Less than one week before Donald Trump’s historic second impeachment trial, House Democrats and the former president’s defense team are putting forward their arguments over the former president’s role — if any — in the deadly Jan. 6 Capitol riot.
Trump previously was impeached by the House in late 2019 and acquitted by the Senate in February 2020 on two charges: abuse of power and obstruction of Congress. The GOP-led Senate acquitted Trump on both charges. Prior to Trump, only two presidents had been impeached, Andrew Johnson and Bill Clinton. Both were acquitted by the Senate.
The latest impeachment charge — authored by U.S. Reps. David Cicilline of Rhode Island, Jamie Raskin of Maryland and Ted Lieu of California — alleges Trump incited the violence that led to the death of one Capitol Police officer who died from injuries suffered in the riot and the shooting death of another protester. Three other people died in what authorities said were medical emergencies.
The unprecedented second impeachment of an American president came without hearings, witnesses or testimony. Trump’s first impeachment in the House happened after weeks of preparations among top Democratic leaders, including House Speaker Nancy Pelosi and Adam Schiff of California, who was the lead House impeachment manager.
On Tuesday, Democrats filed a legal brief in their most detailed case yet of why the former GOP president should be convicted and permanently barred from office.
The brief attempts to link Trump’s efforts to overturn the results of the presidential election to the Jan. 6 riot at the Capitol and argues he must be found guilty when his impeachment trial opens next week. Trump’s team — which underwent a shakeup over the weekend — is basing its argument on the First Amendment and whether a former president can even be tried in the Senate at all.
Here’s a look at the arguments from both sides:
‘SINGULARLY RESPONSIBLE’
Who is responsible for the riot? Democrats say there’s only one answer, and it’s Trump.
The Democrats contend that Trump was “singularly responsible" for the Jan. 6 attack by “creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc.” They say it's “impossible” to imagine the riot unfolding as it did without Trump's encouragement, and they even cite as support a fellow Republican, Rep. Liz Cheney of Wyoming, who said essentially the same thing.
Trump's lawyers, by contrast, suggest he can't be responsible because he never incited anyone to “engage in destructive behavior.” They concede there was an illegal breach of the Capitol that resulted in deaths and injuries. But they say the people who are “responsible” — the ones who entered the building and vandalized it — are being investigated and prosecuted.
FIRST AMENDMENT FAULT LINE
Trump's lawyers don't dispute that he told supporters to “fight like hell” before the Capitol siege. But the defense says that Trump, like any citizen, is protected by the First Amendment to “express his belief that the election results were suspect.” He had an opinion that he was entitled to express, they say, and if the First Amendment only protected popular speech, it'd be “no protection at all.”
House Democrats don't see it that way. For one thing, they say the First Amendment is meant to protect private citizens from the government, not to allow government officials to abuse their power. And while a private citizen may have a right to advocate for totalitarianism or the overthrow of the government, “no one would seriously suggest” that a president who adopted those same positions should be immune from impeachment.
LINE OF SUCCESSION
The impeachment managers state that loyalists egged on by Trump directly endangered the safety of lawmakers who fled the House and the Senate as the rioters poured in.
Among those affected were the government's most senior leaders.
Those in the line of succession for the presidency after Trump — then-Vice President Mike Pence, Pelosi and Senate Pro Tempore Chuck Grassley — were all in the Capitol and forced to flee for safety. Trump’s conduct not only “endangered the life of every single Member of Congress,” the Democrats wrote but also “jeopardized the peaceful transition of power and line of succession.”
The brief details threats to Pence and Pelosi as rioters ransacked the building and “specifically hunted” them. According to the document, which cites media outlets and videos, insurrectionists shouted, “Hang Mike Pence!” and called him a traitor because he’d indicated he would not challenge the electoral count, as Trump wanted. One person is alleged to have said that Pelosi would have been “torn into little pieces” had she been found.
The Democrats also describe the terror felt by lawmakers and staffers during the siege. “Some Members called loved ones for fear that they would not survive the assault by President Trump’s insurrectionist mob,” the impeachment managers wrote.
DENY, DENY, DENY
That’s the message from Trump’s defense team, which used the word “denied” or “denies” 29 times in its 14-page brief.
Trump’s team denies that the impeachment trial can be held because he is no longer in office. They deny that he incited his supporters to violence. And they deny he did anything wrong Jan. 6 or the weeks leading up to the riot.
When Trump told the crowd, “If you don’t fight like hell, you’re not going to have a country anymore,” he was merely pressing the “need to fight for election security in general,” Trump’s lawyers claim. He was not attempting to interfere with the counting of electoral votes.
“It is denied that President Trump ever endangered the security of the United States and its institutions of Government,” they wrote. “It is denied he threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government."
Rather, they say, he "performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people.”
There was no widespread fraud in the election, as has been confirmed by a range of election officials across the country and by former Attorney General William Barr. Nearly all the legal challenges to the election put forth by Trump and his allies were dismissed.
HISTORY LESSON
Both sides are at odds whether a trial is permissible now that Trump has left office — and the seemingly arcane argument could be key to his acquittal.
Trump's lawyers say the case is moot since he is no longer in the White House and the Senate therefore doesn't have jurisdiction to try him in an impeachment case. Many Senate Republicans agree, and 45 of them voted on that basis to end the trial before it began. A two-thirds vote of the Senate would be required for Trump's conviction.
It is true that no president has faced impeachment proceedings after leaving office, but House managers say there's ample precedent. They cite the case of former Secretary of War William Belknap, who resigned in 1876 just hours before he was impeached over a kickback scheme. The House impeached him anyway, and the Senate then tried him, though he was ultimately acquitted. Democrats also note that Trump was impeached by the House while he was still president.
The framers of the Constitution intended for the impeachment power to sanction current or former officials for acts committed while in office — with no “January exception,” Democrats wrote. Not only that, they say, the Constitution explicitly allows the Senate to disqualify from future office a former official it convicts.
That possibility, they suggest, makes the case against Trump — who could mount another White House run in 2024 — anything but moot.
The Associated Press contributed to this report.
