Renato Mariotti writes:

House impeachment managers are starting Donald Trump’s second impeachment trial with the odds stacked against them. The jury has already indicated how it will vote, with 45 Republican Senators suggesting that the charge of inciting insurrection should have been dismissed before trial. To pull out a win, House impeachment managers will need to take some risks and shake things up in this week’s impeachment trial.

Any good trial lawyer knows that when you’re behind, you have to change the dynamic of the trial. 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.

House managers can ask the Senate to subpoena Trump, although it’s unlikely they would be able to enforce that subpoena without significantly delaying the trial. By highlighting Trump’s refusal to testify, the managers can argue that Trump knows his words would incriminate him and remind senators that Trump’s lawyers are not defending his words and actions on the merits.

Trump would be the ultimate game-changing witness, but he’s not the only one who could help overcome the baked-in political pressures and pre-judgments that Republicans will bring to the trial. Yes, calling witnesses might extend the proceedings by days or even weeks, as some Democrats have openly feared, but to not seek that advantage ensures the trial will play out as expected, with Senate Republicans voting in sufficient numbers to acquit Trump. [Continue reading…]