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DJ Jamie Raskin Leads Democrats in Trump's Second Impeachment Trial

· 02/07/2021 11:00
By Siobhan Hughes

WASHINGTON -- Rep. Jamie Raskin faces an immediate challenge as the top prosecutor in the second impeachment trial of former President Donald Trump: Many of the senators acting as jurors don't think there should be one.

The Maryland Democrat was picked by House Speaker Nancy Pelosi (D., Calif.) to serve as the lead impeachment manager in the Senate trial that starts Tuesday. The 58-year-old former constitutional-law professor will lead eight other Democrats in seeking to persuade the Senate to convict Mr. Trump of inciting an insurrection at the Capitol on Jan. 6.

In a legal brief last week, Mr. Raskin alleged that Mr. Trump "created a powder keg" in which hundreds of people "were prepared for violence at his direction." Mr. Trump's lawyers have argued that Mr. Trump didn't engage in insurrection, saying that he had "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect" and that he hadn't incited violence.

On Thursday, Mr. Raskin asked Mr. Trump to testify -- a request that Mr. Trump's lawyers shot down, calling it a "public relations stunt." Mr. Trump's brief is due on Monday.

Many Republicans have condemned Mr. Trump's actions in telling a crowd amassed on the Ellipse to march to the Capitol and to "fight" to overturn Joe Biden's November election victory, which was being certified in Congress that day. Some GOP senators have said they were open to convicting him.

But Mr. Raskin faces long odds, as Democrats did in Mr. Trump's 2020 impeachment trial on charges he pressured Ukraine to investigate Mr. Biden and his son Hunter. One Republican, Sen. Mitt Romney of Utah, voted to convict Mr. Trump, who was acquitted.

Sixty-seven votes are required to convict; the Senate party split is 50-50. If Mr. Trump is convicted, Democrats say they then would hold a second vote to bar him from holding office in the future. The threshold for that vote would be a simple majority. Both Republican and Democratic leaders say that Vice President Kamala Harris could break a tie; while she doesn't want to get involved, she is prepared to break a tie if needed.

Most Senate Republicans have indicated they believe it is unconstitutional to try a former president in impeachment proceedings. In a vote last month, all but five Republicans sided with Sen. Rand Paul (R., Ky.) when he attempted to raise a point of order calling the trial unconstitutional.

"They don't have the votes to convict, so this is just, I think, continuing to embitter the public," Mr. Paul said on Thursday.

The Constitution doesn't address whether former officials can be convicted in an impeachment trial. A January Congressional Research Service report said that while the matter is open to debate, the weight of scholarly authority points to the conclusion that former officials can be impeached and tried.

Actions can be impeachable without being criminal offenses, and lawmakers have wide latitude in determining what rises to a "high crime or misdemeanor." Under the criminal code, a 1969 Supreme Court ruling holds that the government can punish inflammatory speech only if it is both intended to incite and likely to incite "imminent lawless action."

In a criminal case, a prosecutor would have to prove that Mr. Trump "could have reasonably foreseen that his incitement was likely to lead to all hell happening at the Capitol," said William Banks, a law professor at Syracuse University.

Mr. Raskin, who is starting his third term in Congress, took on the lead manager role just weeks after a family tragedy, the New Year's Eve suicide of his 25-year-old son, Tommy.

"The day after Tommy's funeral, he went to work because he knew he had to do this," said Angela J. Davis, an American University law professor who is a longtime friend.

Heading into the trial, Mr. Raskin has a security detail in tow and limits his interactions with reporters. He has been holding daily meetings with the other impeachment managers inside the Capitol, which is now barricaded with fences and concertina wire.

In an interview last month, Mr. Raskin defended the decision to proceed with a trial. "If a president decides to commit the most atrocious act of trying to foment a violent insurrection or stage a coup against the country but does it in the last couple weeks in office, that president cannot be impeached and tried in the Senate? That just makes no sense."

Rep. Jim Jordan (R., Ohio), a Trump ally, called the Democrats' case "incredibly weak." Mr. Jordan says that Mr. Trump was simply exercising his free-speech rights. He also suggested that Mr. Raskin, who in January 2017 objected to Mr. Trump's Electoral College votes from Florida, is being hypocritical.

"He's allowed to object to Florida but some Republicans aren't allowed to object to Pennsylvania?" Mr. Jordan said, referencing one of the states where Republican lawmakers challenged the electoral results on the day of the riots.

All Senate Democrats are expected to vote for Mr. Trump's conviction, and the impeachment managers will need to win over 17 Republicans. In persuading Republicans to join them, Mr. Raskin's challenge is "to draw the connections between the president's unconstitutional conduct and the results that it spawned," said Sen. Chris Van Hollen (D., Md.). "And to remind people that the purpose of the attack was to disrupt the count of the Electoral College and overturn a democratic election."

Mr. Raskin has been focusing on the timeline of events, writing in his brief about videos showing that "immediately after President Trump told the crowd that 'you'll never take back our country with weakness, '...supporters can be heard loudly shouting 'take the Capitol right now!' and 'invade the Capitol building!'"

Mr. Raskin entered national politics after serving in the Maryland state legislature while also teaching at American University's Washington College of Law. A graduate of Harvard College and Harvard University Law School, he has a reputation among his House colleagues as a constitutional specialist. Another impeachment manager, Del. Stacey Plaskett of the U.S. Virgin Islands, was one of his law-school students.

"When I was growing up and playing with my dolls, and my brothers were playing with their G.I. Joes, Jamie probably had a copy of the Constitution," said Rep. Val Demings (D., Fla.).

Harvard law professor Laurence Tribe, who taught Mr. Raskin, says he pointed Mrs. Pelosi toward Mr. Raskin's legal knowledge early on after Mr. Raskin joined the House.

"There are a lot of constitutional issues that come up in the House of Representatives, and she wanted to know, who did I know that she could lean on when these issues came up?" Mr. Tribe said in an interview. He named Mr. Raskin, as well as Rep. Adam Schiff (D., Calif.), the lead manager for Mr. Trump's first trial, as lawmakers on whom it would be good for Mrs. Pelosi to rely.

Tarini Parti contributed to this article.

Write to Siobhan Hughes at siobhan.hughes@wsj.com

(END) Dow Jones Newswires

February 07, 2021 11:00 ET (16:00 GMT)

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