House managers for the second impeachment trial of former president Donald Trump have three advantages the first set of impeachment managers did not. First, the story is simple, well known and captured on video. Second, their opponents are relying almost entirely on spurious process arguments. Third, they know what Senate jurors like and do not like (e.g., repetition, lengthy argument). They should keep in mind a few simple rules in presenting their case.
First, use video whenever possible. The images of Jan. 6 are so vivid and telling that they dwarf anything the managers might verbally convey. Present statements from the rioters themselves about what drove them to the Capitol. As The Post reported this weekend: "Evidence to bolster the Democratic case has already emerged in federal criminal cases filed against more than 185 people so far in the aftermath of the insurrection. Trump’s pull on his supporters is a dominant theme. Court documents show that more than two dozen people charged in the attack specifically cited Trump and his calls to gather that day in describing on social media or in conversations with others why they decided to take action by coming to Washington.”
Second, do not rely only on the argument that Trump had incited the attack. The most powerful evidence of his willingness to wage war on democracy was his refusal to immediately call off the mob in clear, unequivocal terms. The managers argue in their brief:
... the President did not take any action at all in response to the attack until 2:38 PM, when he issued his first tweet, and 3:13 PM, when he issued a second. ... And they did not reflect any substantial effort on the part of the President of the United States to protect the Congress. During this time, not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.The next action that President Trump took — while the violence persisted and escalated — occurred more than three hours from the start of the siege. At this point, he released a scripted video that included a call for “peace” and “law and order,” and instructed his followers, “you have to go home now.” But even in that video, President Trump continued to provoke violence, telling his supporters—who were at that very moment committing violence inside the Capitol and terrorizing Members of Congress—that the election was “stolen from us.” He added that "[i]t was a landslide election and everyone knows it, especially the other side.” He concluded by telling the violent insurrectionists: “We love you, you’re very special. … I know how you feel. But go home and go home in peace.”
There is no factual question here as to his dereliction of duty and to the danger that refusing to act posed for those at the Capitol.
Third, managers should briefly and forcefully dismiss the argument that impeaching a former president is unconstitutional. They might consider simply reading the Wall Street Journal op-ed by Charles J. Cooper, a former Reagan-era Justice Department lawyer and rock-ribbed Republican. He makes a simple argument that barring someone from running for office is of course applicable to ex-officials:
That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction. The formal Senate procedures for impeachment trials acknowledge this constitutional reality, noting that a two-thirds vote to convict “operates automatically and instantaneously to separate the person impeached from the office.” The Senate may then, at its discretion, take a separate vote to impose, by simple majority, “the additional consequences provided by the Constitution in the case of an impeached and convicted civil officer, viz: permanent disqualification from elected or appointed office.”Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer. Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.
Likewise, conservative constitutional scholar Michael McConnell explains, “Article I, Section 3, Clause 6, states: ‘The Senate shall have the sole Power to try all Impeachments.’ The key word is ‘all.’” He reasons: “This clause contains no reservation or limitation. It does not say ‘the Senate has power to try impeachments against sitting officers.’”
Moreover, what’s to stop a president from simply resigning from office to avoid conviction in an impeachment hearing? Common sense dictates that Congress needs the power to bar such a president from future office. Multiple impeachment cases, including that of William Blount, as well as 20th-century federal judges also support the conclusion that the Senate can impeach an official no longer in office. As the Congressional Research Service reports: “The principal precedent is the 1876 impeachment of Secretary of War William Belknap. After receiving allegations that Secretary Belknap had received payments in return for appointing an individual to maintain a trading post in Indian territory, the House authorized a committee impeachment investigation. … and though aware that Secretary Belknap had resigned hours before, nevertheless recommended that he be impeached.”
The impeachment managers should make the legal case succinctly (meaning an hour, at most), using conservative scholars. Make certain the public know this argument is not only wrong but also a laughable excuse to avoid impeachment.
Finally, impeachment managers — without attacking specific senators (they know who they are!) — should make clear this is the only opportunity for the Senate to definitively reject sedition and the violence that ensued. Even senators who made the preposterous arguments to object to the electoral college votes must reject the former president’s incitement and his refusal to come to the aid of the besieged Capitol. The Senate can dispense justice or ratify Trump’s conduct. It is that simple.
With brevity, video evidence and unequivocal dismissal of the flimsy constitutional argument, House managers will have the greatest chance of collecting the largest number of Senate votes and convincing the public that acquittal is a cowardly endorsement of Trump’s seditious conduct.