Former federal prosecutor Renato Mariotti argued in a column for Politico that House impeachment managers should fight to ensure former President Donald Trump testifies at the trial, even if it means the impeachment will take longer.
Mariotti explained that the Republican Senate jury has already indicated it will acquit Trump, so House impeachment managers should "take some risks and shake things up."
"Any good trial lawyer knows that when you're behind, you have to change the dynamic of the trial," he explained. "The House managers' recent call for Trump to testify is an example of them doing just that. His unpredictable and often self-incriminating statements would create a bonanza of damaging testimony for the prosecution, which is why his team has already made clear Trump won't appear voluntarily."
The House asked Trump to testify in a polite invitation, but they haven't yet issued a subpoena. Issuing and enforcing a subpoena, however, would delay the trial. But even if it does, Mariotti argued it's worth it. "To not seek that advantage ensures the trial will play out as expected, with Senate Republicans voting in sufficient numbers to acquit Trump," he wrote.
He went on to pinpoint that the former president's legal team isn't declaring that Trump is innocent, rather they're saying the impeachment is unconstitutional and even if it wasn't unconstitutional, the First Amendment protects his right to incite a mob.
It isn't unusual, he explained. "Defense attorneys who are forced to defend the indefensible will often try to distract the jury from their client's misdeeds by focusing on minutiae or sideshows. After all, every minute jurors are focused on arcane legal questions or hair-splitting is a minute they aren't considering the defendant's conduct."
If this were an actual trial, Mariotti explained that Trump's lawyers wouldn't be able to make that case to the jury directly. It would be fought out as part of the process to the judge. It's the jury's job to decide the guilt or innocence and the judge's role to deal with the process.
He went on to say that he expects the impeachment managers to show video after video of the attacks on the Capitol, the responses to Trump's call to "fight," and even the aftermath of MAGA followers in court saying they only did what Trump told them.
"Daniel Goldman, who was lead counsel for Trump's first impeachment, recently told me in an interview that he believes even Democratic senators do not want to call witnesses," he went on. In the first trial, House Democrats didn't call witnesses because there was a fear those like John Bolton wouldn't testify voluntarily. Once the trial reached the Senate, Republicans refused to allow any witnesses to come forward.
"In the end, that missing testimony gave GOP senators an excuse not to convict," wrote Mariotti. It's for that reason he thinks Democrats must call witnesses this time.
"For example, Georgia Secretary of State Brad Raffensperger is a Republican who Trump threatened with a criminal investigation because he was unwilling to break the law and overturn his state's result by helping Trump 'find 11,780 votes,'" he explained.
He noted that testimony from those who experienced the violence first hand would be "even more powerful." While Rep. Alexandria Ocasio-Cortez addressing the trauma of the attacks, what could be more compelling is to hear from one of the 140 injured Capitol Police officers who survived Jan. 6.
"If Republican senators are making intellectual calculations, they might be calculating the impact of their vote on donors and constituents back home," he said. "So House managers need to hit them in their gut, not their head. A couple of carefully chosen witnesses could do that."
Republicans have indicated that they don't plan to convict Trump or prevent him from running again in 2024, but if Democrats try Trump in the court of public opinion, it could make the lives of GOP members difficult. Ahead of the trial, 50 percent of Americans support the conviction of Trump before seeing the evidence or hearing the witnesses. That's already better than the first impeachment, which reached 47.5 percent support, according to FiveThirtyEight.
That's one of many reasons Mariotti thinks Democrats should try Trump in the court of public opinion.
"Republicans have already tried to change the narrative, and Trump has not been held accountable for his attempt to subvert our democracy," he explained. "The House Republican leader recently flew to Florida to pay his respects to Trump, and Trump acolyte Marjorie Taylor Greene survived a Republican caucus vote after attention was drawn to her advocacy of conspiracy theories and her use of threatening language."
Trumpism lives on, but the real story of Trump's attempt to overthrow the election and those who helped him must be told "to ensure that the American people understand exactly what he did. If they do so, House managers will succeed regardless of how the Senate votes," he closed.