Democratic impeachment managers have a duty to explain how Officer Sicknick died.
Democratic impeachment managers have a duty to explain how Officer Sicknick died.
I n its article of impeachment, the Democrat-controlled House alleged that former president Donald Trump, by his “incitement of insurrection,” was responsible for murder. That is an essential rationale for impeaching Trump. It is the most serious accusation that has been leveled. The impeachment article states that, incited by Trump to storm the Capitol and “fight like hell,” Trump supporters “injured and killed law enforcement personnel,” among other heinous acts.
The accusation about killing law-enforcement personnel refers, of course, to Capitol police officer Brian Sicknick, who was pronounced dead on the night of January 7, more than 24 hours after the siege on the Capitol had ended.
Adding to the serious but vague accusation in the impeachment article, the Democratic House impeachment managers, who are the prosecutors in the Senate trial, elaborated in their publicly filed pretrial memo (at p. 28): “The insurrectionists killed a Capitol Police officer by striking him in the head with a fire extinguisher.”
It is noteworthy that the Democrats’ pretrial memo was filed on February 2, nearly four weeks after Officer Sicknick’s death. Yet, during those four weeks, significant questions about the impeachment managers’ murder allegation have arisen. It has been a bedrock principle of American due process for over half a century that if prosecutors are aware of evidence that would tend to show an allegation they made is false, inaccurate, or at least incapable of being proved, they have an obligation to disclose that fact to the accused.
So what is the Democrats’ proof that Trump supporters murdered Officer Sicknick by bashing him over the head with a fire extinguisher?
Obviously, ethical and competent prosecutors do not make an allegation of murder in the absence of an investigation. House managers presenting an impeachment case against a former president of the United States have investigative staff, the cooperation of law-enforcement agencies, and access to relevant witnesses and reports, including autopsy reports. If they were not confident about their allegation that Sicknick was brutally killed, it would have been utterly irresponsible and potentially slanderous to make it.
Despite having time and resources to conduct their investigation, the House managers cite in their February 2 brief a single New York Times article, “Capitol Police Officer Dies from Injuries in Pro-Trump Rampage” — published almost a month earlier, on January 8 (the day after Officer Sicknick was pronounced dead).
Many reports and commentators, myself included, relied on the Times’ reporting in describing the gravity of then-President Trump’s misconduct. But it must be acknowledged that this reporting suggested that the details of Sicknick’s death and what led up to it were murky. As is too often the case, the “newspaper of record” depended on anonymous sources for its weightiest allegation:
The circumstances surrounding Mr. Sicknick’s death were not immediately clear, and the Capitol Police said only that he had “passed away due to injuries sustained while on duty.” At some point in the chaos — with the mob rampaging through the halls of Congress while lawmakers were forced to hide under their desks — he was struck with a fire extinguisher, according to two law enforcement officials.
As Fox News’s Tucker Carlson points out, relying in part on a report from the website Revolver News, the story about Sicknick’s death has now changed several times.
When the officer died, the Times also published a story entitled, “He Dreamed of Being a Police Officer, Then Was Killed by a Pro-Trump Mob” (which the paper revised on January 19). This account further emphasized what the Times framed as the murderous behavior of Trump-supporting rioters toward Officer Sicknick, and the derivative culpability of Trump himself:
On Wednesday, pro-Trump supporters attacked that citadel of democracy, overpowered Mr. Sicknick, 42, and struck him in the head with a fire extinguisher, according to two law enforcement officials. With a bloody gash in his head, Mr. Sicknick was rushed to the hospital and placed on life support. He died on Thursday evening.
If there is evidentiary support for this story, it has not been made public, even though the allegation has been formally, publicly charged in an impeachment case. Numerous people have been arrested, interrogated at length, and charged in connection with the riot; no one has been charged with killing Officer Sicknick.
More to the point, unidentified law-enforcement officials told CNN of findings by medical examiners that Sicknick’s remains bore no signs of blunt-force trauma and that the fire-extinguisher account was not true. There is video from the day of the siege of an incident in which a rioter hurled a fire extinguisher at security personnel. There has been no public claim, however, that Sicknick was involved in that incident.
It appears certain that Sicknick was not rushed to the hospital directly from the Capitol. Several reports indicate that he returned to his police office. Hours after the siege ended, he texted his brother to say he had been “pepper sprayed twice” but was otherwise “in good shape.” Tucker Carlson notes that, according to the head of the Capitol police union, Sicknick had a stroke. That is consistent with a report from KHOU in Houston regarding what the Sicknick family was told about how the officer died.
Like the first Times report claiming a lethal assault with a fire extinguisher, the KHOU report about a stroke was published on January 8 (the day after Sicknick died). Plainly then, weeks before filing their pretrial brief, during which they were conducting their investigation and preparing for trial, the Democratic House impeachment managers knew there were conflicting reports about the circumstances that led to Officer Sicknick’s demise. Having had all that time to sort out the facts — and remember, House impeachment managers opened the Democrats’ presentation on Tuesday by stressing that their case is all about facts — the managers chose to allege in their pretrial brief that, after being incited by the former president, Trump supporters had killed Sicknick “by striking him in the head with a fire extinguisher.”
So what is their evidence for that grave allegation?
Under longstanding Supreme Court jurisprudence, prosecutors must disclose their evidence to the defense, including exculpatory evidence. As has been clear for weeks, due-process principles are honored more in the breach than the observance in the political theater that the Senate is calling a trial. Nevertheless, there must be rudimentary due process if the proceeding is to have any integrity.
The presiding officer of the impeachment proceedings, Senator Pat Leahy (D., Vt.), has been a champion of due process in his decades on the Senate Judiciary Committee — at least when it came to ensuring fairness to criminals and terrorists. Though he is a fierce partisan, he has insisted that he will give the former president a fair trial. So here is his chance to prove that he meant it. Will he ask lead impeachment manager Jamie Raskin to proffer the House’s proof that Officer Sicknick was killed in the manner that Representative Raskin and his co-prosecutors represented in the pretrial brief they filed last week? Will he pose that question to Raskin in public, just as the Democrats made their allegation publicly?
Clearly, if Officer Sicknick died because of something the rioters did, that is a serious matter. If that happened, former President Trump should be accountable, because he was instrumental in arranging the January 6 rally that turned violent, because he stirred up his supporters with provocative rhetoric, and because — as commander in chief of the armed forces — he failed to take action to repel the siege on the Capitol.
But if it did not happen the way the House Democratic impeachment manners have represented that it happened, we should be told that — and be told why such an inflammatory allegation was made in the impeachment article and repeated in the pretrial memo.