In the brief, the House’s nine impeachment managers made an impassioned case that Trump was “singularly responsible” for the mayhem on Jan. 6 — and that he is guilty of high crimes and misdemeanors, the threshold for conviction laid out in the Constitution, primarily because he used the powers of his office to advance his own personal political interests at the expense of the nation.
To bolster their case, the managers turned to the words and actions of the country’s founders, citing lofty quotes from the Federalist Papers and contrasting Trump’s efforts to stay in office despite his electoral loss with George Washington’s insistence upon relinquishing the presidency after two terms in the interest of preserving democracy.
“The Framers of the Constitution feared a President who would corrupt his office by sparing ‘no efforts or means whatever to get himself reelected,’” the House Democrats wrote. “They were well aware of the danger posed by opportunists who incited mobs to violence for political gain. They drafted the Constitution to avoid such thuggery, which they associated with ‘the threat of civil disorder and the early assumption of power by a dictator.’”
They added: “If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”
The managers invoked dramatic imagery captured by cellphone footage and media reports of “terrified” lawmakers trapped inside the building who “prayed and tried to build makeshift defenses while rioters smashed the entryway.”
A majority of GOP senators have already signaled their plans to acquit Trump in advance of the trial, which is set to begin on Feb. 9. But House Democrats made clear that they intend to force Republican senators to contemplate the terror of Jan. 6, when rioting left five dead, including one member of the U.S. Capitol Police. In addition, two officers, one with the D.C. police department, have since died by suicide.
In their brief, managers laid out a stark and disturbing compilation of what unfolded inside the Capitol that day: members donning gas masks and calling loved ones for fear that they would not survive the assault; Capitol Police dragging furniture to barricade the House Chamber; the staff of House Speaker Nancy Pelosi (D-Calif.) hiding under a table with the lights out for hours as they listened to the rioters just outside the door.
“One Member asked his chief of staff to protect his visiting daughter and son-in-law ‘with her life’ — which she did by standing guard at the door clutching a fire iron while his family hid under a table,” the brief stated, in a reference to Rep. Jamie Raskin of Maryland, the lead impeachment manager.
House managers are hoping to call witnesses in next week’s trial, including possibly police officers who fought to fend off the attackers. The prospect of injured police officers describing the brutality of pro-Trump rioters to Republicans who regularly present themselves as advocates of law enforcement could make for an extraordinary, nationally televised scene. The mob injured more than 140 police officers, many seriously.
However, Senate Democrats and Republicans alike are reluctant to allow witnesses because it would extend the trial’s length, possibly by weeks.
Tuesday’s brief methodically laid out the Democrats’ legal argument for conviction. In addition to asserting that Trump is guilty of high crimes and misdemeanors, the impeachment managers argued that Trump is not protected by the First Amendment’s freedom of speech provision, which was never intended, they wrote, to allow a president to “provoke lawless action if he loses at the polls.”
Democrats also rejected the claim embraced by many Republicans that it is unconstitutional to convict a president after he has left office — an argument that Trump’s lawyers are expected to make in his defense.
“There is no ‘January Exception’ to impeachment or any other provision of the Constitution,” the House Democrats wrote. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”
To bolster their case, the managers cited a series of examples in which the Senate had tried officials who had already left office — albeit none of them were presidents — and a lineup of conservative officials and scholars to make the point that departing or resigning isn’t a way of escaping culpability.
Plus, they argued, “because President Trump was in office at the time he was impeached,” the Senate has no choice but to proceed.
The managers pointed to Article I, section 3, clause 6 of the Constitution, which reads that “the Senate shall have the sole Power to try all Impeachments.”
“The key word is ‘all,’” the managers wrote. “It doesn’t say ‘the Senate has power to try impeachment against sitting officers.’ ”
The argument is likely to be a pivotal one, as 45 of the 50 Republican senators voted last week to support a resolution from Sen. Rand Paul (R-Ky.), which sought to declare the upcoming impeachment trial against Trump was unconstitutional since he was no longer in office.
Trump’s lawyers and supporters in the Senate are expected to further drill at the argument that the trial itself is invalid. Such an argument is expected to be embraced by many GOP senators, who are loath to weigh in on the question off whether Trump incited the riot.
The managers’ brief warns that the consequences of taking such a procedural exception to the case before them would be dire.
“If the Senate does not try President Trump (and convict him), it risks declaring to all future Presidents that there will be no consequences, no accountability, indeed no Congressional response at all if they violate their Oath to “preserve, protect and defend the Constitution” in their final weeks,” the managers wrote.
House Democrats also cited Trump’s embrace of unfounded accusations that the 2020 election was stolen from him helped foment his supporters’ attack on the Capitol. When those false assertions failed to overturn the election, the Democrats wrote, Trump “summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue.”
They added: “The Framers themselves would not have hesitated to convict on these facts.”
The House impeachment managers urged senators to bar Trump from ever serving again in elected office: “This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior. Indeed, it is difficult to imagine a case that more clearly evokes the reasons the Framers wrote a disqualification power into the Constitution.”
One of Trump’s new impeachment lawyers said Sunday that he has no plans to advance claims about a fraud-ridden, stolen election in the upcoming Senate trial — even though the previous legal team is said to have bowed out after Trump stressed he wanted that to be a focus of his defense.
Atlanta-based attorney David Schoen told The Washington Post in an interview Sunday night that he will not “put forward a theory of election fraud. That’s not what this impeachment trial is about.”
Schoen, who was named to head Trump’s defense team Sunday evening, along with Bruce L. Castor, a former prosecutor in Pennsylvania, said he would concentrate on making the case that it is unconstitutional to impeach a president after he has left office.
A majority of Republican senators have already embraced that position, one that allows them to vote to dismiss the case without considering the merits of the charge against the president.
In another interview Monday, Schoen said he would mount a two-part strategy, arguing the constitutional issue and citing the First Amendment as a defense to incitement. “If this speech is considered incitement for insurrection, then I think any passionate political speaker is at risk,” he said, adding that Trump fully backs his approach. “I told him what I intend to do and he supports that 100 percent,” he said.
Still, Trump continues to focus on the issue of fraud in talks with associates from his private Mar-a-Lago Club in Florida, according to people familiar with the conversations.
Tom Hamburger and Josh Dawsey contributed to this report.