The Legal Arguments in Trump’s Second Impeachment Trial

The second impeachment trial of Donald Trump begins in the Senate today. The single article of impeachment returned by the House of Representatives on January 13 charges the former president with Incitement of Insurrection for his false challenges to the presidential election that culminated in the riot at the Capitol on January 6. Because Trump is already out of office, the primary purpose of the impeachment proceeding is to determine whether the Senate should disqualify him from holding any office of “honor, trust, or profit under the United States” in the future. Given Trump’s claims that he may run for president again in 2024, this is a question of some importance.

The House impeachment managers and the lawyers for the former president have filed briefs outlining their legal arguments. Those arguments fall into two main categories: arguments about Trump’s conduct and whether it justifies the sanction of disqualification, and arguments about the impeachment process itself and whether the trial of a former president is constitutional. The case against Trump on the merits is strong. But in the end, many Republican Senators are likely to take refuge in the “process” arguments and claim that a vote to impeach would be unconstitutional. This will allow them to avoid appearing to condone Trump’s misconduct while still voting to acquit and escaping the wrath of Trump’s millions of supporters.

Rioters in the Capitol
The rioters in the Capitol

The Events Leading To Impeachment

The House brief describes in detail president Trump’s assault on the 2020 presidential election. Much of the impeachment discussion has focused on Trump’s speech to the mob outside the White House on January 6, just before his supporters stormed the Capitol. But as the House brief points out, that speech was merely the culmination of a months-long attack on our democracy that began even prior to the election.

As early as the summer of 2020, Trump repeatedly refused to commit to a peaceful transfer of power if he lost the election, saying he would have to “see what happens.” At rallies and on Twitter he regularly claimed that the only way he could possibly lose the election would be if it were rigged against him. Before a single vote was cast, he was priming his supporters to believe that any result other than a Trump victory would  mean the election had been “stolen.”

Once the election returns started to come in, Trump repeatedly falsely claimed to be the winner. When the networks called the race for Biden, Trump declared the election results were fraudulent. In the weeks that followed, in addition to continually claiming that he was the true victor, he tried to pressure state officials to overturn the lawful election results. He summoned Michigan state officials to the White House to urge them to change the outcome of their state’s election. He repeatedly pressured and attacked Georgia state officials — Republicans who heroically resisted him and denied Trump’s claims that their election was tainted by fraud. In a now infamous, recorded call with those officials, Trump implored them to “find” about 12,000 additional votes to swing the state’s election to him.

Evidence discovered fairly recently also shows that Trump tried to use the Department of Justice to help him overturn the election results. Attorney General William Barr resigned after saying he saw no evidence of widespread election fraud. Trump then tried to pressure Barr’s successor Jeffrey Rosen to pursue voter fraud claims. When Rosen resisted, Trump reportedly hatched a plot to fire Rosen and replace him with a loyalist who would do his bidding, abandoning the plan only when senior DOJ officials threatened a mass resignation if he went forward. 

Trump also urged his supporters to come to Washington D.C. on January 6 to “fight” to stop Senate from counting the electoral votes and certifying Joe Biden as the winner. On December 19, he tweeted: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”

Then on January 6, Trump addressed the crowd at his so-called “Save America” rally. Before he spoke, his attorney Rudy Giuliani told the crowd it was time for “trial by combat.” Intelligence information, to which Trump would have had access, made it clear that the crowd was potentially dangerous. Many had brought gear such as ropes, ladders, and zip tie restraints. Some of them were armed, and carried plans of the Capitol. Trump addressed them, told them they needed to “fight like hell” to save the election from being stolen, and urged them to march to the Capitol. The riot ensued.

The House brief also details how during the riot Trump failed in his duty to protect the country – and to protect the co-equal branch of government on which he had just unleashed a mob. When reports of the riot came in, he reportedly was delighted and could not understand why others in the White House did not share his excitement. He resisted sending in the National Guard. Only after several hours did he release a tepid video message urging the rioters to go home, while still telling them that they were great people and he loved them.

The House managers present these actions as conclusive evidence that Trump violated his oath to protect and preserve the Constitution and to faithfully execute the laws of the United States. As they note in their brief: “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.”  As GOP Representative Liz Cheney put it when voting for impeachment: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” This was a systematic, months-long assault on the free and fair elections and peaceful transfer of power that have been at the core of our democracy since the country was founded.

Trump addressing the "Save America'" rally
Trump addressing the “Save America” rally before the riot

Trump’s Defenses on the Merits

This will be an unusual trial, because so many of the facts are basically undisputed. Most of Trump’s misconduct, and the resulting chaos, took place in plain sight. Indeed, many of the House members who voted on impeachment and Senators who will take part in the trial were witnesses to, and even victims of, those events. Expect much of the evidence presented by the House managers to be videos of not only the riot itself but of Trump’s own words and actions in the weeks leading up to the riot.

There is relatively little that Trump’s attorneys can do to challenge these facts. Their arguments on the merits boil down to two claims: the insurrection wasn’t Trump’s fault, and trying to blame him for it would violate his right to free speech.

Trump’s lawyers argue he was not responsible for inciting the riot at the Capitol because intelligence sources indicate it had been planned well in advance. They argue the rioters were going to do what they had already planned to do, regardless of what Trump said during his speech. Those responsible are now being prosecuted, but Trump had nothing to do with it. As Trump’s lawyers stated in their brief: “The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons.”

The primary flaw in this argument is that it focuses exclusively on Trump’s speech on the day of the riot. It ignores Trump’s actions in the weeks and months leading up to the riot, attacking the election and urging his supporters to fight for him. The attack may have been planned in advance, but those plans did not spring from nowhere: Trump’s own actions played a key role. If you take Trump’s own actions out of the equation, it’s virtually inconceivable that the attack on the Capitol would have taken place.

The mob came to Washington after weeks of Trump urging them to act. All he had to do was give them a final little nudge. Trump’s speech was not the sole and isolated cause of the riot. It was rather the equivalent of a general addressing the troops and wishing them well as they embarked on a mission he’d been priming them for for weeks.

Further evidence of Trump’s responsibility for the riot is emerging from the cases of those individuals criminally charged with storming the Capitol. A number of them have defended their actions by claiming they were “patriots” responding to the commands of their president. They believed they were doing Trump’s bidding, answering Trump’s call to save democracy. The rioters themselves clearly understood what anyone can see: Trump was urging them to action. Having spent weeks whipping his devoted followers into a frenzy, Trump cannot now simply walk away and claim they were acting on their own.

The First Amendment Defense

The other primary defense on the merits is that Trump’s address to the mob on January 6 was protected by the First Amendment. His lawyers also claim that Trump’s repeated attacks on the election over several months are protected by freedom of speech. And they suggest there may have been some valid basis for those attacks – despite the rulings of dozens of courts to the contrary.

The First Amendment argument also suffers from the flaw that it focuses almost exclusively on the January 6 speech, rather than on Trump’s months-long course of conduct. This case is not based solely on Trump’s words. But even putting that aside, the First Amendment defense fails. As the House brief notes: “the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.” This is not a criminal case where Trump is being punished for his speech; it’s a political proceeding where he is being held responsible for his actions as president.

A president who seeks to cling to power by advocating an insurrection cannot take shelter behind the First Amendment. As the House managers argue: “No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union—even though private citizens could be protected by the First Amendment for such speech.”

The defense also suggests that the House managers have cherry-picked from Trump’s speech, focusing only on the more incendiary language while ignoring the couple of sentences where he urged the crowd to peacefully protest. But the entire speech has to be considered in context, including all of the events leading up to the January 6 rally and Trump’s knowledge of the crowd’s likely intentions. Trump cannot insert a couple of “CYA” sentences about peaceful protest in more than hour-long remarks and then claim it insulates him from responsibility for the crowd’s entirely predictable reaction to the entire speech.

Finally, even if this were a criminal case, the First Amendment does not protect speech that advocates imminent violence. As I argued in this post, there is a strong case that Trump’s speech on January 6 could be punished as criminal incitement under the prevailing Supreme Court standards. If the First Amendment would not protect Trump from a criminal prosecution, it certainly will not shield him from the political process of impeachment.

The Process Arguments

The bulk of Trump’s arguments against this impeachment deal not with the merits but with attacks on the process itself. His lawyers claim it is unconstitutional to conduct an impeachment trial of a president who is no longer in office. They also claim the House violated Trump’s rights by rushing the impeachment, and that the impeachment is flawed because Chief Justice Roberts will not be presiding.

Trial of a former president

A good deal of the argument on both sides concerns whether it is constitutional to proceed with the trial in the Senate now that Trump is no longer in office. Indeed, the first day of the trial in the Senate is scheduled to be a four-hour debate on whether it is constitutional to proceed. Almost all Republican Senators have already signaled in an earlier procedural vote that they believe the trial is improper. The precedents, and the Constitution itself, are not completely clear on this point, and there has never been a definitive ruling from the Supreme Court.

The House brief devotes a great deal of time to making essentially pragmatic arguments in favor of the power to try a former official, including a president. They argue that presidents do not get a free pass to try to subvert an election or commit other high crimes or misdemeanors near the end of their term; there is no “January exception” to impeachment. If this were not the case, presidents could try to steal an election knowing there would be no practical consequences if they fail. And any official who engaged in crimes while in office could avoid any political consequences by simply resigning immediately before the House voted to impeach. The framers of the Constitution never would have condoned such a procedure. Congress must have the power, the House managers argue, to prevent such officials from running for office again by holding impeachment proceedings after they leave office.

The language of the Constitution itself is somewhat contradictory and confusing. Article I, Section 3, Clause 6 provides: “The Senate shall have the sole Power to try all Impeachments.” Some have argued that the use of the word “all” settles the matter. It doesn’t say, for example, that the Senate may try only impeachments of current officers. Because Trump was properly impeached before he left office, this argument runs, the Senate by definition has the power to try that impeachment.

On the other hand, Article II, Section 4 reads: “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This provision seem to imply that removal is the primary purpose of impeachment. When a president or other official is already out of office, this argument runs, removal is impossible and impeachment becomes nonsensical. That turns the proceeding into essentially an impeachment trial of a private citizen – something the Constitution would not recognize or allow.

Finally, Article I, Section 3, Clause 7 states: “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.” Some argue this language suggests that disqualification from office can only follow conviction and removal. Because a former official cannot be removed, a proceeding simply to disqualify that individual is not allowed. But others, including the House managers, respond that this clause simply lists two possible punishments. In any given case it would be permissible to impose one, the other, or both. It also ensures that punishment is limited to these two options, as opposed to imprisonment, forfeiture of property, or some other penalty.

Ulysses S. Grant
Ulysses S. Grant

The Belknap precedent

The House brief cites a few 18th century precedents, in both England and the U.S., indicating that at the time the Constitution was adopted “impeachment” would have been understood to encompass proceedings against former officials to prevent them from holding office in the future. But perhaps the most important precedent is the impeachment of William Belknap, Secretary of War to president Ulysses S. Grant. In 1876 Belknap was accused of bribery and tried to avoid impeachment by resigning at the last minute. The House impeached him anyway. The Senate then put him on trial but ultimately acquitted him.

The Belknap case at least indicates that a majority of the Senate at the time believed it had the power to try a former official. However, nearly half of the Senators in  Belknap’s trial raised the same objection that is being raised by Trump: that the Senate had no power to proceed once Belknap was out of office. Because Belknap was ultimately acquitted, the proposition was never tested by any court. So although the Belknap case is a precedent, it’s not a very compelling one. It establishes that a majority of the Senate believed at the time that it could proceed, just as a majority does now. But it does not establish that this is actually constitutional.

The Risks of Impeaching Former Officials

Some claim there is a danger that impeaching former officials will be used as a political weapon to disqualify opponents from future office. For example, Professor Jonathan Turley has argued: “Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton.”

But such concerns are not at issue here. President Trump was impeached by the House while he was still in office. The only issue here is whether the Senate retains jurisdiction to try the case if the official leaves office after being impeached. Questions about whether an official could be both impeached and tried after leaving office may wait for another day.

The weight of legal opinion appears to be that a Senate impeachment trial of a former official is constitutional. A large number of constitutional law professors have signed an open letter supporting the Senate’s power to conduct this trial. But there are other scholars who disagree. Ultimately the question could only be resolved by the Supreme Court. But that would require Trump to be convicted and then move to challenge that conviction, and that outcome seems unlikely. So the Senate will proceed, but the question whether that proceeding was actually constitutional seems destined to remain unresolved.

Due Process Arguments

Trump’s attorneys also make a variety of claims that the impeachment process has been unfair, rushed, and violates the former president’s due process rights. These arguments are largely atmospherics to suggest to the public, and particularly to Trump’s supporters, that he is being treated unfairly. But they have no real merit. Impeachment is a political process, and the rules are largely what Congress says they are.

The House argues that it needed to act quickly to impeach Trump while he was still in office and possibly remove him immediately. It’s true that didn’t happen, but it potentially could have had the Senate been willing to return to Washington for an immediate trial. The House managers also point out there was little need for an extensive investigation or presentation of evidence, since so much of the offense took place in the open – including in the Capitol building itself.

There is also some hypocrisy in this claim that the impeachment is flawed because it was so rushed. On the one hand, Trump is arguing that a president cannot be impeached once he is out of office. But on the other hand, he is criticizing the House for acting quickly because his term was about to end. Apparently he would argue that the House should have done a more extensive investigation – with the result that it would have been powerless to impeach when that investigation was over because Trump would already be out of office. He can’t have it both ways.

Chief Justice Roberts Not Presiding

The Constitution provides that when the president is being tried on articles of impeachment, the Chief Justice shall preside at that trial. Chief Justice Roberts has notified the Senate he will not preside, because this trial is of a former president, not the president. The trial will be presided over by Senator Patrick Leahy, president pro tempore of the Senate, with any ties broken by vice president Kamala Harris. Trump claims this means the impeachment is unconstitutional and that he cannot receive a fair trial in a proceeding headed by the Democratic Senate.

This argument also seeks to create an appearance of unfairness, but has no real substance. The text of the Constitution supports Roberts’ decision – the president, Joe Biden, is not being impeached. The Chief Justice typically does not preside over impeachment proceedings of other officials. The purpose of requiring the Chief Justice to conduct trials of a president appears to be to prevent a conflict of interest where the vice president – who is president of the Senate – would preside over an impeachment trial that could result in him becoming president if the sitting president is removed. That concern is not present here.

In addition, the presiding officer at an impeachment trial actually does relatively little. The Senate controls everything, including admission of evidence and rulings about witnesses, by Senate vote. As former Chief Justice Rehnquist once said about his role in presiding over the impeachment of president Clinton, “I did nothing in particular, and did it very well.” There is no real basis for a claim that Trump is harmed by not having Roberts preside, because the Democratic Senate would control everything regardless.

Hiding Behind Process

Here is how the House managers conclude their brief:

The only honorable path [after losing the election] was for President Trump to accept the results and concede his electoral defeat. Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. As the Capitol was overrun, President Trump was reportedly “delighted.” And rather than take immediate steps to quell the violence and protect lives, President Trump left his Vice President and Congress to fend for themselves while he lobbied allies to continue challenging election results.

The facts supporting Trump’s conviction are compelling. But it seems likely that most Republican Senators will take refuge in the process arguments and will refuse to convict, arguing that the proceeding is unconstitutional. This will allow them to avoid appearing to condone Trump’s misconduct, while still voting to acquit and avoiding angering Trump’s supporters.

The outcome of this political process may appear preordained. Nevertheless, proceeding is the right thing to do. Even if Trump manages to avoid conviction, it sends an important message that such actions by a president are completely unacceptable. This impeachment is important as a matter of history. It will build a record and serve as a public airing of the misconduct of a president that brought us perilously close to losing our democracy. That is worth doing.  

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Prosecuting Trump for the Capitol Riot

The riot at the Capitol on January 6 has led to many calls for President Trump to be removed from office. Regardless of whether that happens, there needs to be a criminal investigation into the events leading up to the riot, and in particular into Trump’s role in inciting the riot. Criminal charges against Trump and the others involved may well be appropriate.

I’ve previously resisted calls for criminal investigations of Trump once he leaves office. The risk of criminalizing policy differences requires that we be very cautious about prosecuting an outgoing president. Part of what led so many to recoil when Trump led chants of “lock her up” at his rallies was the specter of a president using his Justice Department to pursue political enemies. DOJ has already been severely damaged during the Trump administration, and a criminal investigation of Trump by the Biden DOJ will result in further charges of politicization. And most of Trump’s misconduct in office, however odious, was likely not criminal.

But Trump inciting a mob to storm the Capitol is on a whole different level. There is no possible way to  characterize Trump’s actions as the legitimate exercise of his presidential authority; no risk that we would be criminalizing mere political disputes. This was an assault on our most cherished institutions – on our democracy itself. It requires a thorough criminal investigation, followed by any appropriate indictments.

The Riot at the Capitol

On Wednesday, January 6, Congress convened for the formal count of the electoral college votes that would officially certify Joe Biden as the president-elect. In the weeks leading up to the certification, Trump and many of his supporters made repeated unfounded allegations of voter fraud and claimed the election had been “stolen” from him. They filed dozens of lawsuits around the country alleging problems with the election. These claims were uniformly rejected by both state and federal judges, including judges appointed by Trump.

In the days leading up to January 6, Trump exhorted his millions of followers to show up in D.C. to protest the “fraudulent” election. For example, on December 19 he Tweeted: “Big protest in D.C. on January 6. Be there, will be wild!” 

On January 6, Trump held a “Save America” rally at the White House, addressing the large crowd that had gathered in response to his pleas. In a speech lasting over an hour, Trump used incendiary language, repeatedly urging the crowd to “fight” to save the country. He exhorted them to march down Pennsylvania Avenue to “stop the steal” and prevent the Democrats from “fraudulently” taking over the country. Others spoke as well, including the president’s son Don Jr. and Trump’s personal attorney, Rudy Giuliani, who urged the crowd to settle the dispute over the election via “trial by combat.”

Following the rally the crowd marched  down Pennsylvania Avenue to the Capitol. They overwhelmed the Capitol Police and broke into the building — breaching barricades, scaling walls, and breaking down doors. Once inside they broke windows and destroyed other property. They threatened the safety of members of Congress, who were forced to cower behind locked doors. Some in the crowd were armed or carried explosive devices.  Some carried nooses and chanted slogans crying they should hang Mike Pence or assassinate Nancy Pelosi. Some carried zip ties, suggesting they might intend to take prisoners. One capitol police officer died after the rioters beat him in the head with a fire extinguisher. One rioter was shot and killed by the police.

It was six hours before law enforcement was able to re-take the building. In the days since the riot it has become clear that it’s very lucky more people were not injured or killed, including members of Congress or the vice president.

The Relevant Criminal Statutes

The seditious conspiracy  statute, 18 U.S.C. § 2384, makes it a crime for two or more persons to conspire to oppose the U.S. government by force, or “by force to prevent, hinder, or delay the execution of any law of the United States.” It provides a penalty of up to twenty years in prison.

The crime of rebellion or insurrection, 18 U.S.C. § 2383, provides a ten-year penalty for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It also provides for disqualification from holding public office in the future.

Under either of these statutes, the prosecution argument would be that Trump, through his  rally and conduct leading up to the rally, conspired with others to use force to delay the “execution of [a] law of the United States” – the electoral certification by Congress. In the words of the rioters that Trump adopted, he was trying to “stop the steal.” Through the same actions he also took part in a rebellion or insurrection against the authority of the United States and gave “aid or comfort” to those who stormed the Capitol.

Those who actually broke into the Capitol may face a number of other charges as well, including unlawful entry, destruction of property, assault, and homicide. Many of those people are currently being rounded up by law enforcement, having helpfully posted pictures of themselves committing the crimes on social media.

The First Amendment Defense

Trump’s most likely defense, one already raised by a number of legal commentators, is that his speech to the mob is protected by the First Amendment. He didn’t intend for the mob to riot, this defense would argue, he merely wanted them to protest outside the Capitol to try to influence the lawmakers inside. Accordingly, his address to the crowd was protected political speech and cannot form the basis of a prosecution.

The Supreme Court has held that speech intended to incite imminent violence is not protected by the First Amendment, but the category of speech that may be prosecuted is very narrow. In the leading case of Brandenburg v. Ohio, the Court held that speech may lawfully be criminalized only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Brandenburg  the Court threw out the conviction of a Ku Klux Klan member for a rally speech at a farm in Ohio. The speech contained derogatory language about Jews and African Americans and vague references to possible “revengeance” against the government if it did not stop oppressing whites, but called for no immediate action.

The Brandenburg analysis can be broken down as follows: 1) was the speech likely to produce lawless action; 2) was that action imminent; and 3) was that the speaker’s intent. Numbers one and two here seem pretty clear. The speech was not merely likely to produce lawless action, it did in fact produce lawless action. And unlike the speech in Brandenburg itself, Trump’s speech did call for imminent action: he directed the crowd to march to the Capitol as soon he was done. The primary legal issue then becomes whether what happened was really Trump’s intent.

Evidence of Trump’s Intent   

Intent in a criminal case is usually proven by circumstantial evidence. Trump’s speech is full of references to the need for the crowd to “fight like hell,” to be “strong,” and to stop the Democrats from “stealing” the election.  On the other hand, his defenders can point to the fact that he never explicitly called for the crowd to “storm the barricades,” and that he inserted a couple of references in the hour-plus long speech to “peaceful protest.” The defense would argue that the violent phrases were just colorful metaphors. Political speech, they would note, is full of references to “fighting” for various rights. That can’t be construed as a call for actual violence.

Commentators who defend the speech as protected by the First Amendment tend to focus on simply the speech itself, isolating a few lines and arguing they don’t amount to incitement. But Trump’s intent can’t be determined one way or another by looking only at the text. Context matters, and we can’t parse Trump’s intent by looking at the speech alone any more than we can parse the intent of the entire speech by looking at a few isolated passages.

Trump’s speech and intent first have to be evaluated in the context of the events leading up to the rally. It was preceded by weeks of Trump whipping up his supporters to help stop the “fraudulent” election. Right-wing social media was full of memes issued in response, urging his supporters to show up and “fight” for Trump.

The speech also has to be evaluated in the context of the rally as a whole. Others speaking at the rally used even more explicit violent language, such as Giuliani’s call for “trial by combat.” And the rally was taking place immediately prior to an actual march to the Capitol by the crowd. This is tied to the “imminence” issue – a similar speech using similar violent language directed at Congress but given at a campaign rally in Florida, for example, would not be nearly as menacing. Here the crowd was in a position to act immediately in response to Trump’s words — and did so.   

The nature of the crowd is also important when inferring Trump’s intent. He knows he’s not speaking to the Rotary Club here. Trump knows that his supporters routinely use the language of violence, insurrection, civil war, and “second amendment rights.” All outward signs would indicate this was a crowd stoked for violence – all they needed was their leader to give them a little nudge.

How exactly did Trump expect the protestors to “stop the steal” and prevent Congress from certifying Biden as the winner, if not by storming the Capitol to shut it down? Is it plausible that he believed the unruly mob before him was going to seek to “Save America” by peacefully linking arms outside the Capitol and singing Kum-ba-yah?

I think given Trump’s history and the overall context of the speech, the evidence of his intent is strong. But what really seals it for me is what he did once the riots started.

Trump’s Actions During the Riot

Although Trump promised the crowd he would be there with them as they marched to the Capitol, in fact he retreated to the White House to watch the developments on TV. There were reports from sources inside the White House that he expressed delight and excitement as he watched the riot unfold. He also was reportedly calling lawmakers, while the riot was going on, still trying to persuade them to delay the certification process or overturn the election.

There are also published reports that when the Mayor of D.C. called for reinforcements from the national guard, Trump resisted. (Because D.C. is not a state, the local national guard is controlled by the U.S. Department of Defense – so ultimately by Trump.) Vice president Pence was reportedly the one who finally ordered the D.C. national guard to respond, after a significant delay.

Finally, after allowing the riot to proceed for more than two hours and only after president-elect Biden had already called for the violence to cease, Trump released a tepid video statement to his supporters. He repeated the false claims that the election had been stolen. He told the rioters that he understood their pain. Remarkably, he said “we love you, you’re very special,” before saying it was time to go home.  Shortly thereafter he Tweeted:

These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!

These events are compelling evidence of Trump’s true intent. If he did not intend for the rioters to storm the Capitol, you would expect him to react with shock and horror and immediately try to stop it. Instead he watched excitedly on TV, delayed sending help, and continued working to try to stop Congress from acting while Congress itself was under attack. He praised his followers, told them he loved them, called them great patriots, and told them to be proud. Those are not the words of a man disappointed by what happened. That crowd did exactly what Trump wanted them to do.

I’m not suggesting that overcoming a First Amendment defense would be a slam-dunk. It’s possible to argue that he is just a terrible person who enjoyed the riot once it began but never really intended for it to happen. The First Amendment claim would clearly be the key legal issue to be resolved in any prosecution. But if I’m the prosecutor with this evidence, I like my case.

The Benefits of a Grand Jury Investigation

Launching a grand jury investigation is not the same as determining that criminal charges are appropriate. But a federal grand jury investigation would allow prosecutors to subpoena all relevant documents including emails, phone records, text messaging records, social media posts, and the like, to fully piece together all the events leading up to and during the riot. The grand jury could compel witnesses to testify under oath, such as witnesses to the president’s conduct and statements in the Oval Office while the riot was unfolding.

Such an investigation could uncover information that makes the evidence of Trump’s intent and role in the riot much clearer. We don’t know what is contained in the text messages or emails leading up to the riot, or what conversations witnesses could testify about. The grand jury could probe all of these details to see whether charges are appropriate. 

Any investigation also needs to explore the potential liability of others around president Trump, including others who spoke at his rally, as potential co-conspirators. The president’s prime enabler, Rudy Giuliani, who called for “trial by combat” after working for weeks to overturn the election, is certainly a potential target.

A conspiracy investigation should not be limited to events on the day of the riot. It would also make sense to explore other instances of misconduct, such as Trump’s recent call to Georgia election officials asking them to “find” the  votes they would need to overturn Biden’s victory in that state. As I wrote here, due to the heightened “willfulness” standard of intent for election offenses, prosecuting that call as a stand-alone election crime would be an uphill battle. But it would make sense to investigate that incident, and others, as potentially part of a conspiracy involving a pattern of overt acts seeking to overturn the lawful election results, culminating on January 6. 

There is a great deal about what happened on January 6 that we still need to learn, but it’s clear there is at least potential criminal conduct by Trump and others. Shortly after January 20, president Biden’s Department of Justice should convene a grand jury to investigate. We can’t say for certain at this point that criminal charges would be appropriate. But we can say for certain that a grand jury investigation is called for.

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