Senator Mitch McConnell of Kentucky, the Republican leader, informed colleagues Saturday morning that it was a “close call,” but he would vote to acquit former President Donald J. Trump on the charge of “incitement of insurrection” for his role in the Jan. 6 Capitol riot, according to three people familiar with the matter.
His decision, revealed in an email to colleagues hours before a vote on the verdict, put to rest weeks of uncertainty and public silence about how Mr. McConnell would judge the former president, and confirmed that it was all but certain that the Senate would acquit Mr. Trump. Mr. McConnell said the Senate had no power under the Constitution to remove an ex-president, a position that many constitutional scholars have rejected, according to the people, who shared the contents of Mr. McConnell’s message on condition of anonymity to disclose a private communication.
“While a close call, I am persuaded that impeachments are a tool primarily of removal and we therefore lack jurisdiction,” the leader wrote. “The Constitution makes perfectly clear that presidential criminal misconduct while in office can be prosecuted after the president has left office, which in my view alleviates the otherwise troubling ‘January exception’ argument raised by the House.”
The leader had let it be known that he believed Mr. Trump committed impeachable offenses and told advisers and colleagues he was open to conviction as the best way of purging Mr. Trump from the Republican Party. He even said publicly that Mr. Trump had “provoked the attack.”
But on Saturday, he cited the same constitutional concerns about trying a former president that other Republicans have to justify their votes. His decision could help tamp down possible defections by others in the party contemplating a “guilty” vote.
Seventeen Republican senators would need to join the Democrats to reach the two-thirds majority needed to convict Mr. Trump of the single charge he faces. If they did, they could vote to disqualify him from holding office in the future.
The Senate was rapidly moving toward a vote, even as a last-minute call for witnesses emerged after a Republican congresswoman claimed that the former president praised the rioters while they attacked the Capitol on Jan. 6.
The Senate is set to hear closing arguments when it convenes at 10 a.m. With many Republicans already on record supporting the view that the impeachment trial is unconstitutional, the Senate is barreling toward the conclusion of what is on track to be the fastest presidential impeachment trial ever. An acquittal would mirror the conclusion of Mr. Trump’s first impeachment trial just over a year ago.
Either side could call for a vote on witnesses before the closing arguments, a move that some Democrats were calling for after Representative Jaime Herrera Beutler, Republican of Washington, recounted a phone call described to her by Representative Kevin McCarthy of California, the minority leader, in which Mr. Trump was said to have sided with the rioters.
Her claim called into question the assertions from Mr. Trump’s legal team that he never praised the rioters or refrained from calling off the assault. The House prosecutors alleged in their case that the president had done nothing because he was “delighted” with what he saw unfolding.
Democrats on Saturday were weighing making a last-minute push for witnesses in the impeachment trial began to coalesce, after a Republican congresswoman confirmed that Representative Kevin McCarthy, the minority leader, told her that the former president had sided with the mob during a phone call as rioters were attacking the Capitol.
While there was little indication that the House impeachment managers would call for witnesses, at least two Democratic senators endorsed the prospect after Representative Jaime Herrera Beutler of Washington, one of the 10 Republicans who voted to impeach Mr. Trump, released a statement Friday night recounting Mr. McCarthy’s account of his conversation with Mr. Trump.
In her statement, Ms. Herrera Beutler said Mr. McCarthy told her that Mr. Trump had said the rioters storming the Capitol were “more upset about the election than you are,” and she pleaded with those who were at the White House with him that day, or former Vice President Mike Pence, to come forward and share eyewitness accounts and details about what they saw.
“To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: If you have something to add here, now would be the time,” Ms. Herrera Beutler said in a statement.
Afterward, Democratic Senators Sheldon Whitehouse of Rhode Island and Jeff Merkley of Oregon both called for witnesses. But with many Republicans already on record vowing to vote for Mr. Trump’s acquittal, some Democrats were wary about the trial dragging on without any change in outcome as the pandemic continues to rage across the country.
It is a striking contrast from just over a year ago, when Democrats condemned Republicans for blocking a push for more witnesses and documents, saying it would delegitimize Mr. Trump’s acquittal. Only two Republicans, Susan Collins of Maine and Mitt Romney of Utah, voted to summon additional evidence.
On Twitter, Mr. Whitehouse proposed suspending the trial and then deposing Mr. McCarthy and at least one other Republican as well as requesting Secret Service communications during the siege.
“We’ll see what Team Raskin decides to do,” Mr. Whitehouse told reporters as he entered the Capitol on Saturday morning, referring to Representative Jamie Raskin, Democrat of Maryland and the lead House manager.
“It’s not just a question of whether the managers want to pursue these questions,” he added. “It’s also a question of what the Trump counsel want to do to make sure that their presentation ends up having been completely candid.”
One way to clear it up? Suspend trial to depose McCarthy and Tuberville under oath and get facts. Ask Secret Service to produce for review comms back to White House re VP Pence safety during siege. What did Trump know, and when did he know it?
— Sheldon Whitehouse (@SenWhitehouse) February 13, 2021
This year, Senator Chuck Schumer of New York, now the majority leader, has declined to say whether he would support calling witnesses.
“It’s up to the managers,” he told reporters late Friday. “We defer to them.”
Former President Donald J. Trump’s lawyers opened and closed their impeachment defense in a span of three hours on Friday, drawing praise from Republicans. Senators then submitted questions to each side. They are expected to vote on whether to convict or acquit Mr. Trump on Saturday.
Here are takeaways from the fourth day of the trial.
The Trump defense often echoed Trump himself.
Lawmakers praised Mr. Trump’s lawyers’ performance as a huge improvement over the rambling and disorganized argument presented on Tuesday by one of the lawyers, Bruce L. Castor Jr., a performance that was widely panned and infuriated Mr. Trump.
The defense lawyers said the House managers manipulated their client’s words from his Jan. 6 speech, leaning heavily on Mr. Trump’s single use of the word “peacefully” as he urged backers to march to the Capitol while minimizing the 20 times he used the word “fight.”
Mr. Castor said, “The House managers took from that: ‘Go down to the Capitol and riot.’”
But that is not what Mr. Trump was asking his supporters to do, Mr. Castor said: “He wanted them to support primary challenges.”
The former president stood for law and order, Michael T. van der Veen, one of Mr. Trump’s lawyers, said, picking up a phrase the president has used repeatedly.
“Mr. Trump did the opposite of advocating for lawless action, the opposite,” Mr. van der Veen said. “He expressly advocated for peaceful action at the Save America rally.”
Trump’s lawyers went on the offensive with videos of their own.
The former president’s lawyers began their defense by attacking the House impeachment managers’ case, taking aim at many of the compelling video presentations the Democrats made throughout the week.
The lawyers produced split screens for senators, juxtaposing footage that House managers showed during the first three days of the trial with what the defense argued really happened. Many were labeled “MANAGERS” and “REALITY.”
“Like every other politically motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence and the interests of the American people,” Mr. van der Veen said.
The intent behind the word ‘fight’ came up a lot.
Mr. Trump’s defense team presented a rapid-fire video montage of Democrats saying the word “fight” in their political speeches, challenging a key House argument that Mr. Trump incited the attack on Jan. 6 by telling his supporters to “fight” in a speech just before urging them to march to the Capitol.
Earlier in the week, House managers played video of that speech, including Mr. Trump saying: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
Mr. Trump’s lawyers maintain that this figurative language is common among politicians, as evidenced by the video montage, which they asserted included all the House managers as well as the Democratic senators using phrases such as: “You don’t get what you don’t fight for.” “Get in this fight.” “We will fight when we must fight.” “We are in this fight for our lives.”
The newest members of Donald J. Trump’s legal team took center stage in his impeachment trial on Friday and delivered exactly what he always seems to want from his lawyers: not precise, learned legal arguments but public combat, in this case including twisted facts, rewritten history and attacks on opponents.
After initially stumbling in its first round of arguments on Tuesday, the latest team — either the seventh or eighth to defend Mr. Trump since he became president, depending on your math — followed the playbook Mr. Trump has long wanted his lawyers to adhere to.
They channeled his grievances and aggressively spun, making what-about arguments that tried to cast his own behavior as not so bad when compared with the other side. Democrats found their performance infuriatingly misleading, but it potentially provided a vast majority of Republicans in the Senate opposed to convicting Mr. Trump with talking points they can use to justify their votes.
“Hypocrisy,” one of Mr. Trump’s lawyers, Michael T. van der Veen, said after they played a several-minutes-long clip of prominent Democrats and media commentators using language like “fight” in an effort to show that Mr. Trump’s own words before the Jan. 6 riot could have had no role in inciting the violence.
“The reality is, Mr. Trump was not in any way, shape or form instructing these people to fight or to use physical violence,” Mr. van der Veen said. “What he was instructing them to do was to challenge their opponents in primary elections to push for sweeping election reforms, to hold big tech responsible.”
By the end of the day Friday, Mr. van der Veen, a personal injury lawyer from Philadelphia, had emerged as Mr. Trump’s primary defender, handling questions from senators, making a series of false and outlandish claims, calling the impeachment a version of “constitutional cancel culture” and declaring that Friday’s proceedings had been his “most miserable” experience in Washington.
Representative Jamie Raskin, Democrat of Maryland and the lead House impeachment manager, responded, “I guess we’re sorry, but man, you should have been here on Jan. 6.”
Fani T. Willis, the top prosecutor in Fulton County, Ga., is targeting former President Donald J. Trump and a range of his allies in her newly announced investigation into election interference.
Ms. Willis and her office have indicated that the investigation, which she revealed this week, will include Senator Lindsey Graham’s November phone call to Brad Raffensperger, Georgia’s secretary of state, about mail-in ballots; the abrupt removal last month of Byung J. Pak, the U.S. attorney for the Northern District of Georgia, who earned Mr. Trump’s enmity for not advancing his debunked assertions about election fraud; and the false claims that Rudolph W. Giuliani, the president’s personal lawyer, made before state legislative committees.
“An investigation is like an onion,” Ms. Willis told The New York Times in an interview. “You never know. You pull something back, and then you find something else.”
She added, “Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.”
Kevin Bishop, a spokesman for Mr. Graham, said that he had not had any contact with Ms. Willis’s office. Mr. Giuliani did not respond to a request for comment.
Jason Miller, a spokesman for Mr. Trump, has called the Georgia investigation “the Democrats’ latest attempt to score political points.”
The activity of Mr. Trump is central to the Georgia inquiry, particularly his call last month to Mr. Raffensperger, during which Mr. Trump asked him to “find” votes to erase the former president’s loss in the state.
Ms. Willis, whose jurisdiction encompasses much of Atlanta, laid out an array of possible criminal charges in recent letters to state officials and agencies asking them to preserve documents, providing a partial map of the potential exposure of Mr. Trump and his allies.
Mr. Trump’s calls to state officials urging them to subvert the election, for instance, could run afoul of a Georgia statute dealing with criminal solicitation to commit election fraud, one of the charges outlined in the letters. If that charge is prosecuted as a felony, it is punishable by at least a year in prison.
Ms. Willis, 49, is a veteran prosecutor who has carved out a centrist record. She said in the interview that her decision to proceed with the investigation “is really not a choice — to me, it’s an obligation.”
“Each D.A. in the country has a certain jurisdiction that they’re responsible for,” she added. “If an alleged crime happens within their jurisdiction, I think they have a duty to investigate it.”
Senator Lindsey Graham, Republican of South Carolina, said on Friday that he planned to meet with former President Donald J. Trump in the coming weeks to “talk about the future of the Republican Party” as it remains fractured in the aftermath of the Jan. 6 attack on the Capitol.
With Mr. Trump, his allies and loyal voters targeting Republican lawmakers who criticized the former president’s role in the attack, including some who voted to impeach him, Mr. Graham’s plans are the latest indication that top Republicans have not left the former president’s corner and are seeking his support as they try to regain power in Washington.
“I do believe the test for the Republican Party is: Can we pick up the House, and/or Senate in 2022?” Mr. Graham said. “For that to happen, Trump’s got to work with everybody.”
Late last month, Representative Kevin McCarthy of California, the minority leader, met with Mr. Trump at his Florida estate for what aides described as a “good and cordial” meeting, and the majority of Senate Republicans are expected to acquit Mr. Trump as early as Saturday in the impeachment trial.
Like Mr. McCarthy, Mr. Graham had initially rebuked the president for his comments on Jan. 6 and his slow reaction to the mob storming the Capitol. But his comments on Friday, outlining his planned message to the president, indicated that he was fully intent on continuing to mend fences between congressional Republicans and the president.
He declared that the race for Republicans to try to win back both the House and the Senate “begins the Trump comeback in terms of he was a consequential president with good policies.”
“I’m going to try and convince him that we can’t get there without you, but you can’t keep the Trump movement going without the G.O.P. united,” Mr. Graham said as he left the Capitol Friday night. “If we come back in 2022, then it’s an affirmation of your policies. But if we lose again in 2022, then it’s going to be — the narrative is going to continue that not only you lost The White House, but the Republican Party is in a bad spot.”
But he added, “If it’s about revenge and going after people you don’t like, we’re going to have a problem.”
FACT CHECK
Donald J. Trump’s lawyers, mounting their defense of the former president on Friday, made a number of inaccurate or misleading claims about the Jan. 6 siege of the Capitol, Mr. Trump’s remarks and the impeachment process itself. Here are some of them.
On the former president’s own words in his speech at the Jan. 6 rally.
Michael van der Veen, one of the lawyers, misleadingly said that Mr. Trump did not express “a desire that the joint session be prevented from conducting its business” but rather “the entire premise of his remarks was that the democratic process would and should play out according to the letter of the law.” But Mr. Trump repeatedly urged former Vice President Mike Pence to “send it back to the States to recertify” and noted that he was “challenging the certification of the election.”
“Far from promoting insurrection of the United States, the president’s remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically,” Mr. van der Veen said. Mr. Trump used the phrase “peacefully and patriotically” once in his speech, compared to 20 uses of the word “fight.”
On the role of left-wing antifa activists.
Mr. van der Veen also claimed that one of the first people arrested in connection with the riots at the Capitol “was the leader of antifa.” That was a hyperbolic reference to John E. Sullivan, a Utah man who was charged on Jan. 15 for violent entry and disorderly conduct. Mr. Sullivan, an activist, has said he was there to film the siege. He has referred to antifa — a loose collective of antifascist activists that has no leader — on social media, but he has repeatedly denied being a member of the movement, though he shares its beliefs.
The Federal Bureau of Investigation has said there is no evidence that supporters of the antifa movement had participated in the Jan. 6 siege.
On a previous protest outside the White House.
Mr. van der Veen equated the Jan. 6 siege to the protests at Lafayette Square in front of the White House last summer, and presented a false timeline, claiming that “violent rioters” repeatedly attacked Secret Service officers and “at one point, pierced a security wall, culminating in the clearing of Lafayette Square.”
There was no breach. Law enforcement officials began clearing Lafayette Square after 6 p.m. on June 1, to allow Mr. Trump to pose, while holding a Bible, in front of a church near the square. Additional security fencing was installed after those events, according to local news reports and the National Park Service.
On Russian interference in the 2016 election.
Similarly, Mr. van der Veen compared Mr. Trump’s complaints and political language about the 2020 election with concerns about the integrity of the 2016 election, arguing that “the entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked.” But American intelligence agencies concluded years ago that Russia tried to interfere in the 2016 election. The Republican-led Senate agreed last year that Russia disrupted that election to help Mr. Trump.
On the timing of when the article of impeachment was delivered.
David Schoen, another lawyer, misleadingly claimed that the House held on to the article of impeachment until “Democrats had secured control over the Senate” and “Representative Clyburn made clear they had considered holding the articles for over 100 days to provide President Biden with a clear pathway to implement his agenda.”
In fact, Democrats had considered delivering the article to the Senate earlier, almost immediately after it was approved, but Senator Mitch McConnell, then the majority leader, precluded the possibility of an immediate trial in a letter informing Republican lawmakers that the Senate was in recess and “may conduct no business until January 19.” Mr. Clyburn made his suggestion of withholding the article even longer, after Mr. McConnell had sent his letter.
On a graphic the House managers were preparing for their case.
Mr. Schoen also accused Democrats of presenting a “manufactured graphic,” referring to a New York Times photo of Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, looking at a computer screen. The screen featured an image of a tweet Mr. Trump shared stamped with an erroneous date. Left unsaid was that the image was recreated because Mr. Trump has been banned from Twitter and House managers could not simply show the retweet itself. Mr. Schoen then acknowledged that House managers fixed the incorrect date before presenting the graphic during the trial.
On whether Mr. Trump had due process.
Mr. Schoen complained once again that the impeachment did not afford Mr. Trump “due process” — a point Mr. Trump’s lawyers and supporters had previously argued during his first impeachment, and a point law scholars had dismissed.
There are no “enforceable rights” to due process in a House inquiry, and while those rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a law professor at the University of Missouri and an expert on impeachment. Former President Andrew Johnson, for example, was impeached by the House before it even drew up the articles.
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