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Analysis: If convicting Trump is out of reach, managers seek a verdict from the public and history

As a day of violence and mayhem at the Capitol slid into evening last month, with bloodshed, glass shattered and democracy besieged, President Donald Trump posted a message on Twitter that seemed to celebrate the moment. “Remember this day forever!” he urged.

The House Democrats prosecuting him at his Senate impeachment trial barely a month later hope to make sure everyone does.

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With conviction in a polarized Senate seemingly out of reach, the House managers, as the prosecutors are known, are aiming their arguments at two other audiences beyond the chamber: the American people whose decision to deny Trump a second term was put at risk and the historians who will one day render their own judgments about the former president and his time in power.

Through the expansive use of unsettling video footage showing both Trump’s words and the brutal rampage that followed, the managers are using their moment in the national spotlight to make the searing images of havoc the inexpungible legacy of the Trump presidency. Rather than let the outrage subside, the managers are seeking to ensure that Trump is held accountable even if he is acquitted in the Senate.

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“The Democrats and House managers are playing to a different jury in this case than in any previous impeachment trial of an American president,” said Ken Gormley, president of Duquesne University and author of books on impeachment, presidents and the Constitution. “Regardless of the outcome of the trial, the first paragraph of historical accounts of the Trump presidency is likely” to say that he incited a mob attack on Congress after refusing to accept the results of an election.

If Trump is not convicted, the managers want to ensure that he remains so politically radioactive that he cannot be the same force he once was — if not the pariah they think he ought to be, then at least a figure that many mainstream Republicans and their corporate donors keep at arm’s length. In effect, if the Senate will not vote to formally disqualify him from future office, they want the public to do so.

Sen. Lisa Murkowski of Alaska, one of Trump’s more outspoken Republican critics, touched on that Wednesday after the House managers played a searing sequence of never-before-seen images of the mob he inspired ransacking the Capitol. Given what the country has now seen, she said the prospects for a Trump comeback campaign in 2024 appear vanishingly thin.

“Frankly, I don’t see how after the American public sees the whole story laid out here — not just in one snippet on this day and another on that, but this whole scenario that has been laid out before us — I don’t see how Donald Trump could be reelected to the presidency again,” Murkowski told reporters. “I just don’t see that.”

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Karl Rove, the Republican strategist and former adviser to President George W. Bush, said the managers had made a “very persuasive” presentation. “Not clear they met the legal definition of ‘incitement’ and ‘insurrection,’ but he is effectively tarnished for all time and incapable of running in 2024,” Rove said. “The question is, how much power to dominate the GOP will have been drained away by the time this is over?”

Trump’s camp acknowledges that the prosecution has been effective but portrays it as an illegitimate smear borne of partisan animus. Jason Miller, a longtime adviser and campaign spokesperson for Trump, called the impeachment drive a “vindictive way to try to beat him for future elections” but one that he said would not work given Trump’s enduring support with the Republican base.

“I think the president is going to be involved in making sure we win back the House and Senate in 2022,” Miller told Fox Business. “President Trump will stay active. I think it’s going to take a little bit of rest and relaxation at Mar-a-Lago, but we will see him right back at it shortly.”

The former president’s legal team, which will begin its own arguments after the House managers conclude theirs, dismissed the use of the video in the Senate trial as an inflammatory tactic to blame Trump for the actions of others.

“It is something that President Trump has condemned in no uncertain terms, the terrible violence that went on there, so there’s not an issue about that,” David Schoen, one of his lawyers, said on Fox News. “They’re just hoping to drum up emotion and get their last shots in at President Trump.”

Jonathan Turley, a law professor at George Washington University who testified against impeachment the first time the House lodged charges of high crimes and misdemeanors against Trump in 2019, said the managers this time were just playing to the crowd rather than making a legal argument.

“The House is presenting an emotionally charged but legally deficient case in terms of conviction,” he said. “Indeed, much of the argument seems designed to enrage rather than convict.”

The videotapes, he added, are provocative but not probative. “It is like showing a jury the remnants of a fire. It does not prove that the accused started the fire.”

The decision to impeach Trump a second time and put him on trial even after he left office was always a dicey one for Democrats, some of whom were wary of once again mounting a largely partisan effort that last year resulted in an acquittal that only emboldened the president who declared himself vindicated. Some Democrats, like Sen. Tim Kaine of Virginia, argued that a bipartisan censure resolution with Republican support would be a better outcome this time around.

But after drafting a measure declaring that the former president aided an insurrection in a way that might disqualify him from running for office again under the 14th Amendment, the senator found few takers on either side of the aisle; Republicans balked at breaking with Trump, and his fellow Democrats demanded “impeachment or nothing,” as Kaine put it. So now the Democrats who insisted on impeachment or nothing face the prospect of again failing to convict Trump, making it more imperative for them to use the trial to establish a different kind of verdict that will go beyond the vote itself.

The video images played for senators this week seemed to be having an effect outside the chamber. Twitter reinforced Wednesday that it would never allow its most famous former user back onto its platform after cutting him off from his 89 million followers for inciting violence. And The Wall Street Journal’s influential conservative editorial page said that Trump was permanently scarred.

“Now his legacy will be forever stained by this violence, and by his betrayal of his supporters in refusing to tell them the truth,” the editorial said. “Whatever the result of the impeachment trial, Republicans should remember the betrayal if Mr. Trump decides to run again in 2024.”

The managers were also looking past 2024 to the pages of history. When it comes time to record this era, they want scholars to focus first on the events of recent weeks, branding Trump in the minds of future generations as a dangerous demagogue responsible for a deadly assault on the citadel of democracy.

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“Quite honestly, as a presidential historian, it was clear to me watching these events unfold on Jan. 6 that the insurrection would be the defining moment of his presidency,” said Kathryn Cramer Brownell, a history professor at Purdue University. “It clearly seemed a culmination of the ways in which Trump actively worked to advance misinformation, undermine the democratic process and institutions, and endorse violence during his presidency.”

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That, of course, was not the storyline Trump was promoting as he spent weeks falsely claiming that the election was stolen from him and encouraged supporters to travel to Washington on Jan. 6 to help him find a way to cling to power.

He portrayed himself as an aggrieved victim of a vast conspiracy that involved not just Democrats but Republicans as well, not to mention judges, election officials, the news media, the Cubans and Venezuelans, and voting machine companies.

“History will remember,” Trump declared in a tweet about 10 days before the riot. That it will, and the trial this week will go a long way toward deciding what those memories will be.

c.2021 The New York Times Company

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