Where were the details of Trump’s actions while the riot raged? Where was the evidence to support their specific charge of incitement?
Where were the details of Trump’s actions while the riot raged? Where was the evidence to support their specific charge of incitement?
I f you figure the fate of Donald Trump and the future course of constitutional governance in the United States hinge on how Justin Trudeau feels about the January 6 riot on Capitol Hill, you would have loved being in the Senate chamber watching Democratic House managers’ prosecution of the impeachment case.
On the other hand, if you were wondering what happened to Brian Sicknick, the Capitol police officer who died after the siege, and whom the Democrats formally allege was brutalized by rioters at then-President Trump’s urging, you’d have come to the wrong place.
After more years in the trial biz than I care to count, this was a first for me. In every trial I have ever prosecuted, supervised, or analyzed, if a killing was alleged, then the killing became the central focus of the prosecution’s case. If it was an especially egregious homicide — and Democrats allege that Officer Sicknick was struck in the head with a fire extinguisher by the mob of Trumpies — prosecutors always took their time: opening the case with it, closing the case with it, and in between proving it up in chilling detail.
The impeachment prosecutors mentioned Officer Sicknick’s death almost in passing in their opening, and then seemed to forget it was in their impeachment article during their presentation of evidence. When lead impeachment manager Jamie Raskin (D., Md.) closed the case on Thursday afternoon, I counted about five mentions of Thomas Paine but not a single utterance of the name Brian Sicknick. That doesn’t seem like common sense to me.
That is not to say the prosecution did not include hair-raising video of police officers being assaulted and abused. Nor does it mean that Officer Sicknick’s tragic death at age 42 is beside the point. As I said this week in a column on the subject, his demise may well be traceable to the Capitol riot even if the House Democratic prosecutors have misrepresented how it happened. Having set in motion the events that led to the riot, President Trump is accountable for the damage the riot caused.
Nevertheless, “set in motion” is not the same thing as incited.
Not surprisingly, Trump’s defense team used only three of their allotted 16 hours to counter the prosecutors. What we’re calling a Senate “trial” is actually political theater, and the Trump camp needed a little time to present their video clips of Democrats acting irresponsibly in order to rebut the House managers’ presentation of Trump acting irresponsibly. Had this been a real trial, though, Trump’s lawyers would have been tempted to take just three seconds, which is about how long it takes to say, “The defense rests.”
That is what generally happens when the prosecution has not proved its case. The defense has no burden to prove anything. It can win by relying on the prosecution’s default. Plus, there is no point trying to mount an affirmative defense of the former president’s conduct on January 6 — particularly the two months that preceded the siege and the hours during which the commander-in-chief sat on his hands while the Capitol was stormed. The only thing that can credibly be said in Trump’s behalf is that his atrocious behavior was not quite as atrocious as what the House alleged.
It is true that the January 6 rally that descended into violence never would have happened if Trump had not encouraged it. It is true that he relentlessly stoked his supporters with nonsense about how the election was stolen from him — that he riled them up publicly with a tale of gargantuan fraud that his lawyers did not dare try to prove in court, despite being given repeated opportunities to do so. It is true that it was foreseeable — even if government-intelligence analysts underestimated the possibility — that a crowd of many thousands would include groups of potentially violent radicals and stray sociopaths. And it was obviously true that, if the president encouraged thousands of people to march on the Capitol, and if some violent elements were already getting aggressive with outmanned security forces even before the marching started, then something terrible could happen.
This was reprehensible behavior by a president of the United States on a shocking scale. It illustrated that Donald Trump is not fit to be president. But of course, that is why he no longer has the job. Two months before the riot, the American people voted him out of office because his antic personality had wearied them, even though his administration’s personnel and policies were a dramatic improvement over his predecessor’s.
That said, though, Trump’s conduct did not amount to incitement. That is what the House chose to charge him with in their impeachment article. Democrats were repeatedly warned that this was a strategic blunder — or, better, that it would be a strategic blunder if the objective truly were to impeach, remove, and disqualify him (which, patently, it was not).
There are many problems with the House managers’ case, but the principal one is that the proof is insufficient on the main element of an incitement case, intent. This defect is all the more glaring because the evidence Democrats presented is perfectly consistent with impeachable offenses that they failed to charge.
It is fair enough to observe that an impeachable offense need not be a penal crime. I’ve said it countless times myself. The problem here, however, is that the House charged incitement, which is a penal offense, the essence of which is intent.
Indeed, incitement is one of the few crimes you’ll find in the criminal code where intent is mentioned not once but twice. Because we are committed to free political speech, there is no offense of incitement unless prosecutors establish both (1) specific intent that another person engage in a violent felony, and (2) that the solicitation of violence occurs under circumstances strongly corroborative of the intent to cause violence. The specific intent to cause violence is so central to incitement that a defendant can be convicted even if the violent crime solicited does not happen as long as the intent is proved; by contrast, if a violent crime does happen but intent is not proved, there is no incitement.
The House managers did not come close to proving that Donald Trump wanted violence at the Capitol. They proved that he wanted intense political pressure at the Capitol. They proved high crimes and misdemeanors that they did not charge: Trump stoked a throng of supporters to descend on the Capitol for a raucous but peaceful rally that he hoped would induce Republican members of Congress and the vice president to refuse to count the electoral votes of a handful of states that President Biden had won. In effect, Trump was encouraging federal officials to violate their constitutional duties, while simultaneously undermining the Constitution’s election system, in which the states retain sovereign authority over their electoral votes and Congress’s only function is to count them, not approve them.
Two final questions have to be asked.
First, what were the House managers doing for the past month? Was there an investigation? Their presentation started with a gripping video, but after that, it was a meandering regurgitation of information that was already known — mostly media reports stitched together with allegations mined from complaints filed against the arrested rioters. This could not prove Trump’s intent. Without having developed proof to fill the void, the prosecutors tried to substitute specious legal theories — that the president was somehow the commander-in-chief not just of the armed forces but of American citizens, who believed they were following his “order” to “fight like hell”; or that Trump’s intent was irrelevant if some of his supporters intended violence and that was “foreseeable.”
Second, as I’ve previously argued, the patent impeachable offense here, the one to which there is no defense, was the president’s dereliction of duty in his actual commander-in-chief role as leader of the armed forces. Trump failed to dispatch forces to repel an attack on the seat of our government. Any competent prosecutor would establish that by proving, minute by minute, what the president was doing in the White House during the hours of the siege.
So, where was the proof of that? Nowhere. The managers showed video of what was happening at the Capitol and read news reports and tweets. We could have done that ourselves. We know press outlets say he was watching television, knew how bad it was, and refused pleas to take action. Well, did he? Prosecutors do not rely on media reports. They are supposed to interview witnesses and distill for the tribunal the relevant, probative evidence that proves the case. Did they? Obviously not: During the questions posed to counsel late Friday afternoon, Democratic senators implored the House managers to explain in detail what Trump was doing while the House was under attack; they had no answer except to say he must have known about it — it was on every channel.
There is nothing dumb or incompetent about House Democrats and the able lawyers they designated to be impeachment managers. So how did we come to this point? This is not the Ukraine kerfuffle that led to Trump’s first impeachment. In this situation, President Trump engaged in clearly impeachable conduct. Yet, instead of describing it accurately, House Democrats charged a crime they could not prove and then went through the motions, inevitably failing to prove it. In the meantime, they short-changed the viable dereliction case they had failed to charge, and conducted a proceeding so heavy on legerdemain and bereft of due process that they stand a better chance of chasing Republican votes away than attracting the daunting 17 they need for conviction.
Having decided they could not win an impeachment trial with Trump already out of office, Democrats used the opportunity to promote a political narrative tying Trump, his supporters, and Republicans generally to white supremacism. The silver lining to the dark cloud of January 6 could have been a coming together to condemn political violence, of any stripe, and anyone who abets it. Twenty years ago, violent, ideologically motivated attacks on the United States jarred us into remembering our common bonds. Now, they’re just more fuel on the fire.