&utm_medium=email&bxid=5c4900cb3f92a44c6204e517&cndid=49388965&hasha=335bf5f704bb1992aeb4e5c8934cb9a9&hashb=71c6a87bf07011f21867006e6169ea9865429b1e&hashc=8611d077b9d4bfc03504d249e603f505bfeadca448fe02f135ccf05e677e717e&esrc=bounceX&mbid=CRMNYR012019&utm_term=TNY_Daily

Read More About the Attack on the Capitol

Amy Davidson Sorkin

has been a staff writer at The New Yorker since 2014. She has been at the magazine since 1995, and, as a senior editor for many years, focusing on national security, international reporting, and features.

More: Impeachment Donald Trump Senate Capitol Hill