- The Washington Times - Tuesday, February 2, 2021

House Democratic impeachment managers made their case on Tuesday for convicting former President Trump in a Senate trial, saying he incited his supporters over alleged election fraud and then aimed the mob “like a loaded cannon” at the U.S. Capitol just before the deadly riot on Jan. 6.

“His conduct endangered the life of every single member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security,” the nine Democratic managers said in a legal brief. “This is precisely the sort of constitutional offense that warrants disqualification from federal office.”

But Mr. Trump’s lawyers responded that the House impeachment on Jan. 13, and Democrats’ insistence on holding an impeachment trial for Mr. Trump after he left office, are motivated by partisan hatred. Attorneys David Schoen and Bruce Castor Jr., who took control of Mr. Trump’s defense only on Sunday, said the former president didn’t incite the riot and cannot be banned from holding future office because he is a private citizen.

“Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States,” Mr. Trump’s lawyers said.

The competing legal arguments set the stage for Mr. Trump’s second impeachment trial, due to begin next week. His acquittal is viewed as a near certainty, because the Senate’s 50 Democrats would need 17 Republicans to join them in voting to convict Mr. Trump to reach the required two-thirds majority. 

In a test vote last week, 45 out of 50 Senate Republicans indicated that putting a former president on trial is unconstitutional.

The impeachment has divided the GOP, with most Republicans warming to the realization that the former president is still hugely popular with the party’s base. Republican lawmakers such as Rep. Liz Cheney of Wyoming also are facing political consequences for supporting the impeachment, including the prospect of primary opponents in 2022.

It’s not clear whether Democrats will try to call witnesses in the Senate trial — none were called in the House impeachment proceeding. Democrats intend at a minimum to show video of the attack that resulted in the deaths of five people, including a Capitol Police officer.

Sen. Lindsey Graham, South Carolina Republican and a Trump ally, has warned he’ll call FBI officials as witnesses to answer for security lapses, if Democrats demand witnesses.

Evidence also is emerging that some of the agitators at the Capitol had planned the attack for weeks, which could undercut Democrats’ assertion that Mr. Trump’s speech to a crowd of supporters just before the attack provoked them.

As the trial nears, law professor Jonathan Turley of George Washington University law school said the House Democrats’ case is “long on descriptive elements and short on intent elements.”

“The disgraceful riot is already seared into the minds of every American,” Mr. Turley told The Washington Times. “What is missing is key evidence to show an intent to incite the riot, let alone an insurrection.”

Josh Blackman, a professor at South Texas College of Law, said the build-up of Mr. Trump’s actions before Jan. 6 doesn’t match legal precedent for inciting violence. 

“With incitement, you need to focus on what happens right there,” he said.

The House managers say Mr. Trump bears “unmistakable” blame for sending his supporters to the Capitol after he addressed a massive rally near the White House. Mr. Trump had urged supporters for weeks in advance to attend the rally on Jan. 6 because it was the date that Congress was required to count the Electoral College results certifying the victory of President Biden.

“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 Democrats’ brief stated.

Democrats said Mr. Trump must be held accountable for inciting the mob by telling lies that the election was “stolen” from him.

“The only honorable path at that point 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,” the Democrats wrote.

The brief noted that Ms. Cheney, the House Republican Conference chairman, said “none of this would have happened without the president,” while then-Senate Majority Leader Mitch McConnell said “the mob was fed lies” and was “provoked by the president.”

The Democrats begin their case by describing Mr. Trump’s actions starting in mid-November, when, according to the brief, Mr. Trump launched legal challenges to overturn Mr. Biden’s victory.

They said Mr. Trump put “intense pressure” on election officials in battleground states such as Georgia. The repeated legal challenges were “improper and abusive,” Democrats said.

They also argue that Mr. Trump pressured the Justice Department to get involved in the legal challenges, to keep him in the White House.

Mr. Trump shook up his legal team last weekend, parting ways with five lawyers who had been preparing his defense, in a move described as a mutual decision. The former president’s new defense team said he cannot be punished for exercising his First Amendment rights when he repeatedly challenged the results of the presidential election.

“Like all Americans, the 45th President is protected by the First Amendment,” the brief argued. “The Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation.” 

Their legal brief rejects Democrats’ accusation that Mr. Trump made false claims about widespread election fraud.

“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,” the lawyers wrote. 

The president’s attorneys acknowledge that Mr. Trump spoke by phone to Georgia Secretary of State Brad Raffensberger, but they deny that he wrongly pressured the election official to reverse Mr. Biden’s win in the state.

During the recorded call in December, Mr. Trump urged Mr. Raffensberger to “find” more than 11,000 votes so he would be declared the winner in Georgia. Mr. Trump’s lawyers say his accusers are taking the comment out of context.

“President Trump was expressing his opinion that if the evidence was carefully examined one would ‘find that you have many that aren’t even signed and you have many that are forgeries,’” they wrote. “It is denied that President Trump threatened Secretary Raffensperger. It is denied that President Trump acted improperly in that telephone call in any way.”

Besides claiming the Senate lacks jurisdiction over Mr. Trump as a private citizen, the lawyers also take issue with Sen. Patrick Leahy of Vermont presiding at the trial instead of Supreme Court Chief Justice John G. Roberts Jr., as the Constitution requires for the trial of a president who’s still in office. 

They called Mr. Leahy “a partisan member of the Senate with a long history of public remarks adverse to the 45th president.”

In his trial, Mr. Trump’s lawyers will categorically deny that he provoked the attack on the Capitol.

“It is denied that President Trump incited the crowd to engage in destructive behavior,” they wrote. “It is denied that [Mr. Trump’s] phrase ‘if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech. It is denied that President Trump intended to interfere with the counting of Electoral votes.”

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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