Key Republican senators on the fence over the ruling in Donald Trump's second impeachment trial had some specific factual questions for Trump's attorneys about his actions on the day the US Capitol was stormed.
Trump's lawyers did not come close to answering.
During a period of impeachment when Senators were able to put written questions to the legal team on both sides on Friday afternoon, were Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), Mitt Romney (R-UT) and Bill Cassidy (R-LA) Everyone wanted to know more about why it took exactly this long for Trump to mobilize the federal government to stop the mob and how the president reacted to the developing situation.
Michael van der Veen, a Trump attorney, gave them nothing. All he could quote were the tweets Trump publicly issued at the time. But that wasn't his fault, he said – it's the house's fault for not having conducted an adequate investigation.
"There's nothing on the file on this point. Because the house hasn't even done a minimum of due diligence," said van der Veen, discarding a question on the subject.
"In the rush to initiate this impeachment process, this has not been investigated. And that is the problem with this entire process," he replied to another.
To be clear, van der Veen and his colleagues could have voluntarily provided new exculpatory evidence of how Trump responded to the January 6 uprising or other related issues as part of their defense for the former president. You didn't do it.
But what we know from reporting on Trump's behavior that day is not flattering. Sources have told journalists, for example at the Washington Post, that he was closely watching the chaos on television and resisting requests from some advisors to condemn the violence. Senator Ben Sasse (R-NE) has claimed White House aides told him Trump was "pleased" when the Capitol was stormed. And on Friday night, CNN reported that Trump had turned down Kevin McCarthy's requests to condemn the rioters, saying, "Well, Kevin, I think these people are more upset about the election than you are."
However, Trump's team rightly pointed out that the Democrats have so far made a strategic decision not to pursue affidavits from Trump's aides as part of this investigation. That means there are few statements about what Trump did from people with first-hand knowledge.
It's unclear whether testimony would have a big impact on Republican senators' votes in a verdict (17 would be necessary to convict Trump and far fewer appear to be currently open to it). Also note that McCarthy voted against impeachment, even though he obviously knew what Trump said to him on Jan. 6. The lack of testimony, however, means that Republicans considering conviction have less to do.
Important Republican senators had questions. You have not received any replies.
The first skeptical Republican question from Sens. Collins and Murkowski was, “When exactly did President Trump find out about the Capitol breach? What specific measures has he taken to end the unrest and when did he take them? Please be as detailed as possible. "
Van der Veen's answer was not detailed. "We have a tweet at 2:38 am, so it certainly was sometime before," he said. (At 2:38 pm, Trump sent a tweet with the reading: "Please support our police and law enforcement in the Capitol. You are really on our country's side. Stay peaceful!")
But van der Veen had nothing more to offer and tried to blame the impeachment managers of the house for this failure. "The property managers have not investigated and the American people deserve a lot better than coming here without evidence. Hearsay upon hearsay and hearsay reports," he said.
Romney and Collins later asked another question, trying to find out when Trump learned that Vice President Mike Pence could have been in physical danger.
The background is that Senator Tommy Tuberville (R-AL) has publicly stated that he phoned Trump after the protesters had already entered the Capitol. (Trump tried to get Tuberville to slow down the number of votes.) Per Tuberville's report to Politico, he had to cut the call and said to Trump, "Mr. President, you just took out the vice president, I have to go. "
The Secret Service had evacuated Pence from the Senate Chamber at 2:15 p.m., so this Tuberville-Trump exchange likely happened around that time. Then, at 2:24 p.m., Trump sent this tweet lowering pence:
Donald J. Trump
Mike Pence did not have the courage to do what should have been done to protect our country and our Constitution, and gave states the opportunity to confirm a corrected set of facts, not the fraudulent or inaccurate ones they had before had to certify. USA demands the truth!
Jan. 6, 2021 – 2:24:22 PM EST
So when Trump sent this tweet, Romney and Collins asked if he actually knew that "the secret service vice president had been removed from the Senate for his safety".
Van der Veen claimed that "the answer is no" and that "at no point has the President been informed that the Vice-President is in danger". But he failed to explain how the apparent schedule outlined above was wrong, instead arguing that "the House went through this impeachment in seven days with no evidence."
Even later, Senator Cassidy returned on the subject, re-setting the schedule for Tuberville's call and Trump's tweet, which insulted Pence. "The tweet and lack of response suggest that President Trump didn't care if Vice President Pence was at risk or law enforcement was overwhelmed," he asked. "Does this show that President Trump tolerated the intimidation of Vice President Pence?"
Van der Veen returned to his same topic of conversation. “I deny the premise of your facts. I deny the facts set out in this question. And unfortunately we will not find out the answer to these facts in this trial because the House did nothing to investigate what was going on. "
But he continued, "Mr. Trump and Mr. Pence have had a very good relationship for a long time and I am sure that Mr. Trump is very concerned and concerned about the safety and well being of Mr. Pence and everyone else who have been here. "
Josh Dawsey of the Washington Post soon tweeted that anonymous Pence aides "disagree" with this assessment:
The Pence team disagree with Trump attorney's assessment that Trump was concerned about Pence's safety. Trump didn't call him that day – or for five days after that. No one else on Trump's team called when Pence was being evacuated to one room and another with the crowd screaming nearby.
– Josh Dawsey (@ jdawsey1) February 12, 2021
Tuberville also reiterated his account of his call with Trump to reporters on Friday afternoon.
The witness problem
On record, however, the testimony of Trump's personal conduct and actions during the storming of the Capitol is difficult to pin down – because the people who were with him at the time were hardcore loyalists. According to the Washington Post:
(President Trump) spent the afternoon and evening at the White House listening to only a small group of loyal helpers – including Meadows, Deputy Chief of Staff Dan Scavino, Human Resources Director Johnny McEntee, and Policy Advisor Stephen Miller. Many of his best confidants – Meadows, son-in-law Jared Kushner and First Lady Melania Trump, among others – remained silent in public.
If you want to make a shortlist of people who provide the least harmful information about Donald Trump, Meadows, McEntee, Scavino, and Miller, you might be at the top of that list, perhaps just below Trump's children. The last three are longtime aides who still see their professional fortune as tied to the president. Meadows, who recently entered the administration, was reportedly considering taking a position with the Trump Organization.
These aides would also likely fight legal action against any subpoena that compels their testimony. Former White House attorney Don McGahn has already done so in response to a 2019 subpoena, and has so far successfully avoided giving evidence.
And even if damn new information about Trump's private conduct surfaced on Jan. 6, more than enough Republican senators to acquit Trump have already taken up the argument that it is unconstitutional for the Senate to bring a former president to justice – which they do makes specific facts obviously irrelevant.