In the brief, the House’s nine impeachment managers made an impassioned case that Trump was “singularly responsible” for the mayhem, accusing him of “a betrayal of historic proportions.” They argued 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 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 passages 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 re-elected,’ ” the House Democrats wrote, adding: “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.’ ”
“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense,” they wrote, “it is hard to imagine what would be.”
Hours later, Trump’s new defense attorneys filed a 14-page response to the House article of impeachment, denying that Trump incited the crowd at his Jan. 6 rally to storm the Capitol and “engage in destructive behavior.”
While the former president’s attorneys stopped short of embracing his baseless claims that the election was rigged, they defended his right to argue that massive fraud led to his defeat, a false claim echoed by his supporters as they ransacked the Capitol that day.
Democrats drew a direct line between Trump’s rhetoric and the violence. But Trump’s defense team argued that free-speech protections allowed him to make such allegations without penalty.
“The 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,” the brief states.
“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false,” his attorneys added.
The twin filings offer a preview of how the two sides will present their cases when the Senate trial begins Feb. 9. A majority of GOP senators have signaled their plans to acquit Trump. But House Democrats made clear that they intend to force Republicans to contemplate the terror of the Jan. 6 attack, which resulted in the deaths of one Capitol Police officer and four rioters. In addition, two officers, one with the D.C. police, have since died by suicide.
The impeachment managers argued that Trump laid the groundwork for the insurrection in the preceding weeks with his relentless attacks on the integrity of the election and attempts to subvert the results through pressure on state officials.
Trump’s defense team rejected that claim, addressing an episode cited in the House impeachment article in which he called Georgia Secretary of State Brad Raffensperger (R) early this year to discuss that state’s election results.
They argued that Trump’s exhortation during the Jan. 2 phone call that Raffensperger “find” the votes to overturn Joe Biden’s victory was simply an expression of the president’s belief that a careful examination of the evidence would produce a more accurate vote count that favored Trump.
David Schoen, one of Trump’s new attorneys, told The Washington Post in interviews earlier this week that he did not plan to put forward a defense based on allegations of election fraud, a strategy Trump was said to be pushing his previous legal team to embrace.
But on Tuesday, Democrats seized on the defense filing’s references to Trump’s fraud claims, with Senate Majority Leader Charles E. Schumer (D-N.Y.) saying that by citing baseless allegations Trump’s attorneys proved “they have no argument against the charges.”
Senate Minority Leader Mitch McConnell (R-Ky.), meanwhile, said simply that he plans to listen to the arguments next week. Although McConnell voted last week with most Republicans on an unsuccessful motion to declare an impeachment of a former president unconstitutional, on Tuesday he said, “I think that is an interesting constitutional question.”
In their brief, the Democratic managers cited Trump’s behavior during the insurrection, when he initially did nothing to quell the rioters. They cited Sen. Ben Sasse (R-Neb.), who said senior White House aides told him Trump was “delighted” at the mayhem he was watching on television.
There is no evidence, the brief added, that Trump called Vice President Mike Pence or any legislative leaders “to check on their safety during the attack.”
In fact, lawmakers and other allies called, texted or tweeted at Trump to implore him to step in and help restore order, the Democrats noted — evidence that they believed Trump was responsible for the violence and had the power to stop it.
In their response, Trump’s attorneys insisted that he never attempted to interfere with the counting of the electoral-college votes in a joint session of Congress that day.
When Trump encouraged the rallygoers to go down to the Capitol and “fight like hell,” the attorneys wrote, it had nothing to do with “the action at the Capitol” but “was clearly about the need to fight for election security in general.”
In fact, as Trump concluded his speech that day, he told the crowd, “We’re going to the Capitol,” adding: “We’re going to try and give them the kind of pride and boldness that they need to take back our country.”
Democrats, for their part, noted in their brief that one call Trump did make to the Capitol during the unrest was intended for a close ally, Sen. Tommy Tuberville (R-Ala.) — not to check on his well-being but to “try to persuade him to delay and further obstruct” the count.
Trump’s attorneys did not dwell on the mayhem itself, whereas the Democratic 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.”’
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 officers 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 B. Raskin (D-Md.), 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. Democrats have said they are eager to focus their attention on President Biden’s agenda, while Republicans are ready to change the subject from Trump’s role in the Jan. 6 riot, which has divided the GOP ranks.
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 attorneys made reference to multiple times in their brief.
“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 examples in which the Senate had tried officials who had already left office — albeit none of them presidents — and a lineup of conservative officials and scholars to make the point that departing or resigning is not 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.”
They quoted Michael McConnell, a former appeals court judge appointed by President George W. Bush: “The key word is ‘all.’ . . . It does not 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.) that sought to declare that the impeachment trial is unconstitutional, because Trump is no longer in office.
Trump’s attorneys and his supporters in the Senate are expected to further drill at the argument that the trial is invalid. Such an argument is expected to be embraced by many GOP senators, who are loath to weigh in on the question of 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 argued that 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 why the Framers wrote a disqualification power into the Constitution.”
Tom Hamburger and Josh Dawsey contributed to this report.