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Shape of Senate impeachment trial remains unclear as Trump rejects House Democratic request to testify

WASHINGTON – House Democrats on Thursday asked former president Donald Trump to testify about his role in the Jan. 6 assault on the U.S. Capitol, an invitation his advisers immediately rejected and one that gives no indication as to whether more witnesses will be called to next week’s Senate impeachment trial.

Rep. Jamie Raskin, D-Md., the lead impeachment manager, wrote to Trump that he was inviting the former president to testify because his lawyers had disputed the allegation that he incited the Jan. 6 insurrection, despite “clear and overwhelming evidence.”

In their single article of impeachment, Raskin and the other House managers argue that Trump incited the riot by whipping his supporters into a “frenzy” in his Jan. 6 speech and by peddling a false narrative for months that President Joe Biden’s victory was tainted by massive fraud. They also accuse Trump of refusing to help stop the mayhem and even enjoying it as he watched it unfold on television from the White House.

“If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021,” Raskin wrote.

Trump’s impeachment lawyers, David Schoen and Bruce Castor Jr., fired back in a letter to Raskin that his invitation was a “public relations stunt” and repeated the president’s central defense: that it is unconstitutional to bring an impeachment proceeding against a former president.

“The President will not testify in an unconstitutional proceeding,” Trump spokesman Jason Miller said in a statement.

The House impeached Trump before he left office, and most legal scholars agree that a former president can be tried by the Senate even after leaving office.

Other Republicans also attempted to dismiss the effort to coax Trump to testify. Sen. Lindsey Graham, R-S.C., called it a “political ploy.”

The gambit by House Democrats came amid lingering uncertainty about the shape of the Senate trial, which is set to begin Tuesday, and whether the nine impeachment managers will have the opportunity to call witnesses to bolster their case. That decision will affect the scope and ambition of the trial, which will be Trump’s second.

House leaders have been calling for testimony from a range of eyewitnesses to the insurrection, including police officers who were injured as they fended off rioters while lawmakers barricaded themselves in various rooms inside the Capitol complex.

Their goal: to force Republicans to remember the terror and violence of that day before they vote to acquit, as a majority of them have indicated they will do. Four rioters and one Capitol Police officer died in the riots; two other officers subsequently took their own lives.

But Senate Democrats as well as Republicans have been reluctant to allow witnesses, because it could stretch out the trial for weeks at a time when Democrats want to focus on President Biden’s agenda and Republicans want to turn the page on Trump’s role in the insurrection.

The decision lies with Senate Majority Leader Charles Schumer, D-N.Y., who has not announced whether he intends to allow a Senate vote to compel any witnesses or evidence beyond what the House managers have compiled on their own.

Addressing the trial in the Senate chamber Thursday, Schumer made no mention of witnesses. “We will move forward with a fair and speedy trial,” he said. “The House managers will present their case. The former president’s counsel will mount a defense. And senators will have to look deep into their consciences and determine if Donald Trump is guilty.”

A spokesman for Schumer did not respond to a request for comment.

Last month, Schumer told MSNBC’s Rachel Maddow, “I don’t think there’s a need for a whole lot of witnesses.”

His reticence comes after Trump’s first impeachment trial last year, when Schumer – then minority leader – tried and failed to subpoena witnesses in successive votes that broke along party lines.

As of yet, House Democrats have not made public any other invitations for witnesses to testify, and Trump’s defense team has no plans to call any witnesses, several of his advisers said Thursday. Several Trump White House aides with direct knowledge of the events of Jan. 6 at the Capitol and in the West Wing said they have not been asked to testify.

The House managers have “made clear” that they want to call witnesses, said one person familiar with their thinking, who spoke on the condition of anonymity to describe internal discussions. But they understand that it is a decision for Senate leaders, who are hashing out impeachment rules big and small, down to the size of the television screens that will be allowed on the Senate floor to play video compilations of the mayhem that unfolded Jan. 6, the person said.

Although the idea of live witness testimony was initially discussed enthusiastically by House managers, that focus has dissipated somewhat as the partisan divide in the Senate has become clear and many senators made the case for a shorter trial, according to people familiar with the discussions.

In an interview earlier this week, Rep. Hakeem Jeffries, D-N.Y., chairman of the House Democratic caucus, seemed to acknowledge the uncertainty of how the trial will unfold and how robust of a case the House managers will be permitted to present.

“There’s reason to believe that certainly a handful of Senate Republicans are going to be open to doing the right thing, once the evidence is presented, which could include possible witnesses,” Jeffries said. “Let’s see what takes place.”

White House officials are monitoring the developments, but declined to comment on Trump’s potential testimony or the prospects that allowing many witnesses could prolong a trial they are seeking to move past. While top White House officials are in regular contact with Senate Democrats, they have publicly reiterated that they are leaving all mechanics about impeachment to members of Congress.

Biden has largely avoided commenting on Trump’s impeachment, and has declined to take a position on the terms of the trial. But he has said that he believes the Senate should proceed with one, saying otherwise “it makes a mockery of the system.”

“He was impeached by the House, and it has to move forward,” Biden said in an interview with People that was published this week. “Otherwise it would come off as farcical.”

House managers believe there is less of a need for eyewitness testimony this time because virtually the entire jury of senators – and an international television audience – bore witness to the alleged crime.

That’s one reason House Democrats have spent a great deal of time – and hired an outside law firm – to pull together a video compilation of everything that unfolded Jan. 6, including Trump’s remarks at his “Save America” rally on the Ellipse, the responses from his supporters in the crowd, their march down Pennsylvania Avenue, and their violent and frenzied invasion of the Capitol itself.

“Witness testimony is critically important in an impeachment trial,” said Norman Eisen, who served as a counsel to the House managers in Trump’s first impeachment. But he said the footage taken that day could serve that role.

“There is a vast amount of self-incriminating video capturing Trump’s comments and the insurrectionists’ reactions,” he said. “Everyone can and will see for themselves what happened.”

Democrats have said the presentation will include fresh footage from inside the Capitol as well as cellphone snippets from the rally in which protesters can be seen responding to Trump’s exhortations that they pressure Congress as it prepared that day to certify Biden’s victory.

“You’ll never take back our country with weakness,” Trump said toward the end of his speech. “You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

Some Republicans have seized on the fact that the House declined to hold investigatory hearings before impeaching Trump last month – a departure from his first impeachment last January, when House managers relied heavily on the testimony of current and former government officials to make their case that Trump had illegally sought help from Ukrainian officials to secure reelection. Trump was acquitted in that trial.

Although the Republican-controlled Senate rejected attempts to compel testimony from witnesses during that trial too, the House managers worked around the restriction by playing video of other witnesses who had been willing to appear before House investigators. The House did not issue its own subpoenas for witnesses then or now, which GOP senators have cited in their arguments against compelling testimony this time.

“Just like a year ago, the House didn’t do their work as a grand jury, and they expect the Senate to do their work,” Sen. Charles Grassley, R-Iowa, said Thursday. “I don’t know why we have to pick up the pieces for the inadequacy of the House of Representatives.”

The decision to ask Trump to testify came after his lawyers submitted a response to the House managers’ impeachment brief in which they denied that Trump encouraged his supporters to storm the Capitol or interfere with the count of the electoral college vote in the joint session of Congress that day.

The thinking was that “we need to call him on this,” said the person familiar with the discussions.

The Democrats also plan to make Trump’s persistent and false claims of election fraud a significant part of their case – and they believe there is no more potentially incriminating witness than the president himself, who has continued to claim that he won the election even as he settles into his new life at Mar-a-Lago, his Florida estate, according to several aides.

One Trump aide who spoke on the condition anonymity to describe the former president’s activities said Thursday that Trump is in good spirits, adjusting to his new life and focused on helping Republicans win majorities in the House and Senate in 2022.

Trump is unlikely to make any public appearances next week, the adviser said. His lawyers are expected to argue primarily that the proceeding itself is not constitutional, that he did not technically incite any violence and that his words did not spur those who charged the Capitol.

Graham has told the president and the team that the constitutionality argument is the one most likely to resonate with Republican senators, the adviser said.

“We expect to lose four or five Republicans,” the adviser said.

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The Washington Post’s Matt Viser contributed to this report.