Kary Antholis:

My guest today is William Antholis. Bill serves as director and CEO of the Miller Center, a nonpartisan affiliate of the University of Virginia that specializes in presidential scholarship, public policy, and political history. Immediately prior, he served as managing director at The Brookings Institution for 10 years. He also is the author of the book Inside Out India and China: Local Politics Go Global which explores how country-sized provinces and states in the world’s two biggest nations are increasingly becoming global players. In addition to all of that, Bill is my younger brother and, with the House of Representatives scheduled to deliver the article of Impeachment to the Senate on Monday Bill joins me to discuss the upcoming second impeachment trial of Donald J. Trump. This interview was conducted last Sunday, January 17.

Kary Antholis:

We’re joined today by my brother, William Antholis, who also happens to be the head of the Miller Center at the University of Virginia. Bill, thanks for being with me today.

William Antholis:

Always happy to take the excuse to be with you Kary.

Kary Antholis:

For our audience’s benefit, Bill wrote a column for us a little over a year ago during the first impeachment of Donald J. Trump and now we’ve asked him to join us today to discuss the second impeachment of Donald J. Trump. Bill, in your previous piece, you explored the question of whether impeachment is a criminal proceeding or a political proceeding. Could you rehash that for us?

William Antholis:

Sure, there’s debate on this topic because on a number of technical details, people wonder from a evidence standpoint, from a standing standpoint, all kinds of issues that normally get hashed out in a court of law, people wonder, do they apply? And the truth is that impeachment is both a criminal proceeding and a political proceeding. Um, it is a criminal proceeding in that it identifies the Constitution as the highest law in the land. The Constitution identifies both the grounds and the jurisdiction that federal officers, including especially the President of the United States can be impeached for this very vague concept of high crimes and misdemeanors.

William Antholis:

And then it lays out, um, the process for doing that, which is that the house impeaches which is the same as an indictment in this context, and that the Senate convicts. Um, it is a political proceeding and it also lays out the, um, the Chief Justice of the Supreme Court will preside over the trial. The House and the Senate then establish their own rules for proceeding. And that’s where you start going from criminal to political because the members of the House and the members of the Senate are political beings and they were intended to be political beings.

Kary Antholis:

And perhaps the most pressing and immediate question, given the fact that three days from our recording of this interview, Joe Biden will be sworn in as the 46th President of the United States. Can you try and convict a past president and why convict a past president?

William Antholis:

Well, going back to the criminal versus political, there’s a little bit of both here, right? The Constitution lays out that particularly for the president, the House can impeach and the Senate can convict for high crimes and misdemeanors. So if the President of the United States, whether current or past, has committed a high crime, he can and should be punished for it. Now, that’s certainly the case if he’s president and it’s particularly important if he’s still the president that the House and the Senate do that if in fact he had committed a high crime because in current practice, the president can’t be tried in another court of law, that’s been a Justice Department assessment that though the Constitution says that presidents can be tried in regular courts of law.

William Antholis:

It only says that the House and Senate can impeach and try a president and remove him from office. That’s all the House and the Senate can do. They can remove and they can prevent the president from ever holding another office and that’s what the Congress’s power is limited to. Regular courts in the Constitution can try and convict the president, including federal courts for other actions. But in the intervening 200 years, our Justice Department, prior to the Trump administration, ruled that one should not prosecute presidents for regular violations of the law because it disrupts his or her activity as President of the United States. Therefore, impeachment was the right avenue once removed from office and no longer burdened of the duties of office, the president could be tried.

William Antholis:

So one of the reasons you would want to convict a president is to remove him from office so he could be tried. Now if the president to your question, if the president is already going to be a past president, which will be the case after Wednesday, you would certainly want to if he had committed a high crime and- or, uh, misdemeanor, treason, high crime or misdemeanor, remove him from office, if he’s already gone from office, you might want to simply establish his guilt. Now, you could say, “Well, that guilt could be established in a regular court.” But here, this goes to the political act.

William Antholis:

Congress is the first branch of government. Its roles and responsibilities are limited or are listed in the Constitution as Article I responsibilities. They create laws, they are the origin of our whole legal system and all policies originally derived from the Congress. And the President is Article II, he merely executes the will of the people as determined by the Congress. So the other reason to have Congress punish the president is to put a stamp, their stamp, that he had acted illegally. But then there’s this other reason to try and convict a president which is there is this one other sanction which is not just removing him from office, but barring him from ever serving again.

Kary Antholis:

Is there clarity on whether in fact Congress can try a past president for impeachment?

William Antholis:

There is some uncertainty on this. The argument, in favor of doing so and including the argument that there is actually some certainty on this is there are precedents in impeaching and convicting past officeholders, federal judges. This has happened at least twice in the past, perhaps a third time in the past. The plain language of the Constitution suggests that it’s possible. And the language says, “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

William Antholis:

So that comma is pretty loaded because again, it gives the Congress power of impeachment only to removal from office, and disqualification to hold and enjoy any office. Again, so it’s unclear whether that comma means that only in the event of removal are you then prevented from serving again or does it mean that the power is listed for two things and you could do one or the other?

Kary Antholis:

I imagine the usage of and/or is a relatively contemporary idiom, and I wonder what the equivalent during colonial times of and/or was, was it a comma?

William Antholis:

Well, here’s the very fascinating thing about this. Contemporary to all of this, it was after the Constitution, but very much happened in the lives of the people that wrote the Constitution is the case of Napoleon, okay? Right, who is, was essentially elected, became a dictator, gets kicked out and then comes back. So I’m sure during the lifetime of the founders, they actually experienced this very thing happening.

William Antholis:

And, more importantly, remember where the founders were. They were in British America which then became a freestanding Republic, but they had lived through, um, or they had experienced and were educated in British history where these kinds of removals and fights around office holding by the king during the Glorious Revolution by Cromwell were very much part of their education and their lived experience. And the idea of preventing a dictator from ever holding office again was certainly something very much on the minds of people at the time as a real thing. So I think the current moment would not have been foreign to the founders.

Kary Antholis:

So who makes the decision about whether the Senate can try the president? Is it subject to Supreme Court review or is it something that the senators themselves decide?

William Antholis:

So this is also a great question in theory. In practice, the Supreme Court has shown enormous deference to the Senate in the conducting of a trial. The Constitution says that the Senate must take up impeachment when given to it by the house. Senate rules say that the Senate must take it up within two days of receiving the Articles of Impeachment. As a result, Nancy Pelosi is going to hold back the Articles of Impeachment and it looks like for several days after President Elect Biden is sworn in.

William Antholis:

The reason for that is that Mitch McConnell has said quite clearly that the Senate will only go into session one day before President Elect Biden is sworn in, that’s the 19th. And they will not have time to conduct a trial in that day which means it’s going to have to happen on the watch of Chuck Schumer, who will then become the new Senate Majority Leader. There’s actually a funny interregnum here which is that Chuck Schumer will only become the majority leader when there were 50 democratic senators. The Georgia certification has not happened yet, making two more democratic senators, bringing the number to 50. And in addition to that, Kamala Harris is going to resign her senate seat, California is going to appoint a new democratic senator.

William Antholis:

Um, but it’s only after all of that happens that there will be 50 senators, she will be sworn in as Vice President allowing her to break the tie. And when that tie is broken, it will make Chuck Schumer, the Senate Majority Leader. So for all of those things to take place, will take several days. 

Kary Antholis:

I think the Georgia certification is on the 22nd of January. And so I saw that Kamala Harris is resigning effective on Monday. So I think the 48th democratic senator will be in place on Inauguration Day, but 49 and 50 won’t be sworn in until probably January 23rd.

William Antholis:

Exactly. So it’ll be January 23rd or 24th when all of those things come into play and the Senate will be in session in a mode where Chuck Schumer will be the Senate Majority Leader, You’ll have a 50-50 Senate, Kamala Harris breaks the tie making Schumer the majority leader.

Kary Antholis:

Can I ask you, have they discussed whether Nancy Pelosi’s decision to hold back the articles and not deliver them to the Senate may impact the Supreme Court’s ability to intercede in this and say, “If they had been delivered to the Senate before the inauguration, then it’s the Senate’s responsibility. But since they weren’t delivered to the Senate, we have jurisdiction over it.”

William Antholis:

I have a hard time imagining the Supreme Court getting into this because the court’s view of impeachment is this is a power given to Congress. Each Congress is conceived of as serving for a two-year term after election. And though this Congress was seated and sworn in at the end of the Trump presidency and extends into the Biden presidency, it is viewed as one Congress.

William Antholis:

So the act of the House of Representatives to impeach the president in this Congress like any act of Congress to create a law must be acted on by this seated Senate even if that takes place during the Biden presidency. And my expectation from having talked to legal scholars about this is that they are and again, I’m a PhD in politics, not in the law, but I studied constitutional law as part of my dissertation, including the founding period. My understanding of all of this is that the Supreme Court will yield to the Congress, that the newly seated Senate will try this president, the current president who is soon to be ex-president, within two days after the house delivers the Articles of Impeachment, and that that will only happen after Chuck Schumer has become the majority leader.

Kary Antholis:

Do you have any sense of how senators from both parties feel about the precedent of trying a past president for impeachment? And secondly, do you have a sense of whether there is the potential for two-thirds majority to convict Donald Trump on his impeachment?

William Antholis:

Yeah, so it’s a great question and an important question. First to the two-thirds, it’s an interesting point of law, right? Because, again, it’s both a criminal proceeding and a political proceeding. As I think most people who follow your website Kary know that in most courts of law, a jury must be unanimous particularly for really important crimes in criminal law. That’s not always the case and each state does this differently. And quite interestingly, just in the last couple years, the state of Louisiana changed its laws to require unanimous jury convictions, particularly for murder.

William Antholis:

They had been a majority or two-thirds majority. And the reason that they went to unanimous was because that often triggers a death penalty. And, um, you were, you were seeing people being convicted, and sent to the chair that hadn’t been convicted in a unanimous proceeding andthe New Orleans Advocate won a Pulitzer Prize for exposing this and why essentially, that was, an inhuman way to conduct a trial. So the Constitution, however, is pretty clear that it’s only a two-thirds majority. And I think one of the reasons for that is the definition of a high crime or misdemeanor was intentionally left kind of vague.

William Antholis:

On the one hand, they didn’t want presidents impeached for policy reasons, or maladministration as they put it. But they also didn’t want it to be such a high crime as murder where there were things like treason where you couldn’t remove a president, so they wanted to have some space. And they left it as both a legal matter and for political judgment. Okay, so now we have this super majority being the benchmark. And, um, let’s just say republicans are slowly feeling out their way on this matter and the pattern follows somewhat the pattern of people that had been Trumpish in the Republican Party versus, um, anti-Trumpish in the Republican Party, but not exactly.

William Antholis:

So for instance, the truly Trumpish people in the Republican Party were the ones that went along with his election fantasies that he didn’t actually lose the election, the fraud about the fraud. The Ted Cruzs, the Josh Hawleys, um, the Tuberville,  no one can expect that they will vote to convict the President on the impeachment charges. But interestingly, Tom Cotton who has been a Trumpish Senator, this is a Republican from Arkansas who did not support the effort to overturn the election.

William Antholis:

He has said that he does not think that you can try a past president even if the president was impeached while he was still president. Lisa Murkowski, who has been one of the most anti-Trump of Republicans, often breaks with the president, believes that the trial should go forward and has hinted that she will vote to convict and it’s leaving Mitch McConnell in the middle. Just to count the numbers here, to get to 67, assuming all 50 democrats vote to convict, 17 Republicans would need to vote to convict to get to a two-thirds majority.

Kary Antholis:

Are there any democrats who are wary of trying a past president?

William Antholis:

Well, I think everyone’s eyes are on Joe Manchin. He comes from the most Trumpish, the reddest state of any democrat, coming from West Virginia. And he has suggested that the Senate should move slow on impeachment, uh, reopening old wounds, making it hard to heal the country. He has not boxed himself into opposing impeachment, but he has been the one so far flashing caution.

Kary Antholis:

Are there other constitutional provisions that would bar Trump from holding further office if only a majority of senators were to vote for conviction, but not two-thirds?

William Antholis:

Yeah, going back to why convict, right? You want to punish but you also want to prevent him from coming back again. And that’s the reason Republicans might want to go down this route. And again, there is some uncertainty, right? If Tom Cotton is correct that the Senate can’t try a past president, that might suggest that even this isn’t the right avenue. I think that the Supreme Court would defer. If he were actually convicted by a two-thirds majority, my view is that the Supreme Court would defer to this act of Congress.

William Antholis:

The power is clearly given to Congress to do this, they’ve done it in the past for judges. Um, and if Trump tried to run again after being convicted, and denied office again, and it came to the federal courts, uh, and it was appealed all the way to the Supreme Court, my sense is that the Supreme Court would back the senate into two-thirds. But what if they don’t convict? Is there another way to do this? I think that’s what your question is. Well, it turns out there is another way to do it and that’s the 14th Amendment.

William Antholis:

The 14th Amendment, which most legal scholars know because of due process, was passed essentially to make sure it was a civil rights amendment, to make sure that people couldn’t be denied justice through due process, that is African-Americans, former slaves. An important part of the 14th Amendment is Section 3 which was an effort and had nothing to do … Well, it had everything to do with slavery, but nothing to do with slaves and African-Americans, it had more to do with the insurrectionists. The 14th Amendment was aimed at preventing former Confederates from holding high office so that by holding high office, they couldn’t then go back and prevent former slaves from enjoying their rights as citizens.

William Antholis:

So the 14th Amendment’s third section prohibits any person, quote, any person who has “engaged in insurrection or rebellion against” the United States “from holding any office under the United States” In order to invoke the 14th Amendment colleague, Philip Zelikow, who used to be the Director of the Miller Center is, uh, both, a historian and a- a- a lawyer and legal scholar. He believes that all that is required is each house of Congress signaling that someone has been, um, an insurrectionist  is that they have either aided or given comfort to those who have acted against the United States.

William Antholis:

And Philip seems pretty certain that again, going back to how this would all play out in law. If both houses of Congress indicate that they think that Donald Trump even gave comfort to the insurrectionist and remember, within hours after the insurrectionist, he said, “I love you.” Okay, that phrase which seemed Goofy Donald Trump and, uh, repulsive Donald Trump may have actually been insurrectionist comforter Donald Trump. Both houses of Congress by simple majority say that Donald Trump gave aid and comfort to the insurrectionists. Um, that would deny him ever holding office again. And so if he tries to run, say he wins the nomination on the Republican side, but people tried to deny putting him on the ballot to be a federal office holder, the belief is that the federal courts would prevent him from being put on the ballot.

Kary Antholis:

How do you think this is going to play out over the first three weeks of the Biden presidency?

William Antholis:

Well, I think, first of all, I think even though the 14th Amendment option is available to the House and the Senate, I think that they’re going to move to impeachment. And I think they will do it in the first three weeks of the Biden presidency and not wait several months, perhaps. It wasn’t just Joe Manchin, Representative Clyburn from South Carolina had suggested this at first so the newly elected and newly inaugurated President Biden can move his COVID agenda forward. I think they want to strike while the iron is hot, and that they’re going to do that and I think they’ll do it in the first three weeks.

William Antholis:

And the reason for doing that is impeachment is so widely known, and it is a both legal and political avenue, clearly staked out in the Constitution. And the democrats will both want to do this to prevent Trump from running again, and will want to get Republicans on the record either as acquitting or convicting the president, and that Mitch McConnell himself may have reason to do this. Um, and it’s a real question for McConnell and I think it cuts in both directions. On the one hand, he has reason to try and to convict Trump. He doesn’t want to be seen as the prime mover on it because the true Trumpish forces in his party would come after him, but he has indicated that he thinks that this is an impeachable offense.

William Antholis:

Remember he was in the well of the Senate when the insurrectionist broke into the Congress, and were targeting him for having him and the Vice President, Pence for letting the certification and the acceptance of Joe Biden’s victory go forward. So he was personally targeted. He also wants to protect the prerogatives of Congress. And going back to the British King, the great phrase, “If you’re going to go after the king, you must kill him.” Mitch McConnell went after Trump, he let Trump’s loss in the election move forward and he might as well prevent him from ever running again. And if you just confine it to the legality of the issue, he has all kinds of reasons for doing it.

William Antholis:

If it extends out to the political legality of the issue which is preventing him from running, he has reason to do it. His biggest reason to not do it is it might hurt his chances of becoming Senate Majority Leader again in 2022. He’s not up for reelection until 2026. He was just reelected in 2020. But it’s an evenly divided senate at 50-50. There are a number of Senate seats, a third of the Senate is up again in 2022. The Republicans are playing defense in 2022 and he will want to protect and or help advance the case of as many senators as he can. So I am certain that Mitch McConnell will count all of the votes including can he get to 17? That is 17 Republicans to, um, to convict the president, and by getting to 17, is he putting any Republicans at risk of losing reelection?

William Antholis:

And that’s a complicated calculus for him and I’m sure he is counting those votes because he’s a master vote counter. That’s what we know about Mitch McConnell.

Kary Antholis:

I want to push back on the idea that they’ll conduct this trial in the first three weeks of the Biden administration. There’s an enormous investigation ahead into the circumstances surrounding the storming of the Capitol and there’s a lot of information we don’t know and at least titularly, Donald Trump still presides over the government that’s tasked with administering this investigation. Isn’t there something to the idea that not for political, but for evidentiary reasons, they should take some time to actually collect the evidence of what Donald Trump did and who he may or may not have conspired with leading up to and after the storming of the Capitol before they actually conduct the trial? And so wouldn’t that speak to extending the time period for the investigation? What is the clock on the senate? And why wouldn’t Schumer afford himself the time to properly investigate this before they put on their case?

William Antholis:

So it’s a really interesting question of how a senate trial and the evidentiary process in a senate trial differs from and or can be connected with the federal investigation in the District of Columbia. Remember, the District of Columbia is a federal district, so that’s a federal court what their evidentiary collection looks like. Remember, the Senate trial is a trial and a legal proceeding designated by the Constitution given to the Senate. So once the senate begins a trial, that trial doesn’t have to happen immediately, but the trial process begins and has to happen within two days.

William Antholis:

That means the Senate can use some period of gathering evidence, taking testimony. Um, the testimony can be at trial, it can be affidavit style, they can do their own investigation. It’s uncertain what the senate trial looks like and how it proceeds and whether they would use evidence gathered by federal prosecutors. I believe they have that open to them as an option. I also believe that they can just simply go with what information they have. Now, the Articles of Impeachment are quite limited, however. This is the really quite fascinating thing. They were just limited to incitement of insurrection.

William Antholis:

They don’t go to conspiracy toward insurrection,  which it- it who knows? It could turn out that Trump was actually communicating with insurrectionists or people that work for Donald Trump were communicating with insurrectionists.

Kary Antholis:

Well, but isn’t conspiracy implicit in incitement? I mean, you can be inciting and, I mean, conspiracy would be evidence of incitement.

William Antholis:

True. Let’s just put it this way. That would be an even higher crime than the article of impeachment that was written by the House. The House article impeachment was limited to a pretty narrow thing, including quoting the President of the United States with phrases such as if you don’t fight like hell, you’re not going to have a country anymore. Um, you know, where he stood and addressed the crowd at the ellipse, and reiterated false claims that, And now quoting the president, “We won this election and we won it by a landslide.”

Kary Antholis:

Right, but he also uses the word when he tells them to march down to the Capitol, he uses the word peacefully. And I think his entire defense will hang on his use of that word. But my point is that evidence of conspiracy, evidence of inaction when he’s being called to call out the National Guard, beyond the crimes that those may or may not constitute themselves, they’re also evidence of intent to incite.

William Antholis:

Look, my sense is that the Senate has the power to, um, subpoena any of the people around President Trump and collect that evidence and put it on, uh, put it on stage themselves. If you remember back, it’s crazy that it’s only been a year ago, but if you remember back to the last senate trial of President Trump which was just only a year ago. The question was would Mitch McConnell’s senate subpoena John Bolton to testify?” And they chose not to. Well, this isn’t Mitch McConnell’s senate anymore. If Chuck Schumer’s senate wanted to-

Kary Antholis:

Let me interrupt. In fact, it’s neither of their senate because it’s a 50-50 break.

William Antholis (40:46):

And that’s true and the vice president can’t vote because the Vice President is limited under the Constitution of not being involved in a senate trial. That said, that said, in a 50-50 div- divided senate with Mitt Romney being one of the Republican senators who had voted to convict last time and Lisa Murkowski my sense is that there are going to be more than 50 votes in favor of listening to whatever evidence Chuck Schumer wants to put forward to prosecute this case.

William Antholis:

He’ll have 51 votes to proceed with the trial. And for instance, the Vice President is someone that could be called to testify. Uh, I’m sorry, Vice President Pence, not the Vice President, former Vice President Pence, soon to be former Vice President Pence to get the verb tenses right here, um, could be called to testify. What was your conversation like on the morning of January 6th Mr. Former Vice President where former President Trump asked you to overturn the so called fraudulent election? Um, what was his state of mind at that moment? And when he got on the stage at the ellipse and said, um, and called you out by name, and indicated that you were weak, and told that crowd to march to the Capitol.

William Antholis:

And when that crowd stormed, and you later heard that they were walking the hallways chanting, “Where’s Mike Pence? Hang Mike Pence.” Do you think that President Trump had in mind the idea of intimidating you and using that crowd to intimidate you? Wouldn’t you say former Vice President Pence, that that was an incitement for that crowd to overturn the process of the Congress that you were overseeing? Oh, no, he was just playing. Can you- can you really imagine Mike Pence getting up there and saying, “It- it’s just the way that Donald Trump is.”

Kary Antholis:

I honestly, I can’t imagine that. But what I think is much more challenging to Donald Trump is the other people testifying that they call the Defense Department. The Defense Department refused to allow the sending of National Guard troops for 60 minutes and then you call Kash Patel, and ask him, why did you withhold approval of National Guard troops to go to the Capitol? And you also asked the former Sergeant at Arms.

Kary Antholis:

Why did you not pass along to Senator McConnell and Speaker Pelosi information that you had about intelligence that there were going to be efforts to storm the Capitol? Those kinds of things. Oh, and you would ask the Secret Service why, when the Capitol was being stormed, did you not immediately remove the President of the United States to a safe location when the government of this country was under attack? Those kinds of questions I think will speak to Donald Trump’s intent.

Kary Antholis:

In other words, Mike Pence can’t really speak to Donald Trump’s intent. What can speak to Donald Trump’s intent is his actions and the actions of the presidency before, during and after the events of January 6th.

William Antholis:

Well, I guess I accept this assessment of where Pence might act. I can imagine given that Pence did not invoke the 25th Amendment, the amendment that says that the President is no longer fit to serve. His reading of that, uh, and he was quite clear in his letter back to Pelosi who demanded the 25th Amendment, otherwise, she was going to move forward on impeachment. His view is that the 25th Amendment unfit is a medical determination, not a constitutional interpretation.

William Antholis:

So the question to Mike Pence is, and it’s hard to know how, honestly, how he would answer this. The question to Mike Pence is, “Did you think that Donald Trump believed himself to be trying to overturn the constitution? He was certainly trying to overturn Mike Pence’s interpretation of Mike Pence’s role in the Constitution. But he could say Donald Trump and I just had different views about the Vice President’s role. He had his view which I believe to be wrong, but he believed it to be right and he was acting on what he believed to be right under the Constitution, and that’s not insurrection.

William Antholis:

The question back to Congress is: Are you, Congress, willing to give Donald Trump the same pass that Mike Pence would be doing if he argued that? Right? Are you the Congress willing to say that the President, because he didn’t think he was committing a crime, didn’t commit a crime? Um, intent, uh, and, you lawyers will have to tell me, uh, what counts as illegal here. But if I commit a crime and think I’m not committing a crime, am I innocent? My understanding is, in most cases, intent is part but not entirely, the essence of a decision about whether someone acted illegally?

Kary Antholis:

Yes, although whether Donald Trump knew it was a crime or not to incite that crowd, to storm the capital, I don’t think is relevant. What’s relevant is did he intend to incite the crowd?

William Antholis:

Well, you can incite a mob, but a mob is different from an insurrection, right? Insurrection is technically overthrowing a government. Now, look, I think that this is a preposterous claim. But one could imagine the claim where Donald Trump says, “I was inciting that crowd to uphold the Constitution, not to overthrow it.”

Kary Antholis:

Right, and…

William Antholis:

And then the Congress has to decide, are you willing to accept that either as a statement of his innocence or as a justifiable defense? And if I were a member of Congress, I wouldn’t accept that defense. But one could imagine him making that defense.

Kary Antholis:

But here’s where Trump’s actions after the breach of the Capitol and during that 40 or 50 minutes where the mob had control of the Capitol. This is where Trump’s actions during that time are relevant to the issue because at that moment, it was clearly an insurrection, right? The mob controlled the Capitol. Congress was in hiding, Minority Leader McCarthy was on the phone with Trump demanding that he act and Trump was resistant to it.

Kary Antholis:

McCarthy went on Fox News and spoke about his anger at the president. And that’s why I think evidence of Trump’s actions during the insurrection speak to his intent in inciting it. And I think in my reading of the situation may be the most pivotal evidence that the Senate, that the prosecutors in this Senate will put forward towards the conviction of Donald Trump, both as an evidentiary matter and as an emotional matter for those senators who sat in that senate as their building was under siege.

William Antholis:

Look, I think what you’re pointing to, in my view, argues for moving the trial early if you want to convict. Now, here’s where again, I’m- I’m wandering into a dangerous territory which is trying to think like a lawyer which I’m not. But my sense is that you want the raw emotion of the moment, particularly for those who lived through the experience and the longer you wait, the more that emotion is sapped from what happened. And if you watched, the House debates over the article of impeachment.

William Antholis:

The Republicans who voted for impeachment, the 10 Republicans who voted for impeachment, you could see the emotion dripping in their voices. Um, it- it was, it was palpable what they had all lived through. And I think the longer you wait, the more you lose that. Uh, and I think what it also allows in the early days of a Biden administration is an opportunity for, at a moment where this is still raw for the whole country. It allows any, even if they don’t get the 17 Republicans to vote to convict, it allows the number of Republicans that do go in that direction to say to their constituents, “I reached out to the other side. I demonstrated that I’m, um, bigger than our party. I am putting country above party.” That’s quite powerful.

Kary Antholis:

One last question before I let you go. What’s the single thing that we should look for as a bellwether of how this is going to go after January 23rd and the democrats control 50 Senate seats?

William Antholis:

The one thing I’m looking for is how Mitch McConnell responds to the procedural tactics that will happen during the Senate trial. The senators are supposed to sit [inaudible 00:52:44], but they might have to vote on calling witnesses, um, and looking at various, uh, kinds of evidence that will, of course, be managed by the House impeachment managers and the President’s defense team. But the senators all end up having a say in this if any of this comes to a vote and that’s the thing to watch.

Kary Antholis:

Bill before we leave, are there any last thoughts that you want to share about this entire experience?

William Antholis:

Well, it’s been a really dark time. And, um, and I’ll just say this, since we didn’t talk about it, as somebody that lives in Charlottesville, two blocks from the Lee Statue that was the source of protest three and a half years ago now. A lot of us have a lot of PTSD over what happened. Um, it was President Trump’s first crisis and it- it is striking to me how his last crisis mirrors that and how- how little he learned from that, if anything, he went in the opposite direction.

William Antholis:

Rather than calming a riot, he did incite this riot. Um, and I think it’s fitting that a trial move forward so that the country can see and can make up its own mind about whether he’s guilty of trying to overthrow, or encouraging a mob to overthrow the People’s Government.

Kary Antholis:

Bill Antholis, thanks so much for being with me this morning. Um, happy Sunday and happy Inauguration.

William Antholis:

Any excuse on a Sunday morning Kary.

Kary Antholis:

That concludes my  interview with William Antholis. As I mentioned at the top of the interview, it was conducted last Sunday, January 17.  Since then, all three new Democratic Senators have been sworn in, Nancy Pelosi announced that she will deliver the Article of Impeachment on Monday, January 23 and Chuck Schumer announced that the Senate Trial will begin two weeks from Monday on February 9.