[Congressional Record Volume 167, Number 38 (Monday, March 1, 2021)]
[Senate]
[Pages S924-S950]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPEACHMENT
Mr. GRASSLEY. Mr. President, just barely a year ago, I was here
making a similar statement. Impeachment is one of the most solemn
matters to come before the Senate, but I worry that it's also becoming
a common occurrence.
Before getting into the merits of this impeachment, it is important
to reiterate that January 6 was a sad and tragic day for America. I
hope we can all agree about that.
What happened here at the Capitol was completely inexcusable. It was
not a demonstration of any of our protected, inalienable rights. It was
a direct, violent attack on our seat of government. Those who plowed
over police barricades, assaulted law enforcement, and desecrated our
monument to representative democracy flouted the rule of law and
disgraced our Nation. Six people, including two U.S. Capitol Police
officers, now lie dead in the wake of this assault. The perpetrators
must be brought to justice, and I am glad to see that many such cases
are progressing around the country.
While the ultimate responsibility for this attack rests upon the
shoulders of those who unlawfully entered the Capitol, everyone
involved must take responsibility for their destructive actions that
day, including the former President. As the leader of the Nation, all
Presidents bear some responsibility for the actions that they inspire--
good or bad. Undoubtedly, then-President Trump displayed poor
leadership in his words and actions. I do not defend those actions and
my vote should not be read as a defense of those actions.
I am a member of a Court of Impeachment. My job is to vote on the
case brought by the House managers. I took an oath to render judgment
on the Article of Impeachment sent to the Senate by the House of
Representatives. We are confined to considering only the Articles
charged and the facts presented.
First and foremost, I don't think this impeachment is proper under
the Constitution. This is the first time the Senate has tried a former
President. Whether or not it can do so is a difficult question. The
Constitution doesn't say in black and white ``Yes, the Senate can try a
former President'' or ``No, it can't.'' In contrast, many State
constitutions at the time of the founding specified that their
legislatures could, so it's notable that our Federal charter did not.
In order to answer this question it's therefore necessary to look at
the text, structure, and history of the Constitution. That's what I
have done. In the end, I do not think we have the ability to try a
former President.
I start always with the Constitution, which gives Congress the power
of impeachment. As I mentioned, impeachment was a feature in many State
constitutions at the time, and it came from a power enjoyed by the
English Parliament.
Impeachment in England was a powerful tool whereby Parliament could
[[Page S925]]
hold individuals accountable for actions against the government without
having to rely on the King to enforce it. It applied not just to
sitting government officials but also to former government officials
and even to private individuals. It was not simply a way to remove
government officials but a general method of punishing the enemies of
Parliament, including with fines, jail time, or even death.
This is not the system established by our Constitution. Our
Constitution restricts the power of impeachment in two important ways.
First, it says that Congress can't just impeach anyone: only the
President, the Vice President, and ``all civil Officers of the United
States'' can be impeached. It then restricts the penalties for
impeachment to removal from office and disqualification.
A former President is not in any of those three categories. He is not
the President. In fact, the Constitution also specifies that when the
President is impeached, the Chief Justice of the Supreme Court shall
preside over the trial. Chief Justice Roberts has not presided over
this trial, thus making it clear that it is not the trial of a
President. He is obviously not the Vice President. He is not a civil
officer of the United States.
Because he does not fall into any of these categories, I don't think
that this trial was appropriate.
Moving beyond the text of the Constitution, the history of the Senate
confirms this. The U.S. Senate has never convicted a former official in
an impeachment. The Senate has tried three individuals who were former
officers--William Blount a former Senator in 1798; William Belknap a
former Secretary of War, in 1876; and Robert Archibald an incumbent
Commerce Court judge, in 1912, tried as well for conduct while a
district judge). Belknap is the only executive branch member tried
after leaving office. None was convicted for his prior conduct,
Archibald was convicted on counts relating to his incumbent judicial
service on the Commerce Court. In all three cases, the jurisdictional
question loomed large at the trial and was cited as an important
argument justifying the acquittals. In other words, Senate practice is
consistent: It has never convicted a former official in an impeachment.
Between the text of the Constitution and the consistent practice of
the Senate, I'm convinced that this is not an appropriate use of our
power. While I realize there are arguments on the other side from
learned scholars, to me, they do not overcome these problems of text
and history.
That's why I voted twice to deal with this impeachment on
jurisdictional grounds. But my position didn't prevail, with the
majority Democrats voting in lockstep to proceed, and we went to trial.
As I've said, even though I think this is inappropriate, I kept an open
mind during the process, and I listened to both sides as they presented
their evidence.
The House managers tried to prove that President Trump incited an
insurrection. That is a difficult argument to make. There were many
other Articles over which they could have impeached President Trump,
but this is what the House of Representatives chose. They didn't meet
their burden.
Before getting to the merits of the charge, I need to point out that
this impeachment trial has not aligned with principles of due process
of law. Other impeachments have involved significant fact-finding in
the House, where proper legal formalities are followed, witnesses are
heard from and cross-examined, and hard evidence is reviewed. Here
there were no hearings in the House. The evidence presented was mostly
video montages and news reports. We even had the unusual spectacle of
voting to call witnesses for the first time as the trial was ending
only to immediately reverse course and call none. Given the seriousness
of the situation, I think we should expect better when the House
exercises its constitutional duty of impeachment.
This issue involves complicated legal questions. In our legal system,
though, it is very difficult for speech to rise to the level of
incitement. ``Incitement'' is a legal term of art. Usually it takes
place in the context of incitement to violence. Incitement, in our
legal system, doesn't mean ``encouraging'' violence or ``advocating''
violence or even ``espousing'' violence. It means intentionally causing
likely violence. Because the Article of Impeachment uses the word
``incitement,'' I need to evaluate President Trump's actions under the
rubrics of the law of incitement, which were set out in the Supreme
Court case of Brandenburg v. Ohio. In that case the Court held that
incitement required speech that, first, encourages ``imminent lawless
action'' and, second, ``is likely to incite or produce such action.''
In other words, in order to succeed, the House managers must have shown
that President Trump's speech was intended to direct the crowd to
assault the Capitol and that his language was also likely to have that
effect.
As I said before, what happened on January 6 was tragic. We can't let
it happen again. But the House managers have not sufficiently
demonstrated that President Trump's speech incited it. While I will
have more to say about President Trump's conduct, the fact is that he
said this: ``I know that everyone here will soon be marching over to
the Capitol building to peacefully and patriotically make your voices
heard.'' That speech is not an incitement to immanent lawless action as
established in the case law. I wish the crowd would have listened to
him.
Just because President Trump did not meet the definition of inciting
insurrection does not mean that I think he behaved well.
To be clear, I wanted President Trump to win in November. I gave over
30 speeches on his behalf in Iowa the week before the election. He,
like any politician, is entitled to seek redress in the courts to
resolve election disputes. President Trump did just that, and there's
nothing wrong with it. I supported the exercise of this right in the
hopes that allowing the election challenge process to play out would
remove all doubt about the outcome. The reality is, he lost. He brought
over 60 lawsuits and lost all but 1 of them. He was not able to
challenge enough votes to overcome President Biden's significant
margins in key States. I wish it would have stopped there.
It didn't. President Trump continued to argue that the election had
been stolen even though the courts didn't back up his claims. He
belittled and harassed elected officials across the country to get his
way. He encouraged his own, loyal Vice President, Mike Pence, to take
extraordinary and unconstitutional actions during the electoral college
count. My vote in this impeachment does nothing to excuse or justify
those actions. There's no doubt in my mind that President Trump's
language was extreme, aggressive, and irresponsible.
Unfortunately, others share the blame in polluting our political
discourse with inflammatory and divisive language. As President Trump's
attorneys showed, whatever we heard from President Trump, we had been
hearing from Democrats for years. National Democrats, up to and
including President Biden and Vice President Harris, have become
regular purveyors of speech dismissing and even condoning violence.
It's not surprising that when they talk about taking the ``fight'' to
``the streets'' organizations like antifa actually take to the streets
of our cities with shields and bats and fists, destroying lives and
livelihoods.
Yes, I think President Trump should have accepted President Biden's
victory when it became clear he won. I think Secretary Clinton should
have done the same thing in 2016. But as recently as 2019, she
questioned the legitimacy of Trump's election, saying ``[Trump] knows
he's an illegitimate president. I believe he understands that the many
varying tactics they used, from voter suppression and voter purging to
hacking to the false stories . . . there were just a bunch of different
reasons why the election turned out like it did.''
If there's one lesson I hope we all learn from not only last year but
the last few years, it's that we all need to tone down the rhetoric.
Whether it's the destructive riots we saw last summer or the assault on
the Capitol, too many people think that politics really is just war by
another name. To far too many people, our democracy isn't free people
coming together to make life better for our communities. It's a street
fight.
We don't need to agree on everything. In fact, part of what makes our
democracy great is that we don't agree on everything. But we do need to
resolve these differences with debate and
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with elections, not with violence. Whether the violence comes from the
left or the right, it's wrong. The same goes for speech that claims to
define enemies by political views or affiliations.
We're all Americans, always trying to form a more perfect union. We
have more in common than what divides us. It's high time those of us
who have been elected to serve lead by example. We can take the high
road. We can tone down the rhetoric. We can be respectful even when we
disagree strongly. If we don't, we'll be betraying the trust that the
American people have placed in us, and we'll endanger the democracy and
the freedom that so many of us have worked to preserve.
These are difficult issues I have considered over the past week, but
in the end, I am confident in what I think is the correct position. We
do not have the authority to try a private citizen like former
President Trump. Even if we did, he should have been accorded the
protections of due process of law in his trial. And even if we assume
he has been, the House managers still did not prove that he committed
incitement to insurrection, the specific crime of which he stands
accused. This does not excuse President Trump's conduct on and around
January 6 of this year, it satisfies my oath as a U.S. Senator in this
Court of Impeachment. I therefore voted to acquit.
Mr. REED. Mr. President, I ask unanimous consent to have my opinion
memorandum in the impeachment trial of President Donald J. Trump be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Opinion Memorandum of United States Senator John F. Reed in the
Impeachment Trial of President Donald John Trump
I. FINDINGS
On January 13, 2021, the United States House of
Representatives passed House Resolution 24,\1\ ``Impeaching
Donald John Trump, President of the United States, for high
crimes and misdemeanors.''
Based on the evidence in the record, the arguments of the
House Impeachment Managers, and the arguments of President's
Counsel, I conclude as follows: Mr. Trump has violated his
oath to take care that the laws be faithfully executed and
has acted in a manner that is fundamentally incompatible with
the constitutional order. The House Impeachment Managers have
proven that Mr. Trump's incitement of insurrection amounts to
the constitutional standard of ``high Crimes and
Misdemeanors'' for which the remedy of conviction and
disqualification is warranted.
II. THE CONSTITUTIONAL GROUNDS FOR IMPEACHMENT
``The Senate shall have the sole Power to try all
Impeachments.'' \2\ With these few words, the Framers of the
Constitution entrusted the Senate with the most awesome power
within a democratic society: whether to remove an impeached
president from office.
A. High Crimes and Misdemeanors
The Constitution states, ``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.'' \3\
``Treason'' and ``Bribery'' are foundational impeachable
offenses. No more heinous example of an offense against the
constitutional order exists than betrayal of the nation to an
enemy or betrayal of duty for personal enrichment. A
President commits treason when he levies war against the
United States or gives comfort or aid to its enemies.\4\ As
the House Judiciary Committee explained, a President engages
in impeachable bribery when he ``offers, solicits, or accepts
something of personal value to influence his own official
actions.'' \5\
In interpreting ``high Crimes and Misdemeanors,'' we must
not only look to the Federalist Papers and the records of the
Constitutional Convention, but also to the contemporary and
foundational writings on Impeachment available to the
Framers.
Sir William Blackstone, whose influential Commentaries on
the Laws of England were published from 1765-1770, discussed
a classification of crimes he termed ``public wrongs, or
crimes and misdemeanors'' that he defined as breaches of the
public duty an individual owed to their entire community.\6\
Blackstone viewed treason, murder, and robbery as ``public
wrongs,'' not only because they cause injury to individuals
but also because they ``strike at the very being of society.
'' \7\
Richard Wooddeson, a legal scholar who began giving
lectures on English law in 1777, defined impeachable offenses
as misdeeds that fail to clearly fall under the jurisdiction
of ordinary tribunals. These wrongs were ``abuse[s] of high
offices of trust'' that damaged the commonwealth.\8\
Much the same as Blackstone and Wooddeson, Alexander
Hamilton included the dual components of abuse of public
trust and national harm in his definition of impeachable
crimes and misdemeanors. In Federalist Paper No. 65, Hamilton
defined an impeachable offense as ``those offenses which
proceed from the misconduct of public men, or in other words
from the abuse or violation of some public trust. They are of
a nature which may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.'' \9\
B. The Constitutional Debates
Adding impressive support to these consistent views of the
meaning of the constitutional term, ``high Crimes and
Misdemeanors,'' is the history of the deliberations at the
Constitutional Convention.
The convention delegates considered limiting Impeachment to
treason and bribery. However, they concluded that these
enumerated offenses alone could not anticipate every manner
of profound misconduct that a future president might engage
in.\10\ George Mason, a delegate from Virginia, declared that
``high crimes and misdemeanors'' would be an apt way to
further capture ``great and dangerous offences'' or
``[a]ttempts to subvert the Constitution.'' \11\
This wording would also set the necessarily high threshold
for Impeachment that would be proportional to the severe
punishment of removing an elected official and
disqualification from holding future public office. Further
insight is provided by James Iredell, a delegate to the North
Carolina Convention that ratified the Constitution, who later
served as a Justice of the United States Supreme Court.
During the Convention debates, Iredell stated:
The power of impeachment is given by this Constitution, to
bring great offenders to punishment . . . This power is
lodged in those who represent the great body of the people,
because the occasion for its exercise will arise from acts of
great injury to the community, and the objects of it may be
such as cannot be easily reached by an ordinary tribunal.\12\
Iredell's understanding sustains the view that an
impeachable offense must cause ``great injury to the
community.'' Private wrongdoing, without a significant,
adverse effect upon the nation, cannot constitute an
impeachable offense. James Wilson, a delegate to the Federal
Constitutional Convention and, like Iredell, later a Supreme
Court Justice, wrote that Impeachments are ``proceedings of a
political nature . . . confined to political characters, to
political crimes and misdemeanors, and to political
punishments.'' \13\
Later commentators expressed similar views. In 1833,
Justice Joseph Story quoted favorably from the scholarship of
William Rawle, who concluded that the ``legitimate causes of
impeachment . . . can have reference only to public
character, and official duty . . . In general, those
offenses, which may be committed equally by a private person,
as a public officer, are not the subject of impeachment.''
\14\
This line of reasoning is buttressed by the careful and
thoughtful work of the House of Representatives during the
Watergate proceedings. The Democratic staff of the House
Judiciary Committee concluded that, ``[b]ecause impeachment
of a President is a grave step for the nation, it is to be
predicated only upon conduct seriously incompatible with
either the constitutional form and principles of our
government or the proper performance of constitutional duties
of the presidential office.'' \15\
The deliberations at the Constitutional Convention also
demonstrate a conscious movement to narrow the terminology as
a means of raising the threshold for the Impeachment process
to require an offense against the State.
Early in the debate on the issue of presidential
Impeachment in July of 1787, it was suggested that
Impeachment and removal could be founded on a showing of
``malpractice,'' ``neglect of duty,'' or ``corruption.'' \16\
By September of 1787, the issue of presidential Impeachment
had been referred to the Committee of Eleven, which was
created to resolve the most contentious issues.
The Committee of Eleven considered whether the grounds for
Impeachment should be ``treason or bribery.'' \17\ This was
significantly more restricted than the amorphous standard of
``malpractice,'' too restricted, in fact, for some delegates.
George Mason objected and suggested that
``maladministration'' be added to ``treason and bribery.''
\18\ James Madison opposed this suggestion as being
``equivalent to a tenure during pleasure of the Senate.''
\19\ Mason responded by further refining his suggestion and
offered the term ``other high crimes and misdemeanors against
the State.'' \20\ The Mason language was a clear reference to
the English legal history of Impeachment. Mason's proposal
explicitly narrowed these offenses to those ``against the
State.'' The Convention itself further clarified the standard
by replacing ``State'' with the ``United States.'' \21\
At the conclusion of the substantive deliberations on the
constitutional standard of Impeachment, it was obvious that
only serious offenses against the governmental system would
justify Impeachment and subsequent removal from office.
However, the Committee of Style applied the final stylistic
touches to the Constitution. This Committee had no authority
to alter the meaning of the carefully debated language and
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could only impose a stylistic consistency through, among
other things, the elimination of redundancy. In its zeal to
streamline the text, the words ``against the United States''
were eliminated as unnecessary to the meaning of the
passage.\22\
The weight of both authoritative commentary and the history
of the Constitutional Convention combines to provide
convincing proof that the Impeachment process was reserved
for serious breaches of the constitutional order that
threaten the country in a direct and immediate manner.
C. An Impeachable Offense is Not Limited to Criminal
Liability or a Defined Offense
Article I, Section 3 of the United States Constitution
provides that ``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: but the Party convicted
shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.'' \23\ As
Delegate James Wilson wrote, ``impeachments, and offenses and
offenders impeachable [do not come] within the sphere of
ordinary jurisprudence. They are founded on different
principles, are governed by different maxims, and are
directed to different objects: for this reason, the trial and
punishment of an offense on an impeachment, is no bar to a
trial and punishment of the same offence at common law.''
\24\ The independence of the Impeachment process from the
prosecution of crimes underscores the function of Impeachment
as a means to remove a president from office, not only
because of criminal behavior, but because the president poses
a threat to the constitutional order. Criminal behavior is
not irrelevant to an Impeachment, but it only becomes
decisive if that behavior imperils the balance of powers
established in the Constitution.
The assertion that an impeachable offense must be
predicated on a criminal act goes against the well-
established consensus of the legal community. For example,
Mr. Trump's former Attorney General, William Barr, wrote in a
2018 memo to the Department of Justice (DOJ) when he was
still in private practice, that the President ``is answerable
for any abuses of discretion and is ultimately subject to the
judgment of Congress through the impeachment process [which]
means that the president is not the judge in his own cause.''
\25\ As Mr. Barr makes clear, Impeachment does not need to be
based on a crime.
Furthermore, any assertion that an impeachable offense must
involve the violation of an ``already known or established''
law, even if not criminal, is not supported by the
constitutional record. In advocating for the inclusion of
Impeachment at the Constitutional Convention, James Madison
made the case that the country must be protected against any
number of abuses that a president could engage in and which
might cause permanent damage to the country. Madison wrote
that:
[It was] indispensable that some provision should be made
for defending the Community [against] the incapacity,
negligence or perfidy of the chief Magistrate. The limitation
of the period of his service, was not a sufficient security[.
. .] He might pervert his administration into a scheme of
peculation or oppression. He might betray his trust to
foreign powers.\26\
Confining Impeachment to criminal or even codified offenses
goes against the mainstream consensus on the meaning of
``high Crimes and Misdemeanors'' and would fail to capture
the universe of harms to the constitutional order in which a
President could engage.
D. Conclusion
Authoritative commentary on, together with the structure
of, the Constitution makes it clear that the term, ``other
high Crimes and Misdemeanors,'' encompasses conduct that
involves the president in the impermissible exercise of the
powers of his office to upset the constitutional order.
Moreover, since the essence of Impeachment is removal from
office, rather than punishment for offenses, there is a
strong inference that the improper conduct must represent a
continuing threat to the American people and the
Constitution.
IV. STANDARD OF PROOF
In an Impeachment trial, each Senator has the obligation to
establish the burden of proof he or she deems proper.\27\ The
Founding Fathers believed maximum discretion was critical for
Senators confronting the gravest of constitutional
choices.\28\ Differentiating Impeachment from criminal
trials, Alexander Hamilton argued, in Federalist Paper No.
65, that Impeachments ``can never be tied down by such strict
rules . . . as in common cases serve to limit the discretion
of courts in favor of personal security.'' \29\ In this
regard, Hamilton further distinguished Impeachment
proceedings from a criminal trial by stressing that an
impeached official would be subject to the established rules
of criminal prosecution after Impeachment.\30\
However, what exact constitutional standard should be used
remains debatable. Practical concerns related to utilizing
the Impeachment power should be considered when determining
the standard of proof required. Too low of a standard may
lead to removal, even if significant doubts exist. A ``. . .
high `criminal' standard of proof could mean, in practice,
that a man could remain president whom every member of the
Senate believed to be guilty of corruption, just because his
guilt was not shown `beyond a reasonable doubt.' '' \31\
When uncertain about the standard of proof to apply, it is
worth reviewing the writings of eminent scholars. In doing
so, I have found a closer approximation to what the standard
should be in many Impeachment trials as compared to those
used in general legal practice: `` `[o]verwhelming
preponderance of the evidence' . . .'' \32\ Yet, I believe
that the severity of removing a president of the United
States warrants an even higher bar. As such, a definition
slightly modified, but modeled on that proposed standard, is
more applicable: overwhelmingly clear and convincing
evidence. This standard more closely comports with historical
analysis of the Founders' desire to separate criminal law and
Impeachment and the arguments made by scholars, while
reflecting the serious constitutional harms alleged in the
Article of Impeachment before the Senate.
V. CONSTITUTIONALITY OF IMPEACHMENT TRIAL
The President's Counsel has argued that an Impeachment
trial conducted after a president leaves office is
unconstitutional. Specifically, they write, in their trial
brief, ``It is denied that the quoted provision [Article I,
Section 4] currently applies to the 45th President of the
United States since he is no longer `President'.'' \33\ The
President's Counsel hinge their argument on the wording of
Article II, Section 4, which 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.''
The President's Counsel argue that since Mr. Trump is no
longer the president,
``[T]he clause `shall be removed from Office on Impeachment
for . . .' is impossible for the Senate to accomplish, and
thus the current proceeding before the Senate is void ab
initio as a legal nullity that runs patently contrary to the
plain language of the Constitution . . . Since removal from
office by the Senate of the President is a condition
precedent which must occur before, and jointly with,
`disqualification' to hold future office, the fact that the
Senate presently is unable to remove from office the 45th
President whose term has expired, means that Averment 1 is
therefore irrelevant to any matter before the Senate.'' \34\
Such logic ignores the historical context in which the
Impeachment power was drafted, willfully misinterprets the
language of the Constitution, rejects the precedent set by
previous Senates, and promotes the dangerous concept of a
``January Exception.'' \35\
Impeachment was not a revolutionary concept at the time the
U.S. Constitution was drafted. The concept had long been part
of English political custom, which framed much of the
Founder's understanding of government.\36\ Indeed, Alexander
Hamilton explicitly stated in Federalist No. 65 that the
Impeachment power was borrowed from English political
history.\37\ Thus, we can understand the bounds of the
Impeachment power from precedents set in English political
history. Two examples from the 18th century are illustrative
of the impeachability of former officials. First, ``[i]n
1725, former Lord Chancellor Macclesfield was impeached and
convicted for acts of bribery committed during his tenure in
office.'' \38\ Second, at the time of the Philadelphia
Convention, Parliament was preparing to conduct an
Impeachment trial against Warren Hastings, the former
Governor General of Bengal. These proceedings commenced after
Hastings had retired from his office. ``The Framers were
acutely aware of the Hastings proceeding, with George Mason
raising it as an example during debate on the Impeachment
clauses.'' \39\ If the Framers had misgivings about
Impeachment of former officials, a concept that would have
been on the public mind given Mr. Hastings' impending
Impeachment trial, surely they would have clarified the
wording of the Impeachment power in the U.S. Constitution.
The practice of impeaching former officers was also common
in the early state governments. ``Between 1776 and 1787, 10
of the newly independent states adopted constitutions that
included impeachment provisions. Five specifically permitted
late Impeachment; no state explicitly forbade it.'' \40\
Moreover, some state constitutions only allowed the
Impeachment of former officials, meaning that future
disqualification from office was central to the very purpose
of Impeachment.\41\ For example, Thomas Jefferson underwent
an Impeachment inquiry in 1781 after his tenure as governor
ended.\42\ What purpose could such a late inquiry have except
to attempt to disqualify a former official from holding
office again in the future? The influence of the early state
constitutions on the drafting of the U.S. Constitution is
widely accepted. This influence no doubt extended to the
Framer's understanding of the Impeachment power as including
former officials.\43\
Indeed, the language of the U.S. Constitution proves this
out. Article I, Section 3, Clause 6 states, ``The Senate
shall have the sole Power to try all Impeachments.'' That is,
the Senate has the power to conduct a trial for any
Impeachment commenced by the House of Representatives without
qualification regarding its timing. The House impeached Mr.
Trump, and it is now in the constitutional power of the
Senate to conduct an Impeachment trial. Article I further
outlines two possible penalties in any Impeachment trial:
removal and disqualification.
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The Senate cannot exceed these penalties, nor are these
penalties necessarily linked by the language of the text. The
Senate has the power to remove a president without also
disqualifying him or her from future office. Likewise, legal
scholars assert that disqualification from office need not
follow removal from office.\44\ Such a reading would neuter
the ability of the Senate to disqualify officials from future
office upon their resignation. Hence, an official accused of
crimes against the political order could simply resign to
avoid punishment and potentially retake office in the future.
The Framers understood that the power of a demagogic
president extends beyond his tenure of office. The
disqualification component of the Impeachment power is the
constitutional method for addressing this dangerous
potentiality, for it establishes ``a perpetual ostracism from
the esteem and confidence, and honors and emoluments of his
country.'' \45\
In accordance with English political history, the early
state constitutions, and the clear language of the U.S.
Constitution, the Senate has repeatedly asserted its right to
conduct an Impeachment trial of former government officials.
The first Impeachment trial concerned Senator William Blount
of Tennessee on the charge of conspiracy. After the Senate
expelled Blount from the body in July of 1797, the House
brought five articles of Impeachment against the former
senator in January of 1798 with the intention of
disqualifying him from holding office in the future.\46\ Most
scholars agree that the Senate dismissed the case on the
grounds that the Impeachment power does not extend to Members
of Congress.\47\ The Senate did not, however, dismiss the
case on the basis that Blount was a former official.\48\ The
Senate once again asserted its right to conduct an
Impeachment trial of a former official in the 1876 case of
ex-Secretary of War William Belknap. The House voted to
impeach Belknap after he resigned. The Senate then debated
the constitutionality of late impeachability before asserting
in a 37-29 vote that it had the power to try an ex-
officer.\49\ Though Belknap was not ultimately convicted, the
Senate had decided that it had the power to convict and
disqualify an ex-official. Congress acted once more in the
1926 case of federal judge George English. The House of
Representatives chose not to further pursue Impeachment after
English's resignation, but the House Managers declared ``the
resignation of Judge English in no way affects the right of
the Senate, sitting as a court of impeachment, to hear and
determine [the case].'' \50\ Several Senators similarly
declared the jurisdiction of the Senate in the case of Judge
English.\51\ As these cases demonstrate, the Senate has
repeatedly declared its late-Impeachment powers, though it
has rarely chosen to purse Impeachment.\52\
Finally, the denial of late impeachability promotes the
dangerous and unconstitutional idea of a ``January
Exception.'' One of the central concerns of the Framers was
the diffusion of power across branches in a system of checks
and balances to prevent any one branch, but particularly the
executive, from gaining too much power. Impeachment is the
last line of defense created to hold officials accountable
for their abuse of those powers. Hence the time between
election and inauguration is not a consequence-free period
for an outgoing president. A president who commits an
impeachable offense on the night before his term ends is
still accountable for those actions when he leaves the Oval
Office. After his term as president, John Quincy Adams
proclaimed, ``I hold myself, so long as I have the breath of
life in my body, amendable to impeachment by [the] House for
everything I did during the time I held any public office.''
\53\ The Framers of the Constitution did not intend to grant
Mr. Trump a January reprieve from accountability. He must be
held accountable for his actions during the last weeks of his
presidency.
VI. DUE PROCESS
The President's Counsel assert that the Impeachment inquiry
is defective because of a lack of due process protections for
Mr. Trump. However, the Constitution does not provide any
guidance about what procedures are proscribed in an
Impeachment trial. Article II, Section 3 states, ``The Senate
shall have the sole power to try all Impeachments.'' \54\
Alexander Hamilton provides context to this in Federalist
Paper No. 65, saying that Impeachments ``can never be tied
down by such strict rules . . . as in common cases serve to
limit the discretion of courts in favor of personal
security.'' \55\
Specifically, President's Counsel asserts that the Speaker
of the House purposefully held onto the Article of
Impeachment, passed by the House of Representatives, in order
to ensure that Mr. Trump's term would end before a Senate
trial commenced. However, at the time H. Res. 24 passed, the
Senate was in recess and not scheduled to return until
January 19th. The Senate Minority Leader urged the Senate
Majority Leader to bring the Senate back into session
immediately in order to receive the Article of Impeachment.
However, the Senate Majority Leader rejected this request,
meaning that even if the House of Representatives had tried
to send the Article to the Senate immediately after passage,
it would not have been considered until the Senate was back
in session.\56\
President's Counsel also assert that the House of
Representatives did not provide proper due process because it
did not hold hearings on the Article of Impeachment. Manager
Lieu analogized the present facts to a case where crimes are
committed in plain view, and prosecutors do not have to spend
a prolonged time investigating before pressing charges.\57\
In this case, the events in question--the ``Save America''
rally, the Electoral Certification, and the ensuing
insurrection--were widely broadcast on television and in news
publications. Those who took part in the attack also
documented their participation over social media including on
Twitter, Instagram, and YouTube.\58\ In the aftermath of the
insurrection, participants were arrested and indicted for
their unlawful and violent actions, and their charging
documents were available to the public.\59\
In addition, President's Counsel, throughout this case, has
conflated the requirements of an Impeachment proceeding with
that of a criminal case, where the Due Process Clause of the
Fifth Amendment applies. These claims are spurious at best.
As constitutional scholar Michael Gerhardt stated in regards
to Mr. Trump first Impeachment, ``First, the [Due Process]
clause does not apply because none of the interests protected
by the due process clause are being denied here--the
sanctions are removal and disqualification but not the
deprivation of life, liberty, or property, which the clause
protects. Second, even if due process applies, it has been
satisfied here: The minimal requirements of due process are
an impartial decision-maker and notice. The president has had
plenty of notice about the impeachment effort, and the
Constitution designates senators as the impartial decision-
makers.'' \60\
``The Supreme Court has explained . . . that due process is
not a `technical conception with a fixed content unrelated to
time, place, and circumstances.' Instead, the concept is
`flexible and calls for such procedural protections as the
particular situation demands.' '' \61\ In an Impeachment, the
obligation of the Senate is to accord the president, as the
accused, the right to conduct his defense fairly, while
respecting the House of Representative's exclusive
constitutional prerogative to bring Articles of Impeachment.
At the core of the Senate's task is the fundamental
understanding that our system of laws recognizes the rights
of defendants and the responsibilities of the prosecution to
prove its case.
Based on the above analysis, I find that there is
overwhelmingly clear and convincing evidence that Mr. Trump
was afforded due process in this Impeachment proceeding.
VII. INCITEMENT OF INSURRECTION
House Resolution 24 alleges that, in the conduct of his
office, Mr. Trump incited an insurrection, in violation of
his constitutional duty to take care that the laws be
faithfully executed, and in subversion of the constitutional
order. I find that there is overwhelmingly clear and
convincing evidence that Mr. Trump committed impeachable
conduct. As I will further explain, Mr. Trump must be
convicted and disqualified from holding office for the
conduct described in H. Res. 24.
A. Legal Standards for Incitement
As explained in Section III, Congress is bound neither by
civil nor criminal law in determining whether an offense
meets the standard of ``high Crimes or Misdemeanors.''
However, existing legal frameworks for ``incitement'' are
helpful for analyzing and putting Mr. Trump's words and
conduct into context.
Black's Law Dictionary defines incitement generally as
``the act or an instance of provoking, urging on, or stirring
up.'' \62\ Specifically in regards to criminal law, Black's
Law Dictionary defines incitement as ``the act of persuading
another person to commit a crime.'' \63\
A group of constitutional law scholars explained that, for
the purposes of Impeachment, a determination of whether a
president's speech or conduct is protected must primarily
take into account whether a president's words are consistent
with the Constitution \64\ and the oath to ``faithfully
execute the office of President of the United States, and . .
. preserve, protect and defend the Constitution of the United
States.'' \65\ For example, if a president said ``I no longer
promise to support and defend the Constitution of the United
States'' or ``I no longer recognize Congress as a co-equal
branch of government,'' these statements would certainly be
inherently antithetical to the constitutional order that the
president swore to uphold. While these statements may be
lawful and protected by the Constitution in another context,
they would certainly be impeachable.
Turning to the definition of ``insurrection'' itself, the
Corpus Juris Secundum defines it as ``the act of rising in
open resistance against established authority or government,
or as any open and active opposition of a number of persons
to the execution of the laws of the United States of so
formidable a character as to deny, for the time being, the
authority of the government, even though not accompanied by
bloodshed and not of sufficient magnitude to render success
probable.'' \66\
Based on these sources, I will examine the following
questions, in order to determine whether Mr. Trump incited
his supporters to commit insurrection,
(1) What was Mr. Trump's pattern of speech or conduct prior
to the January 6th ``Save America'' rally?
(2) Did Mr. Trump foreseeably or recklessly solicit his
supporters to believe his election lies, and know that his
supporters would take action based on these lies?
[[Page S929]]
(3) Did Mr. Trump's speech or conduct drive his supporters
to commit unlawful or violent acts on January 6th?
(4) What steps did Mr. Trump take once the rioters had
breached the Capitol?
B. Leading Up to January 6, 2021, Mr. Trump Propagated a
False Narrative that the Election Had Been Stolen and
Supported Violent Rhetoric
To determine whether Mr. Trump engaged in incitement, it is
instructive to look at a timeline of Mr. Trump's statements,
direct acts, and actions taken at his behest, leading up to
January 6th.
a. Statements and Conduct Regarding Voter Fraud Before the
2020 Election
Even before the November 2020 election, Mr. Trump gave
credence to the idea that mass voter fraud would be
inevitable, and the only way he would lose was if the
election were stolen. For example, in July, Mr. Trump tweeted
``With Universal Mail-In Voting (not Absentee Voting, which
is good), 2020 will be the most INACCURATE & FRAUDULENT
Election in history.'' \67\ At an August rally in Wisconsin,
Trump said ``The only way we're going to lose this election
is if the election is rigged, remember that . . . It's the
only way we're going to lose this election. So we have to be
very careful.'' \68\ In September, he told reporters, from
the White House lawn, ``I'm not sure that it [the election]
can be [honest], I don't know that it can be with this whole
situation, unsolicited ballots, they're unsolicited, millions
being sent to everybody.'' \69\
Before the election took place, Mr. Trump also refused to
say whether he would accept the election results. In a July
interview with Chris Wallace, when asked directly whether he
would accept the results of the election, Trump said ``Look,
you--I have to see. No, I'm not going to just say yes.'' \70\
In September, when asked by a reporter if he would commit to
a peaceful transfer of power, Mr. Trump implied that he would
not, saying ``Get rid of the ballots and you'll have a very
peaceful--there won't be a transfer, frankly. There will be a
continuation.'' In the same month, when asked by a reporter
whether the election results would be legitimate only if he
won, Mr. Trump did not give a direct answer, saying, ``So we
have to be very careful with the ballots. The ballots--that's
a whole big scam.'' \71\
b. Statements and Conduct Regarding Voter Fraud After 2020
Election
Once the 2020 election was over, Mr. Trump made it clear
that he would concede under no circumstances, and continued
his full-court press urging Americans not to accept the
election results. In a statement after Mr. Biden was
projected the winner, Mr. Trump said, ``The simple fact is
this election is far from over . . . Beginning Monday, our
campaign will start prosecuting our case in court to ensure
election laws are fully upheld and the rightful winner is
seated. The American People are entitled to an honest
election: that means counting all legal ballots, and not
counting any illegal ballots. This is the only way to ensure
the public has full confidence in our election.'' \72\
Mr. Trump escalated his attack on the election results by
posting a speech on December 2nd, which he taped from behind
the presidential lectern and characterized as potentially
``the most important speech I've ever made.'' \73\ Over the
course of 46 minutes, Mr. Trump repeated the same baseless
claims of voter fraud, and refused to acknowledge his loss.
Mr. Trump said the nation's election system was ``under
coordinated assault and siege'' and declared that it was
``statistically impossible'' for him to have lost to Mr.
Biden.\74\ His overall claim was that, ``This election is
about great voter fraud, fraud that has never been seen like
this before.'' \75\
The day after Christmas 2020, Mr. Trump sought to escalate
his narrative that there was a mass effort to deprive him of
a second term. He sent out a series of tweets attacking
executive branch agencies, the federal judiciary, and Senate
Republicans, claiming that they had not done enough to
prevent voter fraud. He tweeted that the Supreme Court ``has
been totally incompetent and weak on the massive Election
Fraud that took place.'' He also tweeted that ``The `Justice'
Department and the FBI have done nothing about the 2020
Presidential Election Voter Fraud.'' Furthermore, he leveled
the claim that ``If a Democrat Presidential Candidate had an
Election Rigged & Stolen, with proof of such acts at a level
never seen before, the Democrat Senators would consider it an
act of war, and fight to the death. Mitch & the Republicans
do NOTHING.'' \76\
As late as January 4th, Mr. Trump held a rally before the
Georgia Senate runoff saying, ``When you win in a landslide
and they steal it and it's rigged, it's not acceptable. Not
acceptable.'' The crowd chanted, ``Fight for Trump!'' and Mr.
Trump responded, ``They're not going to take the White House.
We're going to fight like hell.'' \77\
In addition to his dishonest rhetoric on election fraud,
Mr. Trump took concrete steps to bend reality to match what
he wanted. As I will explain in more detail in Section VIII,
Mr. Trump used any means necessary to cajole, intimidate, and
threaten individuals at all levels of government to use their
authority to reject, and in some cases alter, the electoral
votes for Mr. Biden.\78\
It is important to note that Mr. Trump forcefully pushed
these lies, no matter how divorced from reality they became.
In the weeks after the election, it became painstakingly
clear that Mr. Biden was the winner, as states moved to
certify his results. In states where the Trump campaign asked
for election audits, subsequent recounts provided no
compelling evidence that Mr. Trump had won by a
landslide.\79\ He and his allies filed and lost over 60
lawsuits alleging voting irregularities in state and federal
court, including the Supreme Court.\80\ His Attorney General
attested that the Justice Department discovered no voting
fraud ``on a scale that could have effected a different
outcome in the election.'' \81\ Top election officials put
out a statement saying, ``The November 3rd election was the
most secure in American history . . . There is no evidence
that any voting system deleted or lost votes, changed votes,
or was in any way compromised.'' \82\ The day before the
Capitol insurrection, even Vice President Mike Pence told Mr.
Trump that he had a constitutional duty to certify the true
winner of the election, which was Mr. Biden.\83\
Yet, throughout all of this and despite undeniable evidence
to the contrary, Mr. Trump doggedly claimed that he had won
the election, and that his supporters should help vindicate
him. He lied to the American people, and did so knowingly and
deliberately.
c. Mr. Trump Invoked Violent Means to Further His Re-
Election
Leading up to January 6th, Mr. Trump supported--either
tacitly or outright--the use of violent and menacing tactics
by his supporters. For example, in the spring of 2020, Mr.
Trump embraced the backlash against COVID-19 policies to aid
his re-election. Following armed protests over stay-at-home
orders, he tweeted ``LIBERATE MINNESOTA!'', ``LIBERATE
MICHIGAN!'' and ``LIBERATE VIRGINIA, and save your great 2nd
Amendment. It is under siege!'' \84\ During some of the anti-
lockdown protests, armed groups attempted to derail the
legislative proceedings at statehouses in Michigan, Idaho,
and Oregon.\85\ These disruptive and aggressive methods were
in essence a prelude to what happened during the assault on
the Capitol.
This anger boiled over when six men plotted to kidnap
Michigan Governor Gretchen Whitmer because they were angry
about the state's coronavirus policies.\86\ When the Federal
Bureau of Investigation foiled the plot, Mr. Trump added fuel
to the fire, and attacked Governor Whitmer over Twitter. He
tweeted, ``Governor Whitmer of Michigan has done a terrible
job. She locked down her state for everyone, except her
husband's boating activities . . . My Justice Department and
Federal Law Enforcement announced . . . today that they
foiled a dangerous plot against the Governor of Michigan.
Rather than say thank you, she calls me a White Supremacist--
while Biden and Democrats refuse to condemn Antifa,
Anarchists, Looters and Mobs that burn down Democrat run
cities.'' \87\
Furthermore, in November 2020, Mr. Trump embraced a group
of his followers who sought to intimidate supporters of his
political opponent. He posted a video of his supporters in
different cars surrounding a Biden campaign bus in Texas. Mr.
Trump cheered this kind of intimidation, tweeting, ``I LOVE
TEXAS'' and ``In my opinion, these patriots did nothing
wrong.'' \88\ At a rally in Michigan, Mr. Trump even praised
his supporters' actions saying, ``Did you see the way our
people, they were, ya know, protecting this bus . . . because
they're nice . . . They had hundreds of cars. Trump! Trump!
Trump and the American flag.'' \89\
After Mr. Biden was declared the winner, Mr. Trump focused
his ire in the following weeks on changing the election
results in Georgia. Mr. Trump's relentless claims of voter
fraud in Georgia were followed by a wave of death threats
against state election officials. Gabriel Sterling, an
election official in Georgia, pleaded with Mr. Trump to
denounce the threats of violence, clearly articulating the
risks of failing to do so. Sterling said, ``Mr. President, it
looks like you likely lost the state of Georgia. We're
investigating. There's always a possibility, I get it, and
you have the rights to go through the courts. What you don't
have the ability to do--and you need to step up and say
this--is stop inspiring people to commit potential acts of
violence. Someone's going to get hurt. Someone's going to get
shot. Someone's going to get killed. And it's not right.''
\90\
d. Mr. Trump Supported Extremist Groups
Mr. Trump made statements supporting, or failing to condemn
members of extremist groups, many of whom came together to
storm the Capitol on January 6th.
Famously, during the first presidential debate on September
29th, when asked to condemn white supremacist groups, like
the Proud Boys, Trump refused. Instead, he announced, ``Proud
Boys--stand back and stand by.'' \91\ The Proud Boys group
took this as an explicit endorsement of their violent tactics
and ideology.\92\ A known social media account associated
with the Proud Boys made ``Stand back and stand by'' its new
slogan, and Proud Boys leader Joe Biggs likewise posted that
he was ``standing by.'' \93\
Mr. Trump also made statements and used social media to
pander to Q'Anon, a conspiracy movement, including by
retweeting messages from Q'Anon followers on Twitter hundreds
of times before his account was suspended.\94\ When pressed
on his views on Q'Anon, Mr. Trump appeared to defend the
movement. On August 19th, Mr. Trump tacitly endorsed QAnon
at a press conference, saying, ``I don't know much about
the movement, other than I understand they like me very
much. Which I appreciate.'' \95\ In a town
[[Page S930]]
hall on October 15th, Mr. Trump praised Q'Anon members
again, this time saying, ``Let me just--let me just tell
you, what I do hear about it, is they are very strongly
against pedophilia. And I agree with that. I mean, I do
agree with that. And I agree with it very strongly.'' \96\
e. Mr. Trump Organized the January 6th ``Save America''
Rally
In the days leading up to January 6th, Mr. Trump sent out
numerous tweets promoting the ``Save America Rally'' and gave
his supporters specific instructions on when and where to
attend. On December 19th, he tweeted, ``Big protest in D.C.
on January 6th . . . Be there, will be wild!'' \97\ On
December 27, he tweeted ``See you in Washington, DC, on
January 6th. Don't miss it. Information to follow.'' \98\ On
January 1, 2021, he tweeted, ``The BIG Protest Rally in
Washington, D.C. will take place at 11:00 A.M. on January
6th. Locational details to follow. StopTheSteal!'' \99\ The
day before, he posted, ``I will be speaking at the SAVE
AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive
early--doors open at 7AM Eastern. BIG CROWDS!'' \100\
Mr. Trump not only knew, but actively coordinated the
January 6th rally in order to disrupt the congressional
proceedings that day. First, Mr. Trump chose to convene a
rally on the same day as the electoral certification, and
then explicitly urged his supporters to attend what he
predicted would be a ``wild'' and ``historic'' day. Manager
Plaskett underscored that it was only after Mr. Trump chose
that day that the Pro-Trump group, Women for America First,
obtained a permit for what became the ``Save America'' rally
at the Ellipse.\101\ The day after Women for America First
announced the rally, Mr. Trump reposted their invitation and
replied ``I will be there Historic day!'' \102\ Manager
Plaskett stated that the Trump campaign even ``became
directly involved with the planning of the event, including
the speaking line-up and even the music to be played and
brought in the same people who spoke at the second Million
MAGA rally to help.'' \103\ Notably, Vice President Pence's
sister-in-law is on the advisory board of Women for Trump,
which has ties to Women for America First--thus blurring the
lines between the Trump administration and the organizers of
the January 6th rally.\104\
Manager Plaskett also emphasized that Mr. Trump's top
advisors and the Trump communications team were actively
monitoring posts from mainstream websites such as Twitter and
Facebook, as well as pro-Trump message boards on Reddit and
4Chan.\105\ Posters wrote about preparations for the rally in
Washington, D.C. to take their election back, by violent
means if necessary, on these message boards. His supporters
posted hundreds of messages outlining their plans for January
6th. They discussed how to physically breach the Capitol
grounds, which individuals to target once inside, and which
weapons and tactical gear to take with them.\106\
In this section, I outlined Mr. Trump's words and actions
leading up to the attack on the Capitol. I will now move onto
examining whether Mr. Trump foreseeably or recklessly
persuaded his supporters into believing his voter fraud lies
and taking action at his behest to prevent what he considered
a stolen election.
C. Mr. Trump Foreseeably and Recklessly Persuaded His
Supporters That the Election Was Stolen
Mr. Trump spread lies, conspiracy theories, and incendiary
rhetoric before and after the 2020 election. He did so with
the understanding that it would inflame his supporters and
enlist their aid in helping him disrupt the electoral
process. The effect was to foreseeably and recklessly goad
his supporters into action. We know this because there is
evidence that his supporters were buying into his
delegitimizing the election, his encouragement of taking
action to overturn the electoral process, and his support for
violent tactics.
Mr. Trump's promotion of themes such as ``Stop the Count''
and ``Stop the Steal'' served to gin up his supporters.
Manager Swalwell pointed out that Mr. Trump spent ``millions
of dollars to amplify that lie . . . [I]n mid-December,
President Trump announced the release of ads, including ones
entitled `'The Evidence is Overwhelming--FRAUD!'' and ``STOP
THE STEAL.'' He spent $50 million from his legal defense fund
on these ads to stop the steal and amplify his message. They
were released nationally, played in video ads, online
advertising, and targeted text messages.'' \107\
His supporters took these ideas literally--angrily
converging upon vote centers on November 5th to protest the
continued counting of ballots after Election Day.\108\ Trump
supporters formed ``Stop the Steal'' online groups, which
became a hotbed for sharing false claims and misleading
videos about voter fraud. In November and December, his
supporters held ``Stop the Steal'' rallies around the
country. It was widely publicized that, at some of these
events, participants were armed and belligerent. Notably, on
December 12th, they staged the Second Million MAGA March in
Washington, D.C., which resulted in violent clashes between
Proud Boy members and counter protestors.\109\ Mr. Trump
promoted these rallies on his social media, and, in some
instances, heaped praise on his supporters for fighting.\110\
The evidence showed that Mr. Trump's promotion of the
``Save America'' rally succeeded in convincing his supporters
to show up at the time and place he named on January 6th.
Many of Mr. Trump's supporters said that they felt summoned
to Washington, D.C. to take retaliatory action. In a Parler
post before the insurrection, a supporter shared one of Mr.
Trump's tweets and wrote, ``This isn't a joke, this is where
and when we make our stand. #January6th, Washington DC. Be
there, no matter what. Nothing is more important.'' \111\ In
a statement taped on a livestream video taken during the
insurrection, a man is heard saying, ``Our president wants us
here We wait and take orders from our president.'' \112\ In
court papers and interviews given after the insurrection,
pro-Trump rioters said they joined the march because the
president encouraged them to do so.\113\
I find overwhelmingly clear and convincing evidence that
Mr. Trump and his allies foreseeably and recklessly solicited
his supporters to help him overturn the election results--
including most prominently by attending the January 6th rally
to disrupt the Electoral College certification.
D. Mr. Trump's Supporters Committed Unlawful Acts of
Insurrection on January 6th
a. Trump Speaks at the ``Save America'' Rally
After months of fomenting anger over his false claims of
election fraud, Mr. Trump gathered his supporters at the
``Save America'' rally on January 6th. Once there, Mr. Trump
told the crowd ``We're going to walk down to the Capitol
because you'll never take back our country with weakness. You
have to show strength and you have to be strong.'' \114\ This
was a continuation of a pattern of violent rhetoric by Mr.
Trump leading up to the events at the Capitol. For example,
Mr. Trump had previously told followers to ``Fight like
Hell'' at rallies. He repeated this language at the rally at
noon on January 6th stating, ``[W]e fight. We fight like
hell.'' \115\ His supporters got the message. By 12:53pm, a
large group of Trump supporters approached a fenced off area
in front of the Capitol and began to engage with Capitol
police officers, many of whom were armed only with mace and
their side arms.\116\
b. The Insurrection Begins
The crowd pushed past the barricade, knocking down police
officers in the process, in an attempt to get closer to the
building. Within minutes, protestors began swarming other
entrances of the Capitol.\117\ Inside the Capitol, Vice
President Pence presided over the joint session of Congress.
Contrary to the wishes of Mr. Trump, Vice President Pence
began the process of certifying the election results. Outside
the Capitol, the crowd of protestors grew more violent.
``Rioters wearing Trump paraphernalia shoved and punched
Capitol Police officers, gouged their eyes, assaulted them
with pepper spray and projectiles, and denounced them as
`cowards' and `traitors.' '' \118\ Law enforcement officers
were attacked with baseball bats, crutches, hockey sticks,
flag poles, and fire extinguishers.\119\ Some rioters came
armed with handguns, pepper spray, knives, and brass
knuckles.\120\ Congressional staff and reporters were warned
to stay away from windows and doors.\121\
c. Rioters Storm the Capitol
Between 2pm and 2:30pm, rioters broke through multiple
entrances and began pushing deeper into the Capitol, flooding
the Rotunda, Crypt, Statuary Hall, and other locations.\122\
Videos captured by rioters show the crowd, many in Trump
paraphernalia, chanting ``Stop the Steal'' and ``U.S.A.'' as
they breached the Capitol and overpowered security.\123\
Meanwhile, the Joint Session had separated into different
chambers. The Senate was in the midst of a debate regarding
an objection to certifying Arizona's Electoral College
votes.\124\ Secret Service rushed Vice President Pence out of
the Senate chambers and took him and members of his family to
a secure location within the Capitol.\125\ Capitol Police
officer Eugene Goodman led rioters away from the entrance to
the Senate chambers, narrowly avoiding a potentially deadly
encounter between Members of the Senate and rioters.\126\
Senators were then evacuated from the Chamber.\127\
On the other side of the Capitol, the House went into
recess and members were told to lock down and shelter in
place.\128\ By 2:45 pm, members of the Capitol Security Team
were forced to barricade the doors to the Chamber as
insurrectionists attempted to break in. House Members were
instructed to put on gas masks and some attempted to build
makeshift shelters in case the mob broke through the
doors.\129\ Members who were on the ground level were
evacuated through the Speaker's Lobby as Capitol Security
guarded the door with guns.\130\ Ashli Babbitt, an Air Force
veteran, was fatally shot as she and others tried to break
through the barricaded glass door.\131\ Members, reporters,
and staff in the Gallery remained trapped one floor above the
rioters. Videos taken during the events on January 6th show
this group sitting and lying down in the aisles in an attempt
to shelter behind the chairs.\132\ One particularly moving
photo shows Representative Jason Crow (D-CO), a former Army
Ranger, comforting Representative Susan Wild (D-PA) as the
pair sheltered in the Gallery.\133\ Rep. Crow recounted that
he was doing what any friend would do, telling Rep. Wild
``that I was there for her, and that we would get through
it.'' \134\ Another video shows Rep. Lisa Blunt Rochester (D-
DE) praying loudly in the Gallery for safety and peace as she
and other lawmakers, including Rep. Pramila Jayapal (D-WA),
watched Capitol Police officers barricade the door to the
Chamber.\135\
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d. The Rioters Target Vice President Pence and Speaker
Pelosi
As members of Congress moved to secure locations or
sheltered in place, rioters walked the halls carrying
Confederate flags, vandalizing the building, and breaking
into congressional offices, including the office of Speaker
of the House Nancy Pelosi.\136\ One rioter said that he and
other rioters ``kicked in Nancy Pelosi's office door'' and
that ``Crazy Nancy probably would have been torn into little
pieces but she was nowhere to be seen.'' \137\ The use of the
term ``Crazy Nancy'' is significant, for this is Mr. Trump's
nickname for the Speaker of the House. Vice President Mike
Pence was another primary target for the most violent
sections of the mob. ``Once we found out Pence turned on us
and that they had stolen the election, like, officially, the
crowd went crazy,'' said one rioter.\138\ Rioters called for
Pence's death.\139\ Throughout the Capitol, Members and their
staff barricaded themselves in offices, hid under tables,
called loved ones, and prayed for safety.\140\
e. The President Fails to Respond to or Condemn the
Violence at the Capitol
President's Counsel argue that the President did not intend
or anticipate for violence to take place. If that were the
case, one would expect that--as soon as it was clear that the
rioters had begun engaging in unlawful or violent acts--Mr.
Trump would quickly and clearly condemn these actions and
take every action possible to stop further violence.
Arguably, once the lawbreaking began, it was only Mr. Trump
that had the most potent power at that point to get his
supporters to stop. However, instead of acting expeditiously,
it took him more than two hours after the rioters stormed the
Capitol to make a statement. In this time, it is reported
that lawmakers and Trump advisors pleaded with him to call
off the angry mob and denounce the violence.\141\ Mr. Trump
was seemingly unmoved by these pleas for help, and it is even
reported that he was pleased by the actions of his
supporters.\142\ Rather than call off his supporters, it is
reported that Mr. Trump called a Member of the Senate asking
him to raise additional objections to certifying the
Electoral College results.\143\ Not until 4:15pm did Mr.
Trump release a pre-recorded message, telling supporters to
go home. The video statement did not condemn the rioters'
actions at the Capitol.
Mr. Trump's delay in responding to the insurrection is
unsurprising, for many of the rioters thought they were
``answer[ing] the call of my President.'' \144\ In a
livestreamed video from inside the Capitol, one rioter
declared that ``[o]ur president wants us here. . . . We wait
and take orders from our president.'' \145\ Another rioter
claimed that she ``thought I was following my President. He
asked us to fly there, he asked us to be there, so I was
doing what he asked us to do.'' \146\ One supporter, who was
later arrested for his actions on January 6th, stated through
his lawyer that he, ``acted out of the delusional belief that
he was a `patriot' protecting his country . . . He was
responding to the entreaties of the-then commander in
chief, President Trump. . . . The President maintained
that the election had been stolen and it was the duty of
loyal citizens to `stop the steal.' '' \147\ To paraphrase
the House Managers, Mr. Trump sold his followers the big
lie of a stolen election and then provoked those followers
to violent action to ``stop the steal.''
In his late statement on the events at the Capitol, Trump
urged his followers to ``Please support our Capitol Police
and law enforcement stay peaceful.'' Of course, the
insurrection was never peaceful, and the Capitol Police were
treated cruelly by the mob. Over the course of the
insurrection, 140 police officers were injured and one
officer, Brian Sicknick, was killed. Four rioters also died.
Congressional Leadership offices were trashed, the walls of
the Capitol bore the marks of bullets, monuments were
destroyed, windows were smashed and broken in, Members and
staff were terrorized, Senate desks were ransacked, and smoke
hung in the air. Mr. Trump should have pleaded with the crowd
to stand down and leave the Capitol as soon as the
insurrection began. The fact that he waited to address the
rioters, and downplayed the severity of the insurrection to
the point of even praising the patriotism of the rioters, was
not just dereliction of duty. It was malicious disregard for
the lives of Capitol Police, Members of Congress, staff, and
Capitol workers threatened by the mob that he incited.
f. The Capitol is Cleared and the Election Results are
Certified
It took more than four hours after the rioters first
entered the building to secure the Capitol and another three
hours before the Joint Session could resume.\148\
Nevertheless, Joseph R. Biden Jr. was confirmed the winner of
the 2020 election at approximately 4am.\149\ Democracy
prevailed.
E. The First Amendment Is Not a Defense to Mr. Trump's
Incitement of Insurrection
President's Counsel argued at trial that Mr. Trump was
exercising his First Amendment rights in expressing his views
at the ``Save America'' rally, and thus cannot be convicted
in this proceeding. I conclude that there is overwhelmingly
clear and convincing evidence that the First Amendment does
not inoculate him from the current Impeachment charge.
a. The First Amendment Is Not a Bar to Impeachment
As I explained in Section II, the relevant standard in an
Impeachment trial is whether a president committed
impeachable ``high Crimes and Misdemeanors.'' An impeachable
offense need not violate a criminal or other established law.
Indeed, even an action that is lawful or otherwise protected
by the Constitution can still be an impeachable offense.
Rather the appropriate standard in this proceeding is whether
an offense is ``incompatible with either the constitutional
form and principles of our government or the proper
performance of constitutional duties of the presidential
office.'' \150\ In addition, as I explained in Section IV,
there is no defined standard of proof in an Impeachment, and
there are no requirements to adhere to the same standards as
in a criminal prosecution.
As a result, in an Impeachment trial, the Senate is simply
not bound by a determination of whether Mr. Trump is
protected by the First Amendment, nor must the Senate demand
a showing that every element of a criminal charge of
incitement has been met.
b. Mr. Trump's Speech Likely Satisfies the Standard of
Incitement
Although I have concluded that the First Amendment does not
necessarily serve as a shield in this proceeding, I find it
persuasive that the bedrock principle of free speech has a
long history in our country. Therefore, I undertook an
examination of the governing case precedent regarding
incitement. I have concluded that, even if the First
Amendment were to apply in this case, Mr. Trump's overall
course of conduct would satisfy the standard for incitement.
The First Amendment prohibits any law ``abridging the
freedom of speech.'' \151\ However, even at our country's
founding, it is clear that the First Amendment was not
intended to provide absolute protection for every utterance.
Of the fourteen states that ratified the Constitution by
1792, thirteen had laws limiting libelous or blasphemous
speech.\152\ In addition, the Supreme Court has recognized
specific categories of speech that are not protected by the
First Amendment and which the government may regulate because
of their content. These categories are ``obscenity,
defamation, fraud, incitement, fighting words, true threats,
speech integral to criminal conduct, and child pornography.''
\153\
The relevant legal framework for incitement was established
by the U.S. Supreme Court in the 1969 case of Brandenburg v.
Ohio.\154\ In that case, a Ku Klux Klan leader, Clarence
Brandenburg, was convicted after making a speech at a Klan
rally that apparently broke an Ohio law against
``advocat[ing] crime, sabotage, violence, or unlawful methods
of terrorism as a means of accomplishing industrial or
political reform.'' \155\ The Supreme Court overturned
Brandenburg's conviction and struck down the statute on First
Amendment grounds. In doing so, the Court articulated a new
test for when advocating for violence or lawbreaking could be
criminally prosecuted. The Brandenburg test defines
unprotected incitement as speech that is ``directed to
inciting or producing imminent lawless action and is likely
to incite or produce such action.'' \156\
Subsequent cases further clarified the ``imminence''
standard set out in Brandenburg. In the Supreme Court case of
Hess v. Indiana, Gregory Hess was attending an anti-Vietnam
war protest when the police moved a group of protesters from
the street onto the sidewalk.\157\ Hess said, ``We'll take
the [effing] street later'' and was convicted for disorderly
conduct.\158\ The Supreme Court reversed Hess' conviction,
concluding, ``Since the uncontroverted evidence showed that
Hess' statement was not directed to any person or group of
persons, it cannot be said that he was advocating, in the
normal sense, any action. And since there was no evidence, or
rational inference from the import of the language, that his
words were intended to produce, and likely to produce,
imminent disorder, those words could not be punished by the
State on the ground that they had `a tendency to lead to
violence.' '' \159\
The Supreme Court subsequently explained that a finding of
``imminence'' also hinged upon the context and timing
connecting speech and subsequent acts of lawbreaking. In
NAACP v. Claiborne Hardware Company, a local branch of the
National Association for the Advancement of Colored People
(NAACP) organized a boycott of white-owned stores in
Mississippi.\160\ The boycott was largely supported by
impassioned speeches encouraging nonviolent picketing--
including by boycott organizer Charles Evers--but some acts
and threats of violence did occur.\161\ The Court concluded,
``There are three separate theories that might justify
holding Evers liable . . . First, a finding that he
authorized, directed, or ratified specific tortious activity
would justify holding him responsible for the consequences of
that activity. Second, a finding that his public speeches
were likely to incite lawless action could justify holding
him liable for unlawful conduct that in fact followed within
a reasonable period. Third, the speeches might be taken as
evidence that Evers gave other specific instructions to carry
out violent acts or threats.'' \162\ In the specific case of
Evers' speech, the Court concluded ``In the course of
[Evers'] pleas, strong language was used. If that language
had been followed by acts of violence, a substantial question
would be presented whether Evers could be held liable for the
consequences of that unlawful conduct. In this case, however
the acts of violence identified in 1966 occurred weeks or
months after [his] April 1, 1966, speech.'' \163\
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There is overwhelmingly clear and convincing evidence that
Mr. Trump's overall course of conduct meets the spirit of the
Brandenburg test. As laid out in the Claiborne case, a
finding of ``imminence'' should take into account the context
and timing of Mr. Trump's January 6th rally speech. After
months of fueling the narrative that the election was stolen
from him, Mr. Trump asked his supporters to assemble on the
day that Congress would be certifying the election results.
Once Mr. Trump had gathered his supporters--knowing that they
would listen--he directed the crowd to ``walk down
Pennsylvania Avenue,'' ``fight like hell,'' and ``stop the
steal.'' Unlike the speech in Claiborne, which was far
removed in time, the lawlessness was imminent because it
happened a short distance and short time after Mr. Trump's
speech. Unlike the indefinite speech in Hess, Mr. Trump's
speech was directed at a specific group of persons, and
subsequent acts of violence are directly traceable to people
who had listened to Mr. Trump's calls to action.
On the issue of Mr. Trump's intent, whether or not Mr.
Trump specifically intended every act of violence, he set
these events in motion. If Mr. Trump truly did not intend for
lawbreaking, what did he expect his supporters would do once
they reached the Capitol? How did he expect his supporters to
lawfully achieve the aim of preventing electors from being
counted? From this evidence, we can infer that Mr. Trump
understood there was a high likelihood that his supporters
would break the law once they got to the Capitol.
Further revealing his state of mind, Mr. Trump did not
publicly disapprove of the insurrection as it was happening,
or take concrete steps to clear the mob. The first public
statement he made, once the mob had breached the Capitol, was
to disparage Vice President Pence for failing to block the
certification. Instead of acting expeditiously, it took him
nearly two hours to acknowledge the attack. In his three
statements that day, he repeated false claims that the
election was stolen and sympathized with his followers. There
are reports that he even called a sitting Senator to ask him
to object to additional states, as the insurrection was
taking place. In addition, there is no evidence that Mr.
Trump tried to activate the National Guard, and even rebuffed
requests to do so. The question becomes how did Mr. Trump
expect these actions--criticizing the Vice President, urging
additional electoral objections, and praising his
supporters--to calm down tensions? How did he foresee that
the overwhelmed Capitol police would be able to push back the
mob without additional law enforcement assistance? From this
evidence, we can infer that Mr. Trump was satisfied, or at
least was not displeased, that his actions had inflamed his
supporters to violently disrupt the electoral certification.
c. Mr. Trump's Speech Was Held to a Higher Standard as a
Public Official
It is further important to note that Mr. Trump was not
making statements in his capacity as a private citizen but as
president of the United States. In the Supreme Court case,
Garcetti v. Ceballos, the Court held that ``when a citizen
enters government service, the citizen by necessity must
accept certain limitations on his or her freedom.'' \164\ In
this case, the respondent was disciplined for a memorandum he
wrote as part of his employment in a district attorney's
office, and asserted that his supervisors violated his First
Amendment rights.\165\ The Court concluded ``We hold that
when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.\166\
In Mr. Trump's case, it would be difficult to argue that he
gave a political speech at the ``Save America'' rally outside
the course of performing his official duties. The purpose of
the speech was to use his role as president to urge his
supporters to stop the certification of Biden's electoral
win. In addition, there is evidence that members of the crowd
had taken Mr. Trump's invocations to attend the rally, and
his insisting that they head to the Capitol, as instructions
coming from the president.\167\
Moreover, as Manager Raskin explained, a president takes an
oath to uphold the laws, the Constitution, and the principles
of our republic.\168\ In exchange, the president is given
tremendous power and prestige--more so than any other person
in the country. That is why, in an instant, a president's
words can calm, agitate, or otherwise change the landscape on
issues ranging from foreign affairs, to the economy, to the
rule of law. Not only can the president's words have an
expansive ripple effect, they are more likely to succeed in
inciting action from the public. These potent powers can be
wielded by the president for the good of the country, or can
be exploited to subject it to the gravest abuses. That is
why--for the protection of our laws and democratic
institutions--a president's primary obligation is to uphold
their oath of office, and any freedom of expression must
yield to that higher duty.
In this case, Mr. Trump did not have a First Amendment
right to fuel a mass disinformation campaign, foreseeably fan
the flames of political division, and then direct a mob to
disrupt a congressional proceeding.
VII. OBSTRUCTION OF ELECTORAL COLLEGE
In inciting the insurrection on January 6th and attempting
to overturn the 2020 election, Mr. Trump attempted to destroy
our democratic system and negate the will of the American
people.
The Electoral College process is laid out in the Twelfth
Amendment of the Constitution, which states:
``The Electors shall meet in their respective states and
vote by ballot for President and Vice-President, one of whom,
at least . . . they shall make distinct lists of all persons
voted for as President, and of all persons voted for as Vice-
President, and of the number of votes for each, which lists
they shall sign and certify, and transmit sealed to the
seat of the government of the United States, directed to
the President of the Senate;--the President of the Senate
shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes
shall then be counted[.]''
Just as the Electoral College has been carried out and
affirmed since the first presidential election of President
George Washington,\169\ the 2020 election took place
according to the requirements of the Constitution. Voters in
each respective state and territory chose their electors to
serve in the Electoral College,\170\ with Mr. Biden winning a
majority of 306 electoral votes.\171\ On December 14, 2020,
the appointed electors convened state-by-state to cast their
ballots for the President and Vice President of the United
States, and certified the results.\172\ On January 6th to 7th
of 2020, Congress counted the certified votes, and declared
Mr. Biden and Kamala Harris the winners. \173\
Throughout the Electoral College process, Mr. Trump
attempted to interfere and nullify the outcome. For example,
as discussed in Section VII, Mr. Trump was at the head of a
mass disinformation campaign to discredit the election
results before the election had even gotten underway, and
then filed dozens of lawsuits alleging widespread voter
fraud.\174\ In addition, as I will outline, he wielded his
overwhelming power as president to cajole and intimidate
members of federal, state, and local government to start
investigations, file lawsuits, and reject electoral votes in
a bid to overturn the 2020 election.
A. Mr. Trump Attempted to Use Federal Law Enforcement
Agencies to Carry Out Investigations and File Lawsuits
After losing the 2020 election, Mr. Trump pushed the
Justice Department to investigate his meritless allegations
of election irregularities.\175\ He also pushed the Justice
Department to ask the Supreme Court to invalidate Mr. Biden's
victory, which his appointees refused to do, citing the lack
of evidence.\176\ Mr. Trump even disparaged his own FBI and
DOJ, implying that they were working against him. In an
interview, Mr. Trump said, ``This is total fraud. And how the
F.B.I. and Department of Justice--I don't know, maybe they're
involved--but how people are allowed to get away with this
stuff is unbelievable. This election was a total fraud . . .
Missing in action . . . Can't tell you where they are.''
\177\
Succumbing to this pressure, Attorney General William Barr
issued a memorandum to U.S. attorneys across the country
allowing them to pursue any ``substantial allegations'' of
voting irregularities before the 2020 presidential election
was certified.\178\ The memorandum gave prosecutors the
ability to sidestep longstanding Justice Department policy of
not taking overt steps on possible election fraud before
results are certified. In response, career DOJ prosecutors
called on Mr. Barr to rescind the memo, because it was not
based on fact and there was no evidence of widespread voter
fraud.\179\
After Mr. Barr stepped down as Attorney General, Mr. Trump
then reportedly pressured Barr's successor, Acting Attorney
General Jeffrey Rosen, to file legal briefs seeking to
overturn his election loss.\180\ He wanted Mr. Rosen to
appoint special counsels, including a counsel who would look
into Dominion Voting Systems--which is at the center of a
right-wing conspiracy theory accusing the company of
conspiring with the Venezuelan government to tip the election
toward Mr. Biden. Mr. Rosen refused the president's
entreaties. Mr. Trump then plotted with Jeffrey Clark, a
Trump loyalist and the head of the DOJ's civil division, to
oust Mr. Rosen as acting attorney general, and replace him
with Mr. Clark, who was willing to do Mr. Trump's bidding in
trying to overturn the Georgia election results. This plan
was only unsuccessful because Mr. Trump's advisors convinced
him the move could potentially lead to mass resignations
within DOJ's leadership and lead to congressional
investigations.\181\
B. Mr. Trump Exerted Inappropriate Pressure on State Elected
Officials
Article II, Section 1, Clause 2 provides that each state
shall appoint electors ``in such Manner as the Legislature
thereof may direct.'' \182\ However, the decisions on how and
when to choose electors is left up to the states. The
Electoral Count Act only requires that states be required to
certify their elections at least six days before the electors
meet to vote.\183\ After his loss on Election Day, Mr. Trump
sought to exploit the ambiguous language of the Electoral
Count Act that gives states discretion in choosing electors.
Most state laws require the appointment of electors who vote
according to the outcome of the popular vote in each
state.\184\
However, Mr. Trump sought to use the weight of his office
to persuade and, in some
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cases, intimidate state officials. For example, he invited
GOP members of the Michigan state legislature to the White
House, in a brazen bid to get them to throw out the state's
election results.\185\ He also called two members of the
Wayne County Board of Canvassers, including its Republican
chairwoman, who had already voted to certify that Joe Biden
won their county.\186\ Within 24 hours of the call, the
Republican chairwoman announced that she wanted to
``rescind'' her vote.\187\ Her reasoning mirrored Mr. Trump's
claims that the election may have been rife with fraud. In
another instance, he called the speaker of the Pennsylvania
House of Representatives, Bryan Cutler, and inquired about
the electoral process. According to Cutler's spokesperson,
Mr. Trump blatantly asked, ``I'm hearing about all these
issues in Philadelphia, and these issues with your law What
can we do to fix it?'' \188\
Mr. Trump's effort hit its crescendo when the Trump
campaign convinced supporters in several states to create an
alternate slate of electors to send for the congressional
certification.\189\ The Trump campaign helped organize
alternate Electoral College meetings in Wisconsin, Arizona,
Pennsylvania, Georgia, New Mexico, and Nevada.\190\ However,
election law experts dismissed the validity of these false
electors, which had ``neither been certified by state
executives nor purportedly appointed by state legislators.''
\191\
Mr. Trump also took extra effort to influence the outcome
of the Georgia election, a fierce battleground state. In
early December, he called Governor Brian Kemp and asked him
to hold a special session of the Georgia legislature to
appoint Trump electors to reverse Mr. Biden's win. Mr. Trump
also wanted Kemp to order an audit of absentee ballot
signatures. When Kemp told the former president he would not
be complying with either demand, Mr. Trump told a crowd of
supporters at a Georgia rally that, ``Your governor could
stop it very easily if he knew what the hell he was doing . .
. So far we haven't been able to find the people in Georgia
willing to do the right thing.'' \192\
In the most extraordinary example of his inappropriate
interactions with state lawmakers, Mr. Trump outright tried
to coerce Georgia Secretary of State Brad Raffensperger, ``to
find'' 11,780 votes--which would amount to the one vote
margin he needed to win the state.\193\ Mr. Trump spent
roughly an hour haranguing Raffensperger and Ryan Germany,
the Georgia secretary of state's general counsel, about doing
another vote count and insisting on baseless conspiracy
theories. Even when presented with facts to the contrary by
Raffensperger and Germany, who are both Republicans, Mr.
Trump did not relent.
Mr. Trump also made veiled threats of how his supporters
would punish Republicans if the Georgia election officials
did not go along with what he was asking. Specifically, he
told Raffensperger, who will be up for reelection in 2022,
``[T]hey hate the state, they hate the governor, and they
hate the secretary of state. I will tell you that right now.
And the only people that like you are people that will never
vote for you. You know that, Brad, right?'' \194\
Mr. Trump even suggested that Raffensperger and Germany
would face criminal consequences if they refused to
intervene, saying ``[T]he ballots are corrupt. And you're
going to find that they are--which is totally illegal, it is
more illegal for you than it is for them because, you know
what they did and you're not reporting it. That's a
criminal--that's a criminal offense. And you can't let that
happen. That's a big risk to you and to Ryan, your lawyer. ''
\195\
In the end, Mr. Trump made so many false claims about the
Georgia election, a top state official had to publicly debunk
the claims one-by-one to restore public trust in the
integrity of their election.\196\
C. Mr. Trump Lobbied Vice President Pence to Reject Electoral
Votes
Vice President Pence presided over the January 6th
certification of electoral votes. This role is spelled out by
Article II, Section 1 of the Constitution, which dictates
that ``The President of the Senate shall, in the presence of
the Senate and House of Representatives, open all the
certificates and the votes shall then be counted.'' \197\ In
conducting this duty, the Vice President has no more power
than to determine whether the certificates submitted by each
state are authentic and then to count the votes.\198\
In the days leading up to and on January 6th, Mr. Trump
denied the constitutional reality of the Vice President's
role and made it clear that he wanted Vice President Pence to
block electoral votes for Mr. Biden. At his behest, a group
of Republican lawmakers filed a lawsuit against Vice
President Pence. The lawsuit alleged that the Twelfth
Amendment gave the Vice President, and not states, unilateral
power to determine which among competing slates of electors
may be counted.\199\ Mr. Trump's own Justice Department
stepped in to defend Mr. Pence, and a federal judge tossed
out the lawsuit after finding that the Republican lawmakers
lacked standing to sue in this case.\200\
Still, Mr. Trump unabashedly and repeatedly tried to coerce
Vice President Pence into unilaterally rejecting the election
results. On January 2nd, he falsely proclaimed over Twitter
that, ``The Vice President has the power to reject
fraudulently chosen electors.'' \201\ Two days later, Mr.
Trump said at a rally in Georgia that, ``I hope Mike Pence
comes through for us, I have to tell you . . . Of course, if
he doesn't come through, I won't like him as much.'' \202\
Trump reportedly met with and called Pence multiple times--
plying him to object to Biden's victory, including at least
one time with threatening language.\203\ Trump reportedly
solicited others in his orbit to put pressure on the Vice
President, including Rudy Giuliani and trade adviser Peter
Navarro.\204\ Despite the enormous pressure, Mr. Pence told
Mr. Trump that he planned to certify the election results for
Mr. Biden.\205\
In response, Mr. Trump tweeted on the morning of January
6th that, ``All Mike Pence has to do is send [the votes] back
to the States, AND WE WIN. Do it Mike, this is a time for
extreme courage!'' \206\ He also tweeted ``If Vice President
@Mike--Pence comes through for us, we will win the
Presidency. Many States want to decertify the mistake they
made in certifying incorrect & even fraudulent numbers in a
process NOT approved by their State Legislatures (which it
must be). Mike can send it back!'' \207\ In his remarks at
the ``Save America'' rally itself, Mr. Trump said, ``I hope
Mike is going to do the right thing. I hope so. I hope so.
Because if Mike Pence does the right thing, we win the
election. . . . And I actually--I just spoke to Mike. I said:
'Mike, that doesn't take courage. What takes courage is to do
nothing. That takes courage.' '' \208\
Once the electoral vote count had begun, it was clear that
Vice President Pence was not going to comply with his
demands. Mr. Trump attacked him on Twitter writing, ``Mike
Pence didn't have the courage to do what should have been
done to protect our Country and our Constitution, giving
States a chance to certify a corrected set of facts, not the
fraudulent or inaccurate ones which they were asked to
previously certify. USA demands the truth!'' \209\
D. Mr. Trump Encouraged Members of Congress to Deny and
Overturn the Election Results
Once it was clear that Mr. Trump had no plans of conceding,
even after Mr. Biden had been declared the presumptive
winner, Republicans were faced with a choice. Manager Lieu
explained that Mr. Trump targeted Members of Congress on
social media making it clear he saw their siding with him as
a loyalty test. Mr. Trump reminded Republicans that he, in
his view, had gotten them elected and he expected their
gratitude.\210\ Under these threats of retribution, Mr. Trump
was successful in getting Republicans to line up with him--in
either refusing to acknowledge that Mr. Biden had won or
worse, enabling his baseless claims of a rigged
election.\211\
In early December, Mr. Trump also identified an ally in the
House of Representatives who was circulating a Dear Colleague
letter asking Republican members to sign onto an amicus brief
supporting a lawsuit filed by the Texas Republican Attorney
General in the Supreme Court to void the election results of
other states.\212\ Mr. Trump began to personally lobby House
Republicans asking them to sign the amicus brief.\213\ In the
end, one hundred and twenty six Republican members of
Congress signed on, including the House Minority Leader.\214\
The U.S. Supreme Court rejected the lawsuit saying the state
of Texas lacked standing to pursue the case.\215\
As an extension of Mr. Trump' pressure campaign, Republican
Members of Congress began to similarly view the certification
of the Electoral College as a loyalty test to Mr. Trump. A
few days before January 6th, eleven current and then-incoming
Republican senators announced that they would vote to reject
the Electoral College votes of some states as not ``lawfully
certified,'' unless Congress appointed a commission to
conduct an emergency, ten day audit of the election
results.\216\ One hundred and forty Republican Members of the
House planned a similar effort.\217\ Together, the Senate and
House Members planned to object to the counting of
electors from Arizona, Georgia, Michigan, Nevada,
Pennsylvania, and Wisconsin.\218\
The question is not whether these Members had the legal
right to object to electors but whether there were facts to
support the objections. At that point, the results of the
election and lack of substantive voting irregularities was
affirmed by dozens of judges, the U.S. Supreme Court,
governors, and election officials.\219\ In addition,
Department of Homeland Security officials put out a statement
that said, ``The November 3rd election was the most secure in
American history.''\220\ Attorney General Barr put out a
similar statement that said, ``[We] have not seen fraud on a
scale that could have effected a different outcome in the
election.''\221\ In the face of all this evidence, the
subsequent objections could be seen as little more than a
ploy to lend specious legitimacy to Mr. Trump's allegations
of voter fraud and avoid provoking Mr. Trump's ire.
E. Mr. Trump Sought to Block the Peaceful Transfer of Power
Mr. Trump's overall course of conduct embodied the exact
kind of behavior that the Framers built constitutional
protections to thwart. The Framers knew that an executive who
amassed too much power might replicate the abuses of a
monarchy. At the Constitutional Convention, James Madison
explained the risks of appointing an executive--saying ``loss
of capacity or corruption was more within the compass of
probable events, and either of them might be fatal to the
Republic.''\222\ An exchange between two delegates, William
Richardson Davie and James Wilson, highlights the importance
of safeguarding against a corrupt president that would cheat
to get reelected. Davie stated, ```[i]f he be not impeachable
whilst in office, he will spare no efforts or means
[[Page S934]]
whatever to get himself reelected.' [Davie] considered this
as an essential security for the good behaviour of the
Executive.''\223\ Wilson concurred with Davie ``in the
necessity of making the Executive impeachable while in
office.''\224\
Without mechanisms to keep an out-of-control president in
check, there was little binding him to the law. This, in
part, prompted the Framers to design the system of checks and
balances and Congress's Impeachment power. Another
intentional hallmark of our democracy is the peaceful
transfer of power, which is especially important when an
incumbent loses re-election.\225\ This assures that an
executive acquires and maintains power only through lawful
means. It also ensures that power is given to a president,
and taken back, according to the will of people. It began
when President John Adams--defeated by his bitter political
rival Thomas Jefferson--quietly left the White House on the
morning of the new president's inauguration.\226\ Since then,
no president has ever refused to accept an election result or
defied the lawful processes for resolving electoral disputes,
until Mr. Trump.
Mr. Trump, unable to accept the will of the people,
categorically rejected the decision of Americans as expressed
in the 2020 election. Even more than refusing, he repeatedly
sought to undermine processes at the federal, state, and
local level that would advance a peaceful transfer of power.
As the House Managers noted, Mr. Trump tried to obstruct the
election process through non-violent means.\227\ When these
attempts failed, he directed a mob to help him wrest power by
launching an attack on the legislative branch.
IX. VIOLATION OF SEPARATION OF POWERS
One of the key principles rooted in our democratic system
is the separation of powers between the co-equal branches of
government. This is apparent from the way the Framers devised
a system of federal government that diffuses and divides its
core functions across the legislative, executive, and
judicial branches.
The doctrine is rooted in a political philosophy that aims
to keep the government, as a whole and each branch, both
limited and empowered, so that the government can function
effectively, while the branches can prevent one another from
acting arbitrarily or recklessly. As James Madison explained
in Federalist Paper Number 47, ``The accumulation of all
powers, legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many, and whether
hereditary, selfappointed, or elective, may justly be
pronounced the very definition of tyranny.''\228\
Therefore, when any one branch of government seeks to
obstruct an essential function of another branch, it
threatens the separation of powers.\229\ In a case where a
president seeks to derogate the authority of another branch,
it can also undermine the president's constitutional
obligation to ``take Care that the Laws be faithfully
executed.''\230\
In inciting the armed assault on the Capitol on January
6th, Mr. Trump knowingly and recklessly threatened a
constitutional proceeding of the Congress. In all this, Mr.
Trump gravely endangered the security of the United States
and its institutions, and imperiled a coequal branch of
government.
X. VIOLATION OF OATH OF OFFICE
Manager Castro outlined the numerous ways that Mr. Trump
abandoned his post as the insurrection began, and even hours
after it was underway.\231\ Capitol Police were overwhelmed
and violently assaulted by the armed mob. Members of Congress
and congressional staff feared for their lives, many of them
hiding or barricaded in offices, as the mob wreaked mayhem on
the Capitol grounds. It was all unfolding on television,
leaving little doubt that Mr. Trump saw it happening in real
time.
Manager Castro emphasized that Mr. Trump could have simply
told the rioters to stop and leave the Capitol.\232\ As I
explained in Section VII, Mr. Trump did not acknowledge the
attack for nearly two hours, while Republican lawmakers and
the people closest to him implored him to call off the
attack. Instead, he tweeted out criticism of Vice President
Pence. When he finally acknowledged the attack, he did not
denounce the mob or rioters, but asked them to ``stay
peaceful,'' even though it was clear that they had undertaken
an unlawful siege at the Capitol. At this time, Mr. Trump
still did not ask the rioters to stop. Three and half hours
in, he released a video reaffirming the same voter fraud
lies, and told his supporters, ``We love you. You're very
special.'' While Mr. Trump did tell the rioters to go home
this time, he still refused to disavow the ongoing attack or
the attackers themselves.
In addition to inciting the insurrection, Mr. Trump
abandoned his duties to defend the American people, even
after the events of the day turned deadly. Manager Castro
noted that he did not deploy the National Guard, nor any
other law enforcement.\233\ He was so disengaged from
discussions with the Pentagon about deploying the National
Guard that Vice President Pence had to intervene to help move
the request forward.\234\
Taken together, Mr. Trump's conduct was an astonishing and
willful dereliction of duty. He had sworn an oath to
``faithfully execute the office of President of the United
States and preserve, protect and defend the Constitution of
the United States.''\235\ Yet on that day, he commanded his
supporters to inflict grave harm to the constitutional order,
by telling them to disrupt the electoral certification and
the peaceful transfer of power. He sat back and watched as
his supporters took part in an attack on the government
institutions that he swore to defend. Then, he entirely
failed to stop or condemn the widespread lawbreaking that his
supporters took part in. As such, I find that there is
overwhelmingly clear and convincing evidence that Mr. Trump
violated his oath of office.
XI. CONCLUSION: CONVICTION AND DISQUALIFICATION OF MR. TRUMP IS AN
APPROPRIATE REMEDY
Conviction and disqualification of a president from office
requires a high standard and should only be arrived at when
there are no other remedies available.
First, I would refute several assertions by President's
Counsel that the Impeachment proceeding, and the remedies
thereof, are not the appropriate way to hold Mr. Trump
accountable for his actions. President's Counsel and the
Senate Minority Leader argue that the more proper forum is a
criminal proceeding because of the criminal implications of
his offenses. Taken to its logical extreme, their views would
absurdly mean that if a president's malfeasance could be
prosecuted, the president should be protected from the
Impeachment process.
In addition, Manager Raskin correctly differentiated the
purpose and independence of the Impeachment process from the
prosecution of crimes. As Manager Raskin stated,
``[Impeachment] was created to prevent and deter elected
officials who swear an oath to represent America but then
commit dangerous offenses against our republic.''\236\ An
Impeachment, unlike a criminal case, is not meant to punish
the defendant, but to guard the country and the Constitution
from an unfit executive. As I have explained, by his conduct,
Mr. Trump violated his oath of office and refused to defend
the Constitution itself. Therefore, an Impeachment is the
most appropriate forum to protect the integrity of the
presidency and the constitutional order.
President's Counsel also contend that Impeachment is
unnecessary in this case because the 2020 election was the
remedy for his conduct. Of course, when Mr. Trump incited a
mob to violent action at the U.S. Capitol, it was an attempt
to delay the certification of the election results. This
followed months of Mr. Trump's public refusal to concede the
election on the grounds that it was stolen from him. Clearly,
the election process is insufficient in this case because Mr.
Trump does not recognize the validity of any election outcome
that does not favor him.
Failing to convict the former president would result in
several constitutional perils. First, Mr. Trump may once
again run for president. If re-elected, there is no reason to
believe that he would feel constrained by any limitations. An
acquittal essentially would provide him permission to commit
the same abuses or worse, without fear of accountability.
That includes leveraging all the powers of the presidency to
stay in power or wage an assault on a coequal branch of
government. Presidents must be held accountable when their
lust for power does violence to bedrock principles.
Disqualification from public office is the only remedy left
to prevent such behavior from Mr. Trump in the future.
A failure to convict would also be a lesson to future
presidents with authoritarian tendencies that they can attack
our democratic principles and institutions without
consequence. Even beyond a ``January Exception,'' a future
president might reason that otherwise impeachable conduct
will not be challenged during any part of their presidency.
In addition to rank abuse of power, a future president may
not submit to the peaceful transfer of power and the sacred
will of the people. In terms of the legislative branch,
Congress would send a message that it is unwilling to use its
own oversight powers functionally and effectively, and is
unwilling to uphold a meaningful separation of powers.
Disqualification is the necessary method for protecting the
republic from such democratic decay within the executive and
legislative branches.
This chapter in history reminds us that democracy is
fragile and we must diligently safeguard its principles. To
this end, I have a responsibility to defend the truth, the
rule of law, and our democratic institutions. I am compelled
to vote to convict President Donald J. Trump of committing
``high Crimes and Misdemeanors'' and support his
disqualification from ever again holding an office of public
trust.
Endnotes
1. Impeaching Donald John Trump, President of the United
States, for high crimes and misdemeanors, H.R. Res. 24, 117th
Cong. (2021).
2. U.S. Const. art. I, Sec. 3, cl. 6.
3. U.S. Const. art. II, Sec. 4.
4. U.S. Const. art III, Sec. 3, cl. 1.
5. Staff of H. Comm. on the Judiciary, 116th Cong., Rep. on
Constitutional Grounds for Presidential Impeachment 14 (Comm.
Print 2019).
6. 2 Sir William Blackstone, Commentaries on the Laws of
England 2152 (William Carey Jones ed., 1976).
7. Id. at 2153.
8. Charles Doyle, Cong. Research Serv., 98-882, Impeachment
Grounds: A Collection of Selected Materials 4 (1998).
9. The Federalist Paper No. 65, at 439 (James Madison)
(Jacob E. Cooke ed., 1961)
[[Page S935]]
10. 2 The Records of the Federal Convention of 1787 550
(Max Farrand ed., 1911).
11. Ibid.
12. 4 The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 113 (Jonathon Elliot
ed., 2nd ed. 1861).
13. Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis 21 (3rd ed. The
University of Chicago Press 2019) (1996).
14. 2 Joseph Story, Commentaries on the Constitutions 799
at 269-70 quoting William Rawle, A View of the Constitution
of the United States at 213 (2d ed. 1829).
15. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep. on
Constitutional Grounds for Presidential Impeachment 27 (Comm.
Print 1974).
16. 2 The Records of the Federal Convention of 1787, supra
note 10, at 64-65.
17. Id. at 550
18. Ibid.
19. Ibid.
20. Ibid.
21. Id. at 551.
22. Id. at 600.
23. U.S. Const. art. I, Sec. 3, cl. 7.
24. 1 The Collected Works of James Wilson 736 (Kermit L.
Hall and Mark David Hall eds., 2007).
25. Memorandum from William Barr, Attorney General,
Department of Justice, to Rod Rosenstein, Deputy Attorney
General, Department of Justice, and Steve Engel, Assistant
Attorney General, Department of Justice 12 (June 8, 2018) (on
file with the New York Times) (emphasis in original).
26. 2 The Records of the Federal Convention of 1787, supra
note 10, at 65-66.
27. Charles L. Black, Jr. & Philip Bobbit, Impeachment: A
Handbook, New Edition 17 (2018).
28. The Federalist No. 65, supra note 9, at 441; Laurence
Tribe & Joshua Matz, To End a Presidency: The Power of
Impeachment 127 (2018).
29. The Federalist No. 65, supra note 9, at 441.
30. Id. at 442.
31. Black & Bobbitt, supra note 27.
32. Ibid. (Black's analysis is cited by several other
scholars as persuasive; See e.g., Laurence Tribe and Joshua
Matz, To End a Presidency: The Power of Impeachment 137
(2018).
33. Bruce L. Castor Jr. et al, Trump's Answer to Article of
Impeachment, (Feb. 2, 2021) at 1, https://www.cnn.com/2021/
02/02/politics/trump-response-impeachment-article/index.html.
34. Castor Jr. et al, supra note 33, at 1-2.
35. Jamie Raskin et al, Trial Memorandum of the United
States House of Representatives I. the Impeachment Trial of
President Donald J. Trump, House Judiciary Com. 48 (Feb. 2,
2021), https://judiciary.house.gov/news/
documentsingle.aspx?DocumentID=3515.
36. Jared P. Cole & Todd Garvey, Impeachment and the
Constitution, CRS (Nov. 20, 2019), https://
crsreports.congress.gov/product/pdf/R/R46013.
37. The Federalist No. 65, supra note 9, at 397.
38. Raskin et al, supra note 35, at 51.
39. Brian C. Kalt & Frank Bowman, Congress Can Impeach
Trump Now and Convict Him When He's Gone, Wash. Post (Jan 11,
2021), https://www.washingtonpost.com/outlook/2021/01/11/
trump-impeachment-senate-trial/.
40. Ibid.
41. Brian C. Kalt, ``The Constitutional Case for the
Impeachability of Former Federal Officials: An Analysis of
the Law, History, and Practice of Late Impeachment'', 6 Texas
Review of Law and Politics 13, 26 (2001).
42. Kalt, supra note 40, at 29.
43. Mark Aaronson et al, Constitutional Law Scholars on
Impeaching Former Officers, Politico (January 21, 2021), at
2, https://www.politico.com/f/?id=00000177-2646-de27-a5f7-
3fe714ac0000.
44. Id. at 1-92.
45. The Federalist No. 65, supra note 9, at 456.
46. Senate Historical Office, ``The First Impeachment'',
United States Senate, https://www.senate.gov/artandhistory/
history/minute/The-First-Impeachment.htm.
47. Ibid.
48. Kalt & Bowman, supra note 38.
49. Ibid.
50. Raskin et al, supra note 35, at 73-74.
51. Raskin et al, supra note 35, at 74.
52. Kalt & Bowman, supra note 38.
53. Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analyses 80, (Henry Barton
Dawson ed., U. of Chicago Press, 2000).
54. U.S. Const. art. I, Sec. 3, cl. 6.
55. The Federalist No. 65, supra note 9, at 441.
56. Siobhan Hughes, McConnell Won't Convene Senate Early to
Accept Impeachment Article, Wall St. J. (Jan. 13, 2021),
https://www.wsj.com/livecoverage/trump-impeachment-house-
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57. 167 Cong. Rec. S662 (daily ed. Feb. 11, 2021)
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117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.
58. Kavin Collier, Selfies, social media posts making it
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59. Bryce Klehm & Rohini Kurup, Compiling the Criminal
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60. Salvador Rizzo, Trump attorneys falsely claim he was
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61. Jared P. Cole, Terrorist Databases and the No Fly List:
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62. Incitement, Black's Law Dictionary (10th ed. 2014).
63. Ibid.
64. Nicholas Fandos et al, 144 Constitutional Lawyers Call
Trump's First Amendment Defense `Legally Frivolous', N.Y.
Times (Feb. 5, 2021), https://www.nytimes.com/2021/02/05/us/
politics/trump-impeachment-defense.html
65. U.S. Const. art. II, Sec. 1, cl. 8.
66. See 77 C.J.S. Riot Sec. 36.
67. Eugene Kiely et al, The President's Trumped-Up Claims
of Voter Fraud, FactCheck.org (Jul. 30, 2020), https://
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68. C-SPAN, President Trump Remarks in Oshkosh, Wisconsin,
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president-trump-give-acceptance-speech-white-house-week
69. Paul LeBlanc & Jason Hoffman, Trump again casts doubt
on whether he'll accept election result in latest unfounded
attack on voting process, CNN (Sept. 24, 2020), https://
www.cnn.com/2020/09/24/politics/trump-2020-election-ballots/
index.html.
70. Sanya Mansoor, `I Have to See.' Mr. Trump Refuses to
Say If He Will Accept the 2020 Election Results', TIME (Jul.
19, 2020), https://time.com/5868739/trump-election-results-
chris-wallace/
71. Nick Niedzwiadek et al, After Trump meeting, Michigan
GOP leaders say Biden's win still stands, Politico (Nov. 20,
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72. Staff Reports, READ THE FULL STATEMENT: Trump Responds
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73. Aamer Madhani & Kevin Freking, In video, Trump spreads
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74. Philip Rucker, Trump escalates baseless attacks on
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75. Aamer Madhani & Kevin Freking, In video, Trump spreads
baseless claims about voter fraud, PBS News (Dec. 2, 2020),
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76. James Crowley, Trump Attacks FBI, DOJ, Supreme Court
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77. Alana Wise, Despite Clear Defeat, Trump Vows To Fight
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78. Ariane de Vogue & Paul LeBlanc, Trump asks Supreme
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80. Ibid.
81. It's Official: The Election Was Secure, Brennan Ctr.
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[[Page S936]]
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100. @realdonaldtrump, I will be speaking at the SAVE
AMERICA RALLY tomorrow on the Ellipse at 11 AM Eastern.
Arrive early--doors open at 7 AM Eastern. BIG CROWDS!,
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108. Bill Bostock, Videos show Trump protesters chanting
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maga-march.
110. Atlantic Council's DFRLab, #StopTheSteal: Timeline of
Social Media and Extremist Activities Leading to 1/6
Insurrection, Just Security (Feb. 10, 2021), https://
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media-and-extremist-activities-leading-to-1-6-insurrection/
111. Pilar Melendez, `Trump Is Calling Us to Fight!':
Georgia Teen Charged in Capitol Riots, Daily Beast (Feb. 8
2021), https://money.yahoo.com/trump-calling-us-fight-
georgia-232147165.html.
112. Dan Barry et al, `Our President Wants Us Here': The
Mob That Stormed the Capitol, N.Y. Times (Feb. 5, 2021),
https://www.nytimes.com/2021/01/09/us/capitol-rioters.html
113. Alan Feurer & Nicole Hong, `I Answered the Call of My
President': Rioters Say Trump Urged Them On, N.Y. Times (Jan.
17, 2021), https://www.nytimes.com/2021/01/17/nyregion/
protesters-blaming-trump-pardon.html.
114. Aaron Blake, What Trump said before his supporters
stormed the Capitol, annotated, Wash. Post (Jan. 11, 2021),
Trump's speech before rioters stormed the Capitol,
annotated--Washington Post
115. Ibid.
116. Julia Jacobo, A visual timeline on how the attack on
Capitol Hill unfolded, ABC News (Jan. 10, 2021), https://
abcnews.go.com/US/visual-timeline-attack-capitol-hill-
unfolded/story?id=75112066.
117. Ibid.
118. Jamie Raskin et al, Trial Memorandum of the United
States House of Representatives In the Impeachment Trial of
President Donald J. Trump, House Judiciary Com. (Feb. 2,
2021), at 22, https://judiciary.house.gov/uploadedfiles/
house_trial_brief_final.pdf, Taken from Marc Fisher et
al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021),
https://www.washingtonpost.com/graphics/2021/politics/trump-
insurrection-capitol/.
119. Evan Hill et al., They Got a Officer!': How a Mob
Dragged and Beat Police at the Capitol, N.Y. Times (Jan. 11,
2021), https://timesofindia.indiatimes.com/world/us/they-got-
a-officer-how-a-mob-dragged-and-beat-police-at-the-capitol/
articleshow/80225478.cms; Peter Hermann, `We Got to Hold This
Door', Wash. Post (Jan. 14, 2021), https://
www.washingtonpost.com/dc-md-va/2021/01/14/dc-police-capitol-
riot/?arc404=true. Luke Mogelson, New Yorker, Among the
Insurrectionists, The New Yorker (Jan. 15, 2021), https://
www.newyorker.com/magazine/2021/01/25/among-the-
insurrectionists.
120. Officer Christopher Frank Affidavit, at 1 (Jan. 6,
2021), https://perma.cc/YN87-BDKH; Officer Alexandria Sims
Affidavit, at 1 (Jan. 7, 2021), https://perma.cc/392C-CGPC;
Special Agent Lawrence Anyaso Affidavit, at 1 (Jan. 7, 2021),
https://perma.cc/M3GZ-WSVM; Luke Mogelson, New Yorker, Among
the Insurrectionists, The New Yorker (Jan. 15, 2021), https:/
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insurrectionists.
121. Julia Jacobo, A visual timeline on how the attack on
Capitol Hill unfolded, ABC News (Jan. 10, 2021), https://
abcnews.go.com/US/visual-timeline-attack-capitol-hill-
unfolded/story?id=75112066.
122. Ibid.
123. Ibid.
124. 4 Lauren Leatherby & Anjali Singhvi, Critical Moments
in the Capitol Siege, N.Y. Times (Jan. 15, 2021), https://
www.nytimes.com/interactive/2021/01/15/us/trump-capitol-riot-
timeline.html.
125. Ashley Parker et al., How the Rioters Who Stormed the
Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15,
2021), https://www.washingtonpost.com/politics/pence-rioters-
capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b-
f1381ef3d207_story.html.
126. Rebecca Tan, A Black Officer Faced Down a Mostly White
Mob at the Capitol. Meet Eugene Goodman, Wash. Post (Jan. 14,
2021), https://www.washingtonpost.com/local/public-safety/
goodman-capitol-police-video/2021/01/13/08ab3eb6-546b-11eb-
a931-5b162d0d033d_story.html.
127. Marc Fisher et al., The Four-Hour Insurrection, Wash.
Post (Jan. 7, 2021), https://www.washingtonpost.com/podcasts/
post-reports/four-hours-of-insurrection/; Lauren Leatherby et
al., How a Presidential Rally Turned Into a Capitol Rampage,
N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/
interactive/2021/01/12/us/capitol-mob-timeline.html.
128. Julia Jacobo, A visual timeline on how the attack on
Capitol Hill unfolded, ABC News (Jan. 10, 2021), https://
abcnews.go.com/US/visual-timeline-attack-capitol-hill-
unfolded/story?id=75112066.
129. Marc Fisher et al., The Four-Hour Insurrection, Wash.
Post (Jan. 7, 2021), https://www.washingtonpost.com/podcasts/
post-reports/four-hours-of-insurrection/.
130. Ibid.
131. Ellen Barry et al, Woman Killed in Capitol Embraced
Trump and QAnon, N.Y. Times (Jan. 7, 2021), https://
www.nytimes.com/2021/01/07/us/who-was-ashli-babbitt.html.
132. 6 Rep. Dan Killdee (@RepDanKildee), Twitter (Jan. 6,
2021, 2:52 PM), https://twitter.com/RepDanKildee/status/
1346907565482004495; Rose Minutaglio, Rep. Susan Wild On The
`Sheer Panic' She Felt In That Viral Photo, Elle (Jan. 7,
2021), https://newsopener.com/fashion/rep-susan-wild-on-the-
sheer-panic-she-felt-in-that-viral-photo/; CBS News, Video
Shows Members of Congress Taking Cover in House Gallery,
(Jan. 6, 2021), https://ft.cbsnews.com/video/video-shows-
members-of-congress-taking-cover-in-house-gallery-cbsnews-
special-report-2021-01-06/.
133. Haley Britzky, This Army Ranger-turned-Congressman was
last out of the House chamber during the Capitol riots, Task
and Purpose (Jan. 7, 2021), https://taskandpurpose.com/news/
jason-crow-army-ranger-capitol-riots/.
134. Ibid.
[[Page S937]]
135. CBS News, Video shows members of Congress taking cover
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cover-in-house-gallery-cbsnews-special-report-2021-01-06/.
136. Julia Jacobo, A visual timeline on how the attack on
Capitol Hill unfolded, ABC News (Jan. 10, 2021), https://
abcnews.go.com/US/visual-timeline-attack-capitol-hill-
unfolded/story?id=75112066.
137. 2 David K. Li & Ali Gostanian, Georgia Lawyer Said He
Kicked in Pelosi's Door, She Could've Been `Torn into Little
Pieces', NBC News (Jan. 19, 2021), https://www.nbcnews.com/
news/us-news/georgia-lawyer-said-he-kicked-pelosi-s-door-she-
could-n1254756.
138. Ashley Parker et al., How the Rioters Who Stormed the
Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15,
2021), https://www.washingtonpost.com/politics/pence-rioters-
capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b-
f1381ef3d207_story.html.
139. Peter Baker et al., Pence Reached His Limit with
Trump. It Wasn't Pretty, N.Y. Times (Jan. 12, 2021).
140. Lauren Leatherby et al., How a Presidential Rally
Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021),
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mob-timeline.html.
141. Maggie Haberman & Jonathan Martin, After the Speech:
What Trump Did as the Capitol Was Attacked, N.Y. Times (Feb.
13, 2021), https://www.nytimes.com/2021/02/13/us/politics/
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142. Lexi Lonas, Sasse says Trump was `delighted' and
`excited' by reports of Capitol, The Hill (Jan. 8, 2021),
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143. Sunlen Serfaty et al, As riot raged at Capitol, Trump
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144. Judge G. Michael Harvey, Special Agent James Soltes
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dc/case-multi-defendant/file/1364486/download; Alan Feurer &
Nicole Hong, `I Answered the Call of My President': Rioters
Say Trump Urged Them On, N.Y. Times (Jan. 17, 2021), https://
www.nytimes.com/2021/01/17/nyregion/protesters-blaming-trump-
pardon.html.
145. Dan Barry et al., `Our President Wants Us Here': The
Mob That Stormed the Capitol, N.Y. Times (Jan. 9, 2021),
https://www.nytimes.com/2021/01/09/us/capitol-rioters.html.
146. David Begnaud (@DavidBegnaud), Twitter (Jan. 15, 2021,
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1350254179218911232.
147. Kyle Cheney & Josh Gerstein, Judge orders Proud Boy
charged in Capitol riot held without bond, Politico (Feb. 10,
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insurrection-trump-468353.
148. Shelly Tan et al., How One of America's Ugliest Days
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149. Ibid.
150. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep.
on Constitutional Grounds for Presidential Impeachment 27
(Comm. Print 1974).
151. U.S. Const. amend. I.
152. Roth v. United States, 354 U.S. 476, 482 (1957).
153. Victoria L. Killion, The First Amendment: Categories
of Speech, CRS (Jan. 16, 2019), https://
crsreports.congress.gov/product/pdf/IF/IF11072.
154. Brandenburg v. Ohio, 395 U.S. 444 (1969).
155. Ibid.
156. Ibid.
157. Hess v. Indiana, 414 U.S. 105, 110 (1973).
158. Id. at 107.
159. Id. at 108-109.
160. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
161. Id. at 886.
162. Id. at 927.
163. Id. at 928.
164. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).
165. Cornell Law, GARCETTI v. CEBALLOS (No. 04-473), Legal
Inf. Inst. (May 30, 2006), https://www.law.cornell.edu/supct/
html/04-473.ZS.html.
166. Ibid.
167. Rosalind S. Helderman et al, `Trump said to do so':
Accounts of rioters who say the president spurred them to
rush the Capitol could be pivotal testimony, Wash. Post (Jan.
16, 2021), https://www.washingtonpost.com/politics/trump-
rioters-testimony/2021/01/16/01b3d5c6-575b-11eb-a931-
5b162d0d033d_story.html.
168. 167 Cong. Rec. S659 (daily ed. Feb. 11, 2021)
(statement of Mr. Manager Raskin), https://www.congress.gov/
117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.
169. Washington Papers, The Electoral Count for the
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170. National Archives, 2020 Electoral College Results,
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171. Mark Sherman, Associated Press, Biden clears Electoral
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172. Ibid.
173. John Wagner et al, Pence declares Biden winner of the
presidential election after Congress finally counts electoral
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174. William Cummings et al, By the numbers: President
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politics/elections/2021/01/06/trumps-failed-efforts-overturn-
election-numbers/4130307001/.
175. Matt Zapotosky & Devlin Barrett, Barr clears Justice
Dept. to investigate alleged voting irregularities as Trump
makes unfounded fraud claims, Wash. Post (Nov. 9, 2020),
https://www.washingtonpost.com/national-security/trump-
voting-fraud-william-barr-justice-department/2020/11/09/
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176. Jess Bravin & Sadie Gurman, Trump Pressed Justice
Department to Go Directly to Supreme Court to Overturn
Election Results, W.S. Journal (Jan. 23, 2021), https://
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department-leadership-to-boost-his-voter-fraud-claims-
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177. Michael Crowley et al, In his first one-on-one
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conspiracy theories, N.Y. Times (Dec. 23, 2020), https://
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178. Kadhim Shubber, William Barr Election Memo--November
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179. Katie Benner & Adam Goldman, Federal Prosecutors Push
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180. Kate Benner, Trump and Justice Dept. Lawyer Said to
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181. Ibid.
182. U.S. Const. art. II, Sec. 1, cl. 2.
183. Electoral Count Act, Pub.L. 49-90.
184. NCSL, The Electoral College, (Nov. 11, 2020), https://
www.ncsl.org/research/elections-and-campaigns/the-electoral-
college.aspx.
185. Peter Alexander et al, Trump invites Michigan GOP
lawmakers to White House after calling officials in key
county, NBC News (Nov. 19, 2020), https://www.nbcnews.com/
politics/2020-election/trump-called-michigan-republicans-
they-sought-rescind-their-certification-votes-n1248254.
186. Nick Niedzwiadek et al, After Trump meeting, Michigan
GOP leaders say Biden's win still stands, Politico (Nov. 20,
2020) https://www.politico.com/news/2020/11/20/michigan-gop-
dc-trump-election-438690; & Ursula Perano, Trump called
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election certification, Axios (Nov. 19, 2020), https://
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187. Anita Kumar & Gabby Orr, Inside Trump's pressure
campaign to overturn the election, Politico (Dec. 21, 2020),
https://www.politico.com/news/2020/12/21/trump-pressure-
campaign-overturn-election-449486.
188. Amy Gardner et al, Trump asks Pennsylvania House
speaker for help overturning election results, personally
intervening in a third state, Wash. Post (Dec. 8, 2020),
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189. Alison Durkee, Trump Campaign Assembling Alternate
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190. Deanna Paul, Republican Electors Cast Unofficial
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191. Rick Hasen, Trump Campaign Planning on Sending
Alternative Slate of Electors to Congress, Per Stephen
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192. Anita Kumar & Gabby Orr, Inside Trump's pressure
campaign to overturn the election, Politico (Dec. 21, 2020),
https://www.politico.com/news/2020/12/21/trump-pressure-
campaign-overturn-election-449486.
193. Amy Gardner, `I just want to find 11,780 votes': In
extraordinary hour-long call, Trump pressures Georgia
secretary of state to recalculate the vote in his favor,
Wash. Post (Jan. 3, 2021), https://www.washingtonpost.com/
politics/trump-raffensperger-call-georgia-vote/2021/01/03/
d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html.
194. The New York Times, Transcript: Mr. Trump's Phone Call
With Georgia Election Officials, N.Y. Times (Jan. 3, 2021),
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raffensperger-georgia-call-transcript.html.
195. Ibid.
196. Miles Parks, Georgia Election Official: Don't Let
Misinformation `Suppress Your Own
[[Page S938]]
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197. U.S. Const. art. II, Sec. 1.
198. Michael Schmidt, Trump Says Pence Can Overturn His
Loss in Congress. That's Not How It Works, N.Y. Times (Jan.
5, 2021), https://www.nytimes.com/2021/01/05/us/politics/
pence-trump-election.html.
199. Maggie Haberman & Katie Benner, Justice Dept. Asks
Judge to Toss Election Lawsuit Against Pence, N.Y. Times
(Dec. 31, 2020), https://www.nytimes.com/2020/12/31/us/
politics/justice-department-mike-pence-louie-gohmert.html.
200. Caroline Linton, Judge dismisses Gohmert's attempt to
force Pence to decide election results, CBS (Jan. 3, 2021),
https://www.cbsnews.com/news/louie-gohmert-trump-election-
lawsuit-pence-dismissed-federal-judge/.
201. Nick Niedzwiadek & Kyle Cheney, Trump pressures Pence
to throw out election results--even though he can't, Politico
(Jan. 5, 2021), https://www.politico.com/news/2021/01/05/
trump-pressures-pence-election-results-455069.
202. Ibid.
203. Josh Dawsey & Ashley Parker, Inside the remarkable
rift between Donald Trump and Mike Pence, Wash. Post (Jan.
11, 2021), https://www.washingtonpost.com/politics/trump-
pence-breakuo-capitol-riot/2021/01/11/6a6aa052-5357-11eb-
89bc-7f51ceb6bd57_story.html.
204. Ibid.
205. Jeff Mason, Despite Trump pressure, Pence will not
block Biden's election certification: advisers, Reuters (Jan.
4, 2021), https://www.reuters.com/article/us-usa-election-
pence/despite-trump-pressure-pence-will-not-block-bidens-
election-certification-advisers-idUSKBN29A2J0.
206. Quint Forgey, `Do it Mike': Trump leans on Pence to
reject Biden's Electoral College certification, Politico
(Jan. 6, 2021), https://www.politico.com/news/2021/01/06/do-
it-mike-trump-leans-on-pence-to-reject-bidens-electoral-
college-certification-455319.
207. Ashley Collman, Trump is still wrongly insisting that
Pence can change the election result, and he called a New
York Times report that said otherwise `fake news', Bus.
Insider (Jan. 6, 2021), https://www.businessinsider.com/
trump-wrongly-insisting-pence-can-overturn-election2021-1.
208. Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part
Of Impeachment Trial, NPR (Feb. 10, 2021), https://
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key-part-of-impeachment-trial.
209. John Haltiwaner, Trump attacks Pence for not having
the `courage' to overturn the election as the president's
supporters storm the Capitol, Bus. Insider (Jan. 6, 2021),
https://www.businessinsider.com/trump-attacks-pence-for-not-
having-courage-to-overturn-election-2021-1.
210. https://www.congress.gov/117/crec/2021/02/10/CREC-
2021-02-10-pt1-PgS615-4.pdf (S626).
211. Paul Kane & Scott Clement, Just 27 congressional
Republicans acknowledge Biden's win, Washington Post survey
finds, Wash. Post (Dec. 5, 2020), https://
www.washingtonpost.com/politics/survey-who-won-election-
republicans-congress/2020/12/04/1a1011f6-3650-11eb-8d38-
6aea1adb3839_story.html.
212. Anita Kumar & Gabby Orr, Inside Trump's pressure
campaign to overturn the election, Politico (Dec. 21, 2020),
https://www.politico.com/news/2020/12/21/trump-pressure-
campaign-overturn-election-449486.
213. Ibid.
214. Daniella Diaz, READ: Brief from 126 Republicans
supporting Texas lawsuit in Supreme Court, CNN (Dec. 11,
2020), https://www.cnn.com/2020/12/10/politics/read-house-
republicans-texas-supreme-court/index.html.
215. Adam Liptak, Supreme Court Rejects Texas Suit Seeking
to Subvert Election, N.Y. Times (Dec. 11, 2020), https://
www.nytimes.com/2020/12/11/us/politics/supreme-court-
election-texas.html.
216. Andrew Solender, Nearly a Dozen Republican Senators
Will Object to Electoral College Vote, Forbes (Jan. 2, 2021),
https://www.forbes.com/sites/andrewsolender/2021/01/02/
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217. Jake Tapper, At least 140 House Republicans to vote
against counting electoral votes, two GOP lawmakers say, CNN
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electoral-college-house-republicans/index.html.
218. Dareh Gregorian, Congress is set to count the Trump-
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election/congress-set-count-trump-biden-electoral-college-
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219. Meryl Kornfield, From a presidential commission to
Trump-nominated judges, here's who has rebuked Trump's voter
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220. GCC et al, Joint Statement from Elections
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statement-elections-infrastructure-government-coordinating-
council-election.
221. Katie Benner & Michael S. Schmidt, Barr Acknowledges
Justice Dept. Has Found No Widespread Voter Fraud, N.Y. Times
(Dec. 1, 2020), https://www.nytimes.com/2020/12/01/us/
politics/william-barr-voter-fraud.html.
222. The Avalon Project, Madison Debates, Yale Law School
Lillian Goldman Law Library (Jul. 20, 1787), https://
avalon.law.yale.edu/18th_century/debates_720.asp.
223. Id. at 64.
224. Ibid.
225. U.S. Const. amend. XX, Sec. 1.
226. Sara Georgini, How John Adams Managed a Peaceful
Transition of Presidential Power, Smithsonian Mag. (Dec. 7,
2020), https://www.smithsonianmag.com/history/how-john-adams-
managed-peaceful-transition-presidential-power-180976451/.
227. 167 Cong. Rec. S627 (daily ed. Feb. 11, 2021)
(statement of Mr. Manager Lieu), https://www.congress.gov/
117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf (S627).
228. The Federalist Paper No. 47 (James Madison) (Jacob E.
Cooke ed., 1961).
229. See generally The Federalist Paper No. 47 (James
Madison) (Jacob E. Cooke ed., 1961); The Federalist Paper No.
48 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist
Paper No. 49 (James Madison) (Jacob E. Cooke ed., 1961); The
Federalist Paper No. 50 (James Madison) (Jacob E. Cooke ed.,
1961; The Federalist Paper No. 51 (James Madison) (Jacob E.
Cooke ed., 1961). (Federalist Papers No. 47 through No. 51
explain how the Executive, Legislative, and Judicial Branches
were to be wholly separated from each other, yet accountable
to each other through a system of checks and balances.); See
also Nixon v. Administrator of General Services, 433 U.S.
425, 426 (1977). (In Nixon v. GSA, the Supreme Court
articulated the test for a violation of the separation of
powers as occurring when the action of one branch ``prevents
[another branch] from accomplishing its constitutionally
assigned functions.'')
230. U.S. Const. art. II, Sec. 3.
231. 167 Cong. Rec. S641-S643 (daily ed. Feb. 10, 2021)
(statement of Mr. Manager Castro), https://www.congress.gov/
117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf.
232. 167 Cong. Rec. S641-S642 (daily ed. Feb. 10, 2021)
(statement of Mr. Manager Castro). https://www.congress.gov/
117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf (S641-
S642).
233. 167 Cong. Rec. S642 (daily ed. Feb. 10, 2021)
(statement of Mr. Manager Castro). https://www.congress.gov/
117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf.
234. Matt Stieb, Pence, Not Trump, Gave Order to Activate
National Guard: Report, Intelligencer, N.Y. Mag. (Jan. 6,
2021), https://nymag.com/intelligencer/2021/01/pence-not-
trump-activated-the-national-guard-report.html.
235. U.S. Const. art. II, Sec. 1, cl. 8.
236. 167 Cong. Rec. S662 (daily ed. Feb. 11, 2021)
(statement of Mr. Manager Raskin). https://www.congress.gov/
117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.
Ms. COLLINS. Mr. President, the Senate was asked to decide whether
this body has the constitutional jurisdiction to hold an impeachment
trial of Donald Trump now that he is no longer President of the United
States. While the Constitution does not explicitly address Congress'
jurisdiction when the subject of impeachment is a former President--or
any former officer--its text and purpose as applied to the facts in
this matter support the conclusion that the trial should proceed.
The question of Senate jurisdiction should start with the text of the
Constitution itself. The impeachment process is described in article I,
which delineates the respective powers of the House of Representatives
and the Senate. Section 2 plainly states that the House ``shall have
the sole power of impeachment.'' In this matter, there is no dispute
that impeachment occurred before former President Trump's term expired,
and, therefore, there is no dispute that the House had jurisdiction to
impeach him.
What is at issue is whether the impeachment trial can occur in the
Senate now that former President Trump is no longer in office. Again, I
look to the text of article I. Section 3 states that ``the Senate shall
have the sole Power to try all Impeachments.'' As former Federal
circuit court Judge Michael McConnell has observed, the key word here
is ``all.'' Sections 2 and 3 read together lead to the inescapable
conclusion that, if the House presents the Senate with a valid
impeachment article, the Senate has jurisdiction to conduct the trial.
Some have argued that such an interpretation would put all former
Presidents, Vice Presidents, and office holders dating back to the
Washington administration at risk of being impeached and convicted, but
the facts in this matter do not require such a sweeping conclusion. By
asserting its jurisdiction over this trial, the Senate is simply ruling
that a President who was impeached while still in office can be tried
after he is no longer in office--nothing more.
The former President's attorneys argue that the Senate does not have
jurisdiction to conduct a trial because the penalty prescribed for
conviction
[[Page S939]]
under article II, section 4, is removal from office. Because former
President Trump cannot be removed, they argue that the Constitution
requires he not be tried. But article I, section 4, authorizes the
Senate to impose the penalty of permanent disqualification from holding
office in the future if it chooses to do so. And, notably, a vote on
whether or not to disqualify can only be taken after conviction, at
which point any defendant would have been removed and no longer an
office holder.
If the defense's argument were to be followed to its logical
conclusion, it would lead to a constitutional absurdity--the Senate
would have the sole power to apply the disqualification penalty, but it
would never have jurisdiction to do so. If the Senate were unable to
consider disqualification after a President is no longer in office, the
second penalty would lose its meaning. A more sensible reading of
article I, section 4, is that both punishments, removal and
disqualification, are equally significant, and therefore, the Senate
has jurisdiction in this matter.
For all the reasons I have set forth, I believe that the Senate must
exercise jurisdiction, and I voted to begin its impeachment
proceedings.
Mr. CASEY. Mr. President, I ask unanimous consent that the following
statement regarding the impeachment trial of the former President be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement on the Second Impeachment Trial of the Former President
Mr. CASEY. Mr. President. The former President's conduct
during and after the 2020 Presidential election was
indefensible and dangerous. By inciting an insurrection
against Congress and pressuring government officials across
our Nation to overturn the election in his favor, the former
President directly ``threatened the integrity of the
democratic system, interfered with the peaceful transition of
power, and imperiled a coequal branch of Government.''\1\ As
long as he is able to hold public office under the United
States, he will remain a grave threat to our national
security and our Constitution. For these reasons, I again
voted to convict the former President on the House of
Representatives' Article of Impeachment.
Constitutionality of the Trial
As a threshold question in this trial, the former
President's legal team and several Republican Senators have
argued that the Senate cannot hold an impeachment trial
against a President who is no longer in office.\2\ This
argument is just another convenient excuse for some of my
Republican colleagues to avoid holding the former President
accountable. Not only has the theory been roundly rejected by
both liberal and conservative constitutional legal
scholars,\3\ it would also completely contravene both Senate
and historical precedent.\4\ In this case, consistent with
the prevailing legal theory and historical precedent, the
Senate voted to affirm the constitutionality of this current
trial--a decision that I fully supported.\5\ Thus, after
addressing the threshold Constitutional issue, the question
before every Senator in this trial became twofold--(1) did
the former President do what he is charged with in the
Article?; and (2) if so, does that action warrant conviction
and disqualification from holding future office?
The Big Lie Debunked
The public record demonstrates clearly that the former
President engaged in the conduct outlined in the Article of
Impeachment put forward by the House of Representatives. We
watched his actions with our own eyes. We heard his
conspiracy theories and baseless accusations with our own
ears. For months after the election, all of America witnessed
the former President's deliberate repetition of the ``Big
Lie;'' he repeatedly claimed--without any evidence--that the
2020 general election was rigged and stolen from him.\6\ In
furtherance of this falsehood, the former President has made
numerous claims, all easily and consistently rebutted,
regarding the votes cast in multiple battleground states. As
the Senior Senator from Pennsylvania, a state that the former
President relentlessly attacked after the election, I believe
it is important to debunk the numerous false statements that
the former President asserted regarding the Pennsylvania
Presidential election.
Prior to the election, it was widely reported that the
public should ``beware'' of early U.S. election tallies
because of the unprecedented amount of mail-in voting and the
different ways that states were processing ballots due to the
COVID-19 pandemic.\7\ In Pennsylvania specifically,
Democratic voters were outpacing Republican voters by a 3-to-
1 ratio in mail-in voting.\8\ Since the mail-in votes would
be the last to be counted in most counties, experts cautioned
voters that the former President might appear to be winning
in the early returns on election night (a ``Red mirage'')
only to lose that lead as election officials counted more
mail-in ballots in the days after Election Day (a ``Blue
shift'').\9\
Despite these warnings, the former President attempted to
sow doubt, even before Election Day, about votes counted
after November 3. A week before Election Day, he indicated
that ``counting ballots for two weeks'' after Election Day
was ``totally inappropriate'' and he did not believe it was
consistent with our Nation's election laws.\10\ To be clear,
there is nothing improper or illegal about election officials
counting legally cast votes after Election Day. Nonetheless,
as election officials in Pennsylvania began to process the
heavily Democratic-leaning mail-in ballots in the days
following Election Day and the former President's ``Red
mirage'' predictably turned to a ``Blue shift'' in favor of
President Biden, the former President claimed that officials
were ``finding Biden votes all over the place.''\11\ In
reality, election officials in Pennsylvania were simply
counting legally cast votes. As Republican Philadelphia
Commissioner Al Schmidt said: ``In the birthplace of our
Republic, counting votes is not a bad thing. Counting votes
cast on or before Election Day by eligible voters is not
corruption. It is not cheating. It is democracy.''\12\
Relatedly, the former President also claimed that in
Pennsylvania, ``tens of thousands of votes were illegally
received after 8 P.M. on Tuesday, Election Day, totally and
easily changing the results.''\13\ Here again, the former
President was lying. In September 2020, the Pennsylvania
Supreme Court extended the mail-in ballot receipt deadline in
Pennsylvania by three days because of the unprecedented
circumstances caused by the COVID-19 pandemic.\14\ The
Pennsylvania Supreme Court's decision did not permit eligible
voters to vote after Election Day. Rather, pursuant to the
Free and Equal Elections Clause of the Pennsylvania
Constitution, the court explained that ballots mailed by
Election Day could still be counted if those ballots were
received within three days of Election Day.\15\ In addition
to lying about whether it was legal to receive ballots after
Election Day, the former President drastically overinflated
the number of ballots received after Election Day in
Pennsylvania. In fact, there were only approximately ten
thousand ballots received after Election Day and those
ballots were not even included in Pennsylvania's certified
election results.\16\ Since President Biden won Pennsylvania
by over eighty thousand votes, the ballots received after
Election Day would not have made any difference in
Pennsylvania's Presidential election outcome.\17\
In another tweet, the former President claimed that
Pennsylvania prevented his campaign officials ``from watching
much of the Ballot count.''\18\ Again, the former President
was lying. In fact, in response to a judge's question during
one hearing on whether there were election observers in the
canvassing room, a lawyer representing the former President
offered the seemingly bizarre concession that there was ``a
non-zero number of people in the room.''\19\ Furthermore,
multiple courts confirmed that the former President's
campaign presented no evidence suggesting that his campaign's
observers were treated any differently than the observers for
the Biden Campaign.\20\
The former President's lies did not stop there. In late
November, the former President tweeted that over a million
votes in Pennsylvania were ``created out of thin air.''\21\
This is a lie. Here, the former President was referring to a
conspiracy theory offered by Republican State Senator Doug
Mastriano, who claimed that the Pennsylvania Department of
State was reporting an extra 1.1 million mail-in votes in
Pennsylvania.\22\ Senator Mastriano indicated that
Pennsylvania had reported mailing out ``1,823,148 ballots, of
which 1,462,302 were returned,'' but he indicated that a
dashboard on the Department of State's website recorded over
2.5 mail-in ballots in the general election.\23\ While
Senator Mastriano did not include sources for his data, it
was easy to determine that he was conflating different
datasets from the general election and the June primaries. A
dataset from the Pennsylvania Department of State clearly
detailed that there were 1,823,148 mail-in ballot request for
the June 2020 primaries\24\--the exact number that Senator
Mastriano cited--while Pennsylvania's official returns for
the 2020 general election clearly illustrated that over 2.6
million voters cast a ballot by mail in the Presidential
election.\25\
In another tweet on December 28, the former President
claimed that there were ``205,000 more votes than there were
voters'' in Pennsylvania.\26\ This too is another lie. Again,
the former President appeared to be referencing yet another
conspiracy theory offered by another state legislator,
Representative Frank Ryan.\27\ Representative Ryan claimed
that the official election returns included 205,000 more
votes than those listed in Pennsylvania's voter registration
database.\28\ Pennsylvania Attorney General Josh Shapiro
explained that the voter registration database referenced by
Representative Frank ``is updated by each county
individually, and this updating process can take several
weeks following an election.''\29\ Thus, the Attorney General
explained that it appeared that Representative Ryan was
comparing ``the official returns with incomplete data from
the registration database to justify his baseless claim that
there were more votes than voters.''\30\
Unfortunately, the above lies are merely a sampling of the
former President's total lies about the election process in
Pennsylvania and across the Nation. In addition to these
[[Page S940]]
falsehoods, the former President claimed--without evidence--
that there were ``900,000 Fraudulent Votes'' in
Pennsylvania,\31\ that Dominion Voting Systems switched
221,000 votes from the former President to Joe Biden in
Pennsylvania,\32\ and that ``Fraud and illegality'' were a
``big part'' of his election lawsuits in Pennsylvania.\33\
The Pennsylvania election was administered safely and
securely by thousands of Republican and Democratic election
officials and selfless volunteers across the Commonwealth. We
know this because as the House Managers highlighted in their
trial brief, ``[o]ur legal system affords many ways in which
a candidate can contest the outcome of an election.''\34\ The
former President did not merely contest the election in
Pennsylvania, but also in Arizona, Georgia, Michigan, Nevada,
and Wisconsin.\35\ In total, the former President and his
allies filed 62 lawsuits in state and federal courts
regarding the 2020 election and they lost every case, except
for one minor lawsuit in Pennsylvania.\36\
Furthermore, despite the President's public claims of
widespread illegalities, his legal team rarely attempted to
allege fraud in his lawsuits.\37\ In fact, his own attorney,
Rudy Giuliani, explicitly confirmed that the Campaign was not
alleging fraud during one high profile case in Pennsylvania
by stating ``[t]his is not a fraud case.''\38\ Despite these
facts, the former President continued to spread a different
narrative--a Big Lie regarding a rigged election--on Twitter.
United States District Court Judge Matthew Brann of the
Middle District of Pennsylvania highlighted the absurdity of
some of the former President's legal arguments in an opinion
dismissing one of the Campaign's lawsuits:
``Plaintiffs ask this Court to disenfranchise almost seven
million voters. . . . One might expect that when seeking such
a startling outcome, a plaintiff would come formidably armed
with compelling legal arguments and factual proof of rampant
corruption, such that this Court would have no option but to
regrettably grant the proposed injunctive relief despite the
impact it would have on such a large group of citizens. That
has not happened. Instead, this Court has been presented with
strained legal arguments without merit and speculative
accusations, unpled in the operative complaint and
unsupported by evidence. In the United States of America,
this cannot justify the disenfranchisement of a single voter,
let alone all the voters of its sixth most populated state.
Our people, laws, and institutions demand more.''\39\
In the Campaign's appeal to the United States Court of
Appeals for the Third Circuit, Judge Stephanos Bibas, a judge
appointed by the former President,\40\ wrote for a unanimous
panel affirming Judge Brann's initial decision.\41\ Judge
Bibas wrote: ``Free, fair elections are the lifeblood of our
democracy. Charges of unfairness are serious. But calling an
election unfair does not make it so. Charges require specific
allegations and then proof. We have neither here.''\42\ The
Presidential election was fair and lawful notwithstanding the
many lies told by the former President.
The Former President's Pattern of Conduct
Despite losing case after case in federal and state courts,
the former President was not deterred in his efforts to
spread his Big Lie regarding a stolen election. Instead, he
turned his attention to pressuring federal, state and local
elections officials to overturn the election. In Georgia, he
personally called the Secretary of State, Brad Raffensperger,
and told him to ``find 11,780 votes, which is one more than
we have because we won the state.''\43\
He also began an aggressive lobbying campaign against Vice
President Pence.\44\ Pursuant to the Twelfth Amendment, the
Vice President counts each state's certified Electoral
College votes for President in a joint session of
Congress.\45\ However, the former President regularly lied
about the constitutional duty of the Vice President. In
another attempt to turn the election in his favor through
illegitimate means, the former President suggested that Vice
President Pence should violate his oath of office by refusing
to count certain electoral votes for President Biden during
the joint session.\46\
After failing to overturn the election through the courts
and his pressure campaign on other elected officials, the
former President took aim for one more attack on American
democracy. He summoned his mob of insurrectionists to
Washington, D.C. on January 6, 2021 for a ``Save America
Rally'' to coincide with the joint session of Congress.\47\
He invited them. He incited them over the course of months
and on January 6. Finally, he directed this Trump mob to the
Capitol to subvert and obstruct Congress from conducting its
constitutional obligation to certify the 2020 Presidential
election.
On January 6, we heard the former President continue to
spread his Big Lie at his rally. As Attorney General Shapiro
detailed, the former President ``inflamed the crowd by
repeating the same debunked allegations about voter fraud in
Pennsylvania and elsewhere. In his remarks, he repeated no
fewer than eight false statements about Pennsylvania's
elections alone.'' \48\ He further incited the mob to ``stop
the steal'' by declaring that ``we fight, we fight like
hell,'' because ``if you don't fight like hell you're not
going to have a country anymore.'' \49\
The case for incitement is about far more than just the
former President's speech on January 6. This was about a
pattern of conduct. It was about the former President's
autocratic leadership and calls for political violence
throughout his Presidency. It was about a President who once
bragged: ``I have the tough people [supporting me], but they
don't play it tough until they go to a certain point, and
then it would be very bad, very bad.'' \50\
I, as well as public officials in both parties, talk about
fighting for public policy goals. We fight for health care.
We fight for civil rights. We fight for equity and justice.
However, when the former President tells his supporters to
fight, it means something different because the former
President has regularly condoned and encouraged violence
against protestors and members of the press since he became a
candidate in 2015. As Lead House Manager Jamie Raskin told us
during the trial: ``January 6 was a culmination of the
President's actions--not an aberration from them.''\51\ It
was the former President's pattern and practice of condoning
and encouraging violent action.
For example, during remarks in October 2015, the former
President--then a candidate--indicated that he would be a
``little more violent'' next time protestors interrupted one
of his rallies.\52\ Video later showed the former President's
supporters forcibly dragging protestors out of the campaign
event.\53\ In a February 2016 rally in Cedar Rapids, Iowa, we
saw the former President tell his supporters to ``knock the
hell'' out of protestors and then promised to pay their legal
fees resulting from any altercation.\54\
In March 2016, a supporter of the former President sucker
punched a Black man being escorted out of a campaign
rally.\55\ The former President's supporter was later
recorded as saying ``[t]he next time we see him, we might
have to kill him.'' \56\ Just days later, the former
President defended those at his rallies assaulting protestors
by calling their actions ``very, very appropriate.'' \57\ In
another 2016 rally in Las Vegas, the former President
commented that he would like to ``punch [a protestor] in the
face'' before reminiscing about the fictional ``old days''
when violent behavior was allegedly more acceptable.\58\
``You know what they used to do to guys like that when they
were in a place like this?'' he asked the crowd. ``They'd be
carried out on a stretcher, folks.''\59\
This abhorrent behavior did not change when the former
President entered office. In August 2017, after a rally of
white supremacists resulted in three deaths and more than 33
other injuries in Charlottesville, Virginia, the former
President offered perhaps the most disturbing comments of his
Presidency when he suggested that there was ``blame on both
sides'' and that there were ``very fine people on both
sides.''\60\ In October 2018, we saw the former President
praise and glorify the actions of current Governor of
Montana, Greg Gianforte, after then-candidate Gianforte had
body slammed and hospitalized a journalist in May 2017.\61\
Mr. Gianforte had already pled guilty to the assault.\62\
In 2020, the former President further glorified violence by
indicating that ``when the looting starts, the shooting
starts'' in relation to the civil rights protests occurring
after George Floyd's murder at the hands of law enforcement
in Minneapolis, Minnesota.\63\ Later, we saw the former
President direct federal agents to forcibly move hundreds of
peaceful protestors outside of the White House so he could
pose for a photo op in front of St. John's Church in
Washington, D.C.\64\
In April 2020, in what turned out to be a dress rehearsal
for the January 6 insurrection, we saw the former President
tweet ``LIBERATE MICHIGAN!'' after the Governor of Michigan
implemented several mitigation measures to address the COVID-
19 public health crisis.\65\ Nearly two weeks later, on April
30, armed protestors dressed in tactical gear sieged the
Michigan State Capitol, waving the Confederate flag and
wearing MAGA hats.\66\ Rather than condemn those who had
seized the state capitol waving Confederate flags, the former
President encouraged the Governor of Michigan to negotiate
with them: ``The Governor of Michigan should give a little,
and put out the fire. These are very good people, but they
are angry. They want their lives back again, safely! See
them, talk to them, make a deal.''\67\ Just a few months
following the capitol siege in Michigan, the FBI arrested
thirteen men for ``plotting to storm the Michigan State
capitol building, launch a civil war, kidnap Governor
Whitmer, transport her to Wisconsin, and then try and execute
her.'' \68\
The former President's pattern of conduct is indisputable.
A reasonable person cannot dispute that the former President
knew exactly what he was doing by perpetuating the ``Big
Lie,'' summoning his crowd of insurrectionists on January 6
and telling them: ``[I]f you don't fight like hell, you're
not going to have a country anymore.'' \69\ The former
President led his supporters to a breaking point and as he
had predicted in the past--it was ``very bad, very bad.''
\70\ There is simply no way to excuse the former President's
actions in this case.
An Attack on Our Democracy
By encouraging his mob of insurrectionists to march on the
Capitol and obstruct the Congressional certification of the
2020 election, the former President attacked the foundational
principles of our democracy and the peaceful transfer of
power. He did not merely endanger another branch of
government and the Presidential line of succession. His
actions led to at least five deaths,
[[Page S941]]
injuries to nearly 140 members of law enforcement and untold
collateral damage resulting from the carnage of that day.\71\
He endangered the lives of countless Congressional staffers
and employees, members of the press and members of Congress.
He put a target on the back of his own Vice President and his
Vice President's family. His actions jeopardized our Nation's
national security by tarnishing the United States' reputation
abroad and emboldening violent extremists at home.
Furthermore, he has shown absolutely no remorse for any of
it, even going as far to glorify the insurrection in the
immediate aftermath of the attack. After the Capitol had been
secured in the early evening of January 6 and Congress was
making plans to resume its joint session, the former
President turned to Twitter to release a statement. He did
not denounce the violent insurrection, but rather he chose to
continue to spread his Big Lie that the election was stolen
from him and to call the insurrectionists ``great patriots:''
``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.'' \72\
Ultimately, after carefully reviewing all of the evidence
put forward in this case, I found that the House Managers
more than exceeded their burden of proof. The former
President's conduct violated his oath of office, endangered
our democracy and jeopardized the United States' national
security. Through this conduct, the former President
committed a high crime against our Constitution. I voted to
convict him in the most bipartisan Presidential impeachment
proceedings in our Nation's history.\73\
endnotes
1. H.R. Res. 24, 117th Cong. art. I (2020).
2. Proceedings of the United States Senate in the
Impeachment Trial of Donald John Trump, S. Doc. No. 117-2, at
122--46 (2021) [hereinafter ``Impeachment Proceedings II'']
(Trial Memorandum of Donald J. Trump, 45th President of the
United States of America). See also Nicholas Fandos,
Republicans Rally Against Impeachment Trial, Signaling
Likely Acquittal for Trump, N.Y. Times (Jan. 26, 2021),
https://www.nytimes.com/2021/01/26/us/politics/
republicans-impeachment-trump.html (``By a vote of 55-to-
45, the Senate narrowly killed a Republican effort to
dismiss the proceeding as unconstitutional because Mr.
Trump is no longer in office.'').
3. See Ilya Somin, Legal Scholars' Letter on Impeachment of
Former Officials Makes Appearance in Trump's Senate Trial,
Volokh Conspiracy (Feb. 9, 2021, 3:10 PM), https://
reason.com/volokh/2021/02/09/legal-scholars-letter-on-
impeachment-of-former-officials-makes-appearance-in/
(highlighting one letter signed by ``constitutional law
scholars across the political spectrum,'' including the co-
founder of the Federalist Society).
4. Impeachment Proceedings II, supra note 2, at 48-97
(Trial Memorandum of the United States House of
Representatives).
5. 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021).
6. See Larry Buchanan et al., Lie After Lie: Listen to How
Trump Built His Alternate Reality, N.Y. Times (Feb. 9, 2021)
(``In hundreds of public statements from Nov. 4, 2020, to
Jan. 6, 2021, Mr. Trump repeatedly used phrases like `we won
the election' and `won it by a landslide,' and he said that
the election was `rigged' and `stolen' by the Democrats. Such
assertions have been proven false by the courts and elections
officials across the country.'').
7. Chris Kahn & Jason Lange, Explainer: Red Mirage, Blue
Mirage--Beware of Early U.S. Election Wins, Reuters (Nov. 1,
2020, 6:12 AM), https://www.reuters.com/article/us-usa-
election-mirage-explainer-idUSKBN27H1A6; David Wasserman,
Beware the ``Blue Mirage'' and the ``Red Mirage'' on Election
Night, NBC News (Nov. 3, 2020, 8:27 AM), https://
www.nbcnews.com/politics/2020-election/beware-blue-mirage-
red-mirage-election-night-n1245925.
8. Pennsylvania Could See a ``Red Mirage'' on Election
Night. Here's Why, 6abc (Oct. 29, 2020), https://6abc.com/
pennsylvania-vote-count-in-red-mirage-mail-in-voting/
7455361/. See also Holly Otterbein, Democrats Return Nearly
Three Times as Many Mail-In Ballots as Republicans in
Pennsylvania, Politico (Nov. 3, 2020, 1:31 PM), https://
www.politico.com/news/2020/11/03/democrats-more-mail-in-
ballots-pennsylvania-433951 (explaining that on Election Day,
more than 1.6 million of returned mail-in ballots were from
registered Democrats and 586,000 were from Republicans).
9. Brittany De Lea, ``Red Mirage'' Possible in Pennsylvania
as Officials Urge Voters to be Patient, Fox News (Nov. 1,
2020), https://www.foxnews.com/politics/pennsylvania-red-
mirage-officials-voter-patience; Jonathan Lai, How Does a
Republican Lead on Election Night and Still Lose
Pennsylvania? It's Called the ``Blue Shift,'' Phila. Inquirer
(Jan. 27, 2020), https://www.inquirer.com/politics/election/
pennsylvania-2020-election-blue-shift-20200127.html.
10. Jeff Mason & Ernest Scheyder, Trump Questions Counting
Late Ballots as Biden Preaches Unity in Georgia, Reuters
(Oct. 27, 2020, 10:46 AM), https://www.reuters.com/article/
usa-election-idUSKBN27C25G.
11. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 4,
2020, 11:55 AM), https://twitter.com/realdonaldtrump/status/
1324032541544927233. See also Trump Twitter Archive V2,
https://www.thetrumparchive.com/ (last visited March 1, 2021)
(archiving all of the former President's tweets).
12. Bill Whitaker, ``It is Not Cheating, It is Democracy'':
A First-Hand Look at Ballot Counting in Pennsylvania, CBS
News: 60 Minutes (Nov. 9, 2020), https://www.cbsnews.com/
news/pennsylvania-ballot-counting-2020-election-60-minutes/.
13. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 7,
2020, 8:20 AM), https://twitter.com/realdonaldtrump/status/
1325065540390559745. See also Trump Twitter Archive V2, supra
note 11.
14. Pennsylvania Democratic Party v. Boockvar, 238 A.3d
345, 369-72 (Pa. 2020)..
15 Id.
16. Memorandum from Pa. Att'y Gen. Josh Shapiro 7 (Feb. 10,
2021), https://www.attorneygeneral.gov/wp-content/uploads/
2021/02/Jan-6-Memo.pdf [hereinafter ``Att'y Gen. Shapiro
Memo''].
17 Id.
18. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 9,
2020, 3:17 PM), https://twitter.com/realdonaldtrump/status/
1325895380983275524. See also Trump Twitter Archive V2, supra
note 11.
19. Katelyn Polantz et al., Trump and GOP Lawsuits
Challenging Election Flail in Court, CNN (Nov. 6, 2020, 3:01
AM), https://www.cnn.com/2020/11/06/politics/trump-and-gop-
lawsuits-to-challenge-election-flail-in-court/index.html.
20. E.g., Donald J. Trump for President, Inc. v. Boockvar,
No. 4:20-CV-02078, 2020 WL 6821992, at *13 (M.D. Pa. Nov. 21,
2020), aff'd, 830 F. App'x 377 (3d Cir. 2020); 830 F. App'x
377 at 388.
21. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 28,
2020, 12:09 AM), https://twitter.com/realdonaldtrump/status/
1332552283553476608. See also Trump Twitter Archive V2, supra
note 11.
22. Senator Doug Mastriano (@SenMastriano), Twitter (Nov.
27, 2020, 1:59 PM), https://twitter.com/senmastriano/status/
1332398733401591808. See also Fact Check: Post Mixes
Pennsylvania Primary and General Election Data to Suggest
Vote-By-Mail Irregularities, Reuters (Dec. 1, 2020, 11:38
AM), https://www.reuters.com/article/uk-fact-check-pa-mail-
votes-primary-gene-idUSKBN28B5NW [hereinafter ``Reuters Fact
Check''] (debunking State Senator Mastriano's claims).
23. Id.
24. 2020 Primary Mail Ballot Counts by County, OpenDataPA,
https://data.pa.gov/Government-Efficiency-Citizen-Engagement/
2020-Primary-Mail-Ballot-Counts-by-County/43wz-2ph2 (last
updated Aug. 3, 2020). See also Reuters Fact Check, supra
note 22 (debunking State Senator Mastriano's claims).
25. 2020 Presidential Election Official Return, Pa. Dep't
of State, https://www.electionreturns.pa.gov/ (last visited
Mar. 1, 2021). See also Reuters Fact Check, supra note 22
(debunking State Senator Mastriano's claims).
26. Donald J. Trump (@realdonaldtrump), Twitter (Dec. 28,
2020, 4:00 PM), https://twitter.com/realdonaldtrump/status/
1343663159085834248. See also Trump Twitter Archive V2, supra
note 11.
27. Press Release, Pa. State Rep. Frank Ryan et al., PA
Lawmakers: Numbers Don't Add Up, Certification of
Presidential Results Premature and In Error (Dec. 28, 2020),
http://www.repfrankryan.com/News/18754/Latest-News/PA-
Lawmakers-Numbers-Don't-Add-Up,-Certification-of-
Presidential-Results-Premature-and-In-Error. See also Ali
Swenson, There Were Not More Votes Than Voters in
Pennsylvania, Associated Press (Dec. 29, 2020), https://
apnews.com/article/fact-checking-9887147615 (debunking State
Representative Ryan's election claims).
28. Id.
29. Att'y Gen. Shapiro Memo, supra note 16, at 6.
30. Id. at 6-7
31. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 21,
2020, 11:54 PM), https://twitter.com/realdonaldtrump/status/
1330374020613758977. See also Trump Twitter Archive V2, supra
note 11.
32. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 12,
2020, 11:34 AM), https://twitter.com/realdonaldtrump/status/
1326926226888544256. See also Trump Twitter Archive V2, supra
note 11.
33. Donald J. Trump (@realdonaldtrump), Twitter (Nov. 28,
2020, 3:49 PM), https://twitter.com/realdonaldtrump/status/
1332788716818010114. See also Trump Twitter Archive V2, supra
note 11.
34. Impeachment Proceedings II, supra note 2, at 29 (Trial
Memorandum of the United States House of Representatives).
35. Id.
36. Id.
37. Tessa Berenson, Donald Trump And His Lawyers Are Making
Sweeping Allegations of Voter Fraud In Public. In Court, They
Say No Such Thing, Time (Nov. 20, 2020, 3:13 PM), https://
time.com/5914377/donald-trump-no-evidence-fraud/.
38. Id.
39. Donald J. Trump for President, Inc. v. Boockvar, No.
4:20-CV-02078, 2020 WL 6821992, at *1 (M.D. Pa. Nov. 21,
2020), aff'd, 830 F. App'x 377 (3d Cir. 2020).
40. Press Release, White House, Eleven Nominations Sent to
the Senate Today (June 19, 2017), https://
trumpwhitehouse.archives.gov/presidential-actions/eleven-
nominations-sent-senate-today-3/.
41. Trump for President, 830 F. App'x at 391.
42. Id. at 381.
43. Impeachment Proceedings II, supra note 2, at 32 (Trial
Memorandum of the United States House of Representatives).
[[Page S942]]
44. Id. at 40-42.
45. U.S. Const. amend XII.
46. Impeachment Proceedings II, supra note 2, at 40-41
(Trial Memorandum of the United States House of
Representatives).
47. See, e.g., Donald J. Trump (@realdonaldtrump), Twitter
(Dec. 19, 2020, 1:42 AM), https://twitter.com/
realdonaldtrump/status/1340185773220515840 (``Big protest in
D.C. on January 6th. Be there, will be wild!''); Donald J.
Trump (@realdonaldtrump), Twitter (Jan. 1, 2021, 2:53 PM),
https://twitter.com/realdonaldtrump/status/
1345095714687377418 (``The BIG Protest Rally in
Washington, D.C., will take place at 11.00 A.M. on January
6th. . . . StopTheSteal!''). See also Trump Twitter
Archive V2, supra note 11.
48. Att'y Gen. Shapiro Memo, supra note 16, at 1.
49. Impeachment Proceedings II, supra note 2, at 43 (Trial
Memorandum of the United States House of Representatives).
50. Alexander Mallin, Trump Warns ``Tough'' Supporters
Could Turn Things ``Very Bad'' If Provoked, ABC News (Mar.
15, 2019, 11:05 AM), https://abcnews.go.com/Politics/trump-
warns-tough-supporters-turn-things-bad-provoked/
story?id=61709959.
51. 167 Cong. Rec. S647 (daily ed. Feb. 11, 2021).
52. Fabiola Cineas, Donald Trump is the Accelerant, VOX
(Jan. 9, 2021, 11:04 AM), https://www.vox.com/21506029/trump-
violence-tweets-racist-hate-speech.
53. Id.
54. Id.
55. Id.
56. Id.
57. Eric Levitz, Trump on His Supporters Attacking
Protesters: ``That's What We Need More Of,'' N.Y. Mag. (Mar.
11, 2016), https://nymag.com/intelligencer/2016/03/trump-
punching-protesters-is-very-appropriate.html.
58. Cineas, supra note 52.
59. Id.
60. 167 Cong. Rec. S648 (daily ed. Feb. 11, 2021).
61. Cineas, supra note 52.
62. Merrit Kennedy, Montana's Gianforte Pleads Guilty,
Won't Serve Jail Time in Assault on Journalist, NPR (June 12,
2017, 2:35 PM), https://www.npr.org/sections/thetwo-way/2017/
06/12/532613316/montanas-gianforte-pleads-guilty-wont-serve-
jail-time-in-assault-on-journalist.
63. Cineas, supra note 52.
64. Id.
65. Donald J. Trump (@realdonaldtrump), Twitter (Apr. 17,
2020, 11:22 AM), https://twitter.com/realdonaldtrump/status/
1251169217531056130. See also Trump Twitter Archive V2, supra
note 11.
66. 167 Cong. Rec. S648 (daily ed. Feb. 11, 2021).
67. Donald J. Trump (@realdonaldtrump), Twitter (May 1,
2020, 8:42 AM), https://twitter.com/realdonaldtrump/status/
1256202305680158720. See also Trump Twitter Archive V2, supra
note 11.
68. 167 Cong. Rec. S648 (daily ed. Feb. 11, 2021).
69. Impeachment Proceedings II, supra note 2, at 43 (Trial
Memorandum of the United States House of Representatives).
70. See supra note 50 and accompanying text.
71. See Caitlin Emma & Sarah Ferris, Second Police Officer
Died by Suicide Following Capitol Attack, Politico (Jan. 27,
2021, 12:45 PM), https://www.politico.com/news/2021/01/27/
second-officer-suicide-following-capitol-riot-463123 (``Five
people died as a result of the riots, and two officers later
died by suicide--a death toll that has horrified lawmakers of
both parties and led them to demand answers from Capitol
security officials.''); Michael S. Schmidt & Luke Broadwater,
Officers' Injuries, Including Concussions, Show Scope of
Violence at Capitol Riot, N.Y. Times (Feb. 11, 2021), https:/
/www.nytimes.com/2021/02/11/us/politics/capitol-riot-police-
officer-injuries.html (``At least 138 officers--73 from the
Capitol Police and 65 from the Metropolitan Police Department
in Washington--were injured. . . .'').
72. Donald J. Trump (@realdonaldtrump), Twitter (Jan. 6,
2021, 6:01 PM), https://twitter.com/realdonaldtrump/status/
1346954970910707712. See also Trump Twitter Archive V2, supra
note 11.
73. Maggie Astor, Impeachment Briefing: The Senate Acquits
Trump, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/
2021/02/13/us/politics/impeachment-briefing-the-senate-
acquits-trump.html.
Ms. KLOBUCHAR. Mr. President, as Senators in this proceeding, we were
bound by two oaths, to support and defend the Constitution and to
pursue impartial justice as we considered the Article of Impeachment
filed against former President Donald Trump: a charge of incitement of
insurrection.
The Framers of our Constitution gave us the tools to respond to a
moment like this. Having lived under the tyranny of an unaccountable
King, they were well aware of the risks of a President willing to abuse
his or her power. William Davie, one of North Carolina's
representatives at the Constitutional Convention, argued that
empowering the Congress was necessary to protect against the threat of
a President who would spare ``no efforts or means whatever to get
himself reelected.''
Our system of checks and balances as laid out in our Constitution
provides that the Congress can impeach a President for committing
``Treason, Bribery, or other High Crimes and Misdemeanors.'' The phrase
was meant to encompass any offenses that, as Alexander Hamilton
explained in Federalist 65, include an ``abuse or violation of some
public trust'' and ``injuries done immediately to society itself.''
Impeachment is a remedy for this public harm.
Some of my colleagues argue that the Senate could not sit as a court
of impeachment for a former President. But constitutional scholars from
across the political spectrum agree that the plain language of the
Constitution and the historical precedent are clear that the Senate has
the power to hold former officers accountable for offenses committed
while in office. The question was debated on the Senate floor, we had a
vote, and a bipartisan majority decided that we should proceed. As
Manager Jamie Raskin said, ``[t]he jurisdictional constitutional issue
is gone . . . We are having a trial on the facts.''
As we were all witnesses to what happened on January 6, the facts are
clear. During the trial, we saw evidence that was haunting and
chilling. But more than that, collectively, the evidence presented a
clear indictment of President Trump's role in threatening not only the
lives of those at the Capitol, but the very lifeblood of our democracy.
President Trump's actions on January 6 were consistent with a years-
long effort to undermine faith in our democratic system. After spending
months trying to delegitimize our elections and despite losing by more
than 7 million votes, President Trump filed dozens of lawsuits and
called into question the election results across the country. In court
after court, the President's claims were rejected. As Judge Bibas, who
was appointed by President Trump, wrote for the Third Circuit,
``Charges of unfairness are serious. But calling an election unfair
does not make it so. Charges require specific allegations and then
proof. We have neither here.''
In an attempt to delay the certification of the results, President
Trump privately pressured State election officials, including asking
Georgia's Secretary of State to ``find'' 11,780 votes, a number that
would flip the State in his favor. Thankfully, election officials
followed the law, and by December 11, 2020, all States had certified
the results of the election.
Despite the results being final, however, President Trump convinced
his supporters that there was one last opportunity to interrupt the
peaceful transfer of power: preventing the Congress from counting the
electoral college votes. And they responded to his call. During the
trial, we saw a video of a rioter yelling, ``We were invited by the
President of the United States!'' and examples of the rioters' social
media posts telling President Trump they were there for him, including
a photo of rioters storming the Capitol steps captioned, ``This is
me.''
Law enforcement, sworn to protect the Capitol, were repeatedly
assaulted defending our temple of democracy and our very republic. We
will never forget the shrieks of the police officer pinned in between
the doors at the hands of the rioters, pleading for help. We will never
forget Officer Harry Dunn, who fought against the violent mob for hours
and, after it was over, broke down in tears, telling fellow officers he
had been called the N-word numerous times that day. He asked: ``Is this
America?'' Or Officer Eugene Goodman who ran to take on a growing group
of the rioters by himself, diverting them away from the Senate Chamber
and allowing Senators to move to a secure location.
Tragically, the attack on the Capitol also cost the lives of three
brave officers, including Officer Brian Sicknick who died from injuries
sustained while engaging with rioters. Two other officers died by
suicide following the events of January 6: D.C. Metropolitan Police
Officer Jeffrey Smith and U.S. Capitol Police Officer Howard
Liebengood.
While much of the trial rightfully focused on what President Trump
did on and leading up to January 6, in many ways what he did not do was
even more dangerous. After he sent the mob to the Capitol, putting law
enforcement
[[Page S943]]
in danger and threatening the safety of the Vice President, President
Trump did nothing to stop the violence. Despite calls from Republican
leaders across the country, President Trump did not even send a tweet
to defend our democracy. Hours after the rioters first breached the
Capitol, he finally released a video and told the rioters: ``we love
you; you're very special.''
President Trump betrayed his oath of office to preserve, protect, and
defend the Constitution of the United States. He incited a mob to
attack the Capitol and prevent the peaceful transfer of power, and for
that, he should be impeached.
On January 6, we were all awakened to our responsibilities as
Americans and as Senators. I will never forget walking to the House
Chamber around 4 a.m., with shattered glass from broken windows strewn
in the hallway, joined by Senator Blunt, Vice President Pence, and
alongside two young women who carried the mahogany boxes holding each
State's electoral votes. We knew we had to return to do our jobs, and
that night, we made clear to all: Democracy will prevail.
Thank you.
Mrs. SHAHEEN. Mr. President, on January 6, 2021, the heart of
American democracy was attacked by a violent mob seeking to stop the
counting of electoral votes in Congress and the peaceful transition of
power. The peaceful transition of power is the hallmark of any healthy
democracy and the foundation of our government by the people. That
tradition has endured in our country since the ``Revolution of 1800''
when John Adams lost his election to Thomas Jefferson, marking the
first peaceful change of Executive party in the United States. Years
later, Jefferson would write about the ``Revolution of 1800'' and say,
``for that was as real a revolution in the principles of our government
as that of 76 . . . not effected indeed by the sword . . . but by the
rational and peaceable instrument of reform, the suffrage of the
people.'' Sadly, the attack on the Capitol was an attempt to return to
the ``sword,'' and it was incited by the President of the United
States.
Donald Trump's actions leading up to and on January 6 demonstrated
what I believed following his first impeachment: He was unfit for the
Presidency and betrayed his oath to faithfully execute the office of
President and preserve, protect, and defend the Constitution. Donald
Trump engaged in a months-long campaign of lies and misinformation
about voter fraud in the 2020 election to mislead the American people
and maintain power. This campaign was waged with a singular purpose: to
overturn a free and fair election through any means necessary. It
included calls to State election officials in Georgia where he urged
them to ``find votes'' that would allow him to win the State; wild
conspiracy theories that voting machines had been rigged against him;
and baseless lawsuits that were rejected more than 60 times by Federal
courts at all levels. This insidious effort culminated at the ``Save
America'' rally on January 6 when the former President urged his
supporters to ``fight like hell'' and directed them to march on
Congress where the counting of electoral votes had begun.
The House Managers presented a detailed timeline of the former
President's actions before, during, and after the election that exposed
his effort to subvert the Constitution and defy the will of the
American people. The evidence presented against the former President
demonstrated that he sought to undermine and ultimately overturn the
results of the 2020 election. It showed that when his challenges in
court had failed and the electoral results had been certified, he
turned his attention and all the power of the Presidency to January 6.
He encouraged his supporters to come to DC to ``stop the steal'' and
pressured former Vice President Pence to assert power he did not have
under the Constitution to overturn the election. Trump amassed a crowd
of individuals waiting for his direction, including armed individuals
who had planned an attack for weeks in response to the President's
claims that the election was stolen.
The former President's actions had deadly and destructive
consequences. Insurrectionists stormed the Capitol building,
desecrating the seat of American Government and the physical
manifestation of freedom for people across the world. The
insurrectionists viciously beat police officers defending our
democracy, vandalized the building, and terrorized those inside. All
the while, the mob chanted ``hang Mike Pence,'' ``President Trump sent
us'' and ``traitor, traitor, traitor.'' When the attack was over,
hundreds of police officers and others were injured, and five people
were dead, including a brave Capitol police officer who lost his life
defending our Capitol. The attack was viewed across the world and has
undeniably tarnished America's reputation as a beacon of freedom and
democracy.
What was the former President's response to this treasonous attack on
our constitutional process? It was to repeat the sinister lies that had
led to the attack in the first place and refer to the insurrectionists
as ``great patriots'' whom he loved. The House Managers showed that the
President could have stopped the attack, but he chose instead to
continue his effort to obstruct the counting of the electoral votes.
According to the testimony of Congresswoman Herrera Beutler submitted
to evidence, the former President responded to House Minority Leader
Kevin McCarthy's pleas for help by saying, ``Well, Kevin, I guess these
people (the insurrectionists) are more upset about the election than
you are.'' These are not the actions of a President trying to defend
the Constitution and uphold his oath of office; they are the actions of
an individual intent on retaining power by any means necessary.
The actions of Donald Trump before, during, and after the attack on
the Capitol reflected our Constitution's Framers greatest fear that a
president would do anything to retain power contrary to the will of the
people. They knew well the dangers of a despot and the capacity of
power to corrupt the Republic they had established. That is why I voted
to convict the former President to protect our system of government
from those who would use their office to undermine our Constitution.
Senate precedent, history, and tradition clearly demonstrate that a
former President could be convicted having been impeached by the House
while still in office.
The former President's legal team made no persuasive argument as to
how his remarks on January 6 would be considered protected speech under
the First Amendment or why he could not be convicted as a former
President. As House Manager Raskin said during his argument, ``if this
is not impeachable conduct then what is?'' I believe it fits squarely
within the high crimes and misdemeanors identified as an eligible
offense for impeachment in the Constitution. Thus, I exercised my
responsibility as a juror to vote to convict and ensure that the
actions of the former President would not go unchecked.
Donald Trump betrayed his oath of office and he betrayed the American
people. His actions must not go unanswered. The oath that I took and my
allegiance to it require that I preserve, protect, and defend the
Constitution by voting to convict a former President whose zealous
pursuit of unchecked power will forever be remembered as one of the
darkest days in American history. As a U.S. Senator, I will continue to
take a stand against actions that violates the fundamental norms and
ideals of American democracy.
Mr. BENNET. Mr. President, for the second time in over a year, events
compelled the Senate to hold an impeachment trial for President Donald
Trump. By once more acquitting the President despite overwhelming
evidence of his guilt, the Senate has again abdicated its
responsibility to the American people and our democratic Republic.
The Founders fashioned our constitutional system to at once defy
history and reflect its enduring lessons. They understood that since
the first human societies, rule of the strong had prevailed across ages
of warlords, monarchs, emperors, and tyrants. From the examples of
ancient Greece and Rome, they also knew that rule by the people was the
fragile, flickering exception.
To ignite America's experiment in self-government, the Founders
handed us a constitutional system unique in human history, with
inalienable rights for the people, free and fair democratic elections,
the rule of law, and coequal
[[Page S944]]
branches of government to check the unbridled ambitions that risked
dragging us into tyranny. Our system was never perfect--far from it--
but over 234 years, Americans have fought and sacrificed to make it
more democratic, more fair, and more free.
The Founders also understood that, however well-crafted the
Constitution may be, its fate would inevitably depend on the public
officials sworn to protect it. They could give the Senate the unique
power to convict a President, but they could not guarantee Senators
would exercise that power when the moment required it.
Their fears were realized on February 13, 2021, when the Senate
failed to convict President Trump, a man who defied every standard of
conduct and decency the Founders expected of public officials.
Months before Americans cast their ballots, Donald Trump made our
democracy his enemy--manufacturing false claim after false claim to
undermine the 2020 election. He warned the election would be stolen or
rigged, dead people would vote, and voting machines were not
trustworthy. He repeated these claims incessantly on social media, at
his rallies, and in interview after interview on cable news. He repeats
these lies to this day.
When Donald Trump lost the election by over 7 million votes, he
refused to concede. Instead, he waged a months-long war against the
peaceful transition of power. First, he challenged the election results
in court. He lost 61 out of the 62 cases, often being howled out of
court by Federal judges, many appointed by the President, for failing
to produce any evidence of widespread fraud. Former Attorney General
William Barr, one of the President's most steadfast allies, confirmed
that there was no such evidence.
So the President changed course. He threw the weight of his office
against State and local officials hoping he could coerce them into
overturning their States' lawfully conducted election. He called
election officials in Wayne County, MI. He summoned State senators from
Michigan and Pennsylvania to the White House to urge the legislature to
intervene. His aides hounded the Governor of Arizona to echo the
President's baseless claims about the election. Most notoriously, he
browbeat Georgia Secretary of State Brad Raffensperger in a recorded
phone call to ``find'' another 11,780 Trump votes and badgered the Vice
President to reject the certification of the electoral results. In my
view, these actions alone warranted impeachment. But he didn't stop
there.
In the end, President Trump stopped at nothing. As Congress gathered
on January 6 to certify the electoral college results, he incited a mob
to invade the Capitol and ``stop the steal.'' They scaled, as if it
were an enemy rampart, the platform built for President-elect Biden's
inauguration and the peaceful transition of power. They chanted
President Trump's name as they smashed doors, broke windows, and looted
private offices. They repeated the President's lies as they cursed,
speared, and bludgeoned the men and women of law enforcement who
defended our democracy.
At virtually every step of the way, our constitutional system held
its ground because patriotic Americans fulfilled their obligation to
our Republic. From the Capitol Police to the nonpartisan election
officials, to the State and Federal judges, to the Vice President of
the United States--all refused to bend to the President's lawless
demands. We should shudder to think how events would have unfolded if
these Americans had made a different choice.
Yet somehow, confronted with these examples of individual patriotism
and the overwhelming evidence of the President's impeachable offenses,
43 Senators still voted to acquit, including the Senator minority
leader, Mitch McConnell.
The minority leader refused to contest the case laid out by the House
managers. He conceded that President Trump was ``practically and
morally responsible for provoking the events'' of January 6, committing
what he called ``a disgraceful dereliction of duty.'' Instead, the
Senator hid behind a strained reading of history and dodged his duty to
hold President Trump accountable on the feeble ground that the Senate
lacked jurisdiction. Through this sophist sleight of hand, the minority
leader tried to place one foot on the right side of history without
taking the hard vote it actually required. In doing so, he provided
cover to every Republican Senator who joined him to acquit President
Trump, including many who have failed to denounce the former President
for anything he has done to undermine American democracy.
The Constitution grants the legislative branch authority to hold
accountable any President who would seek to undo our democratic system
of government. This Senate's refusal to exercise this authority and
convict Donald Trump is a stain on this body. We had the responsibility
to serve as a check on his anti-American actions and reassert the
standard of government our Founders imagined. We chose otherwise.
With the permission of the Senate's acquittal, Donald Trump refuses
to admit his defeat and continues to mislead his supporters that the
election was stolen. In so doing, he continues to perpetuate, in
another form, the insurrection he unleashed on January 6.
Our democracy stands today, not as a result of our actions, but those
of law enforcement officials at the Capitol and State and local
officials in Michigan, Pennsylvania, Georgia, Arizona, and Wisconsin--
men and women who didn't surrender to President Trump's tyrannical
demands.
Nearly 2 months later, the U.S. Capitol remains ringed with razor-
wire. As I have walked through the perimeter each morning, I have
reflected on those who kept us safe from the President's anti-
democratic mob--the law enforcement officials, the people who maintain
and clean the Capitol, congressional staff. They risked life and limb,
not only to defend Senators and Representatives but to defend basic
American principles of our constitutional order: free elections, the
peaceful transition of power, the rule of law, and the separation of
coequal branches of government.
And then I think about the State and local officials, many
Republicans, who held their ground under pressure from the President of
the United States, often accompanied by threats from angry citizens
caught up in his ``Big Lie'' that an election he lost by over 7 million
votes was somehow stolen from him. These brave men and women did their
duty to protect our constitutional system.
They are true patriots no different than the millions of other
citizens who have done their part to defend the way of life we share
under our Constitution. They join the African-American regiments who
defended the Union in the Civil War, the code talkers in World War II,
and the sons and daughters of immigrants who have defended our country
from Yorktown to Normandy to Kandahar.
The Constitution of the United States is not a machine that runs
itself; it is an exercise in self-government. American citizens--
including those elected to serve them in the Senate--must keep it
working and always ensure that it becomes more democratic, more fair,
and more free.
As Americans, we should take comfort that there have been many, from
Frederick Douglass and Susan B. Anthony to the other courageous
citizens who rose to moments far more difficult than our own to protect
the Republic and push it closer still to our highest ideals.
They are why the United States remains, for now, the longest lasting
government by the people in human history. But as the Founders
understood, democracy will always be vulnerable to demagogues who stop
at nothing to hold on to power. History will record the names of those
who stood on the side of the Constitution, passing down to the next
generation the high standard of citizenship our democracy demands.
Hopefully, a future Senate will meet that standard.
Mr. BLUMENTHAL. Mr. President, in this impeachment trial, every
Senator was a juror, but also a witness and victim of the violent
insurrection Donald Trump incited. The case was straightforward. Former
President Trump instigated an armed riot seeking to overthrow a lawful
election and possibly even injure or assassinate elected officials.
I spent most of my career enforcing laws, including two decades as
Connecticut's attorney general. In this
[[Page S945]]
role, I learned the power and the significance of accountability. When
wrongdoers enjoy impunity for their actions, they and others like them
are emboldened.
The first time former President Trump was impeached by the House, he
had pressured a foreign government to corrupt the American election
process, extorting a vulnerable, fledgling democracy to help him cheat
in a Presidential election.
This time, former President Trump's attack on American democracy was
more direct and violent. The insurrectionists forced us to flee for our
lives, to place desperate, seemingly final calls to loved ones. A
Capitol police officer died protecting us.
I have the same fear now, only greater, that I felt at the close of
former President Trump's last impeachment. By again refusing to hold
former President Trump accountable, the Senate is paving the way for
another would-be tyrant to break laws and norms to retain power.
We in the Senate are obligated to uphold our oaths to support and
defend the Constitution against all enemies, foreign and domestic. Our
oaths obligate us to hold former President Trump to account for his
incitement of a violent attack on the U.S. Capitol, the symbol of
American democracy around the world.
The case against Donald Trump was proven convincingly with videos and
voice recordings so powerful that this printed word can never capture
their force. The former President's offense in this case is as
dangerous as it is straightforward. He spent months of his Presidency
telling and retelling the ``Big Lie.'' The lie that no matter how the
American people voted at the ballot box, he was the only legitimate
winner of the 2020 Presidential election. That the election was stolen
from him, that anyone who disagrees is un-American, a traitor.
As Manager Lieu explained at trial, at a certain point in his efforts
to undermine the 2020 election, ``Trump ran out of non-violent options
to retain power.''
Donald Trump encouraged, emboldened, and even helped build a mob of
violent extremists that he invited to Washington, DC, and incited to
storm the Capitol. While some Members of Congress were serving the
former President in seeking to subvert American democracy by objecting
to vote counting, Trump was imploring the mob to do the same. He told
supporters to ``never give up'' on the ``Big Lie.'' He told them that
``this election was stolen from you, from me, from the country.'' He
said, ``if you don't fight, you are not going to have a country
anymore.'' He told the insurrectionists to go to the Capitol, and he
even lied to them that he would be going with them.
The resulting violence, clearly foreseeable, was horrifying. They
marched to the Capitol. Rioters broke windows and breached the
building. They killed a 42-year-old Capitol Hill police officer and Air
Force veteran, Brian Sicknick. They did stop the vote counting, if only
temporarily. They injured many.
Members of Congress removed congressional pins to avoid
identification from the mob. Senators ran from the Senate Chamber. They
ran for their lives. Rioters flew a Confederate flag, a symbol of hate
that did not fly in the Capitol even at the height of the Civil War.
Donald Trump watched this deadly attack unfold with glee from the
Oval Office. On national TV, he told the insurrectionists that he loved
them. ``I know you're hurt,'' he consoled the rioters. ``We love you.
You're very special.'' He did not lift a finger to help anyone
threatened with violence, including his Vice President.
As a result of former Donald Trump's incitement, an angry mob stormed
the Capitol with every intent to harm elected officials and disrupt the
peaceful transfer of power. Not only has the world lost Brian Sicknick,
two other Capitol Police officers have died by suicide. Several members
of the mob were killed.
The Senate's failure to convict increases the specter of another
would-be tyrant, as well as Donald Trump, seeking again to mobilize a
mob to overthrow democracy. Violent extremism has been emboldened. It
is a present, immediate danger.
My colleagues know that former President Trump lost the 2020
Presidential election. They know that more than 60 courts tossed out
his attempts to drum up baseless allegations of voter fraud. They know
that the director of Cybersecurity and Infrastructure Security Agency,
a lifelong Republican, certified the election was safe and secure. And
they know that former President Trump incited the insurrectionists to
attack the Capitol on January 6.
Democracy is not our default state of being. Democracy thrives only
so long as the institutions that support it thrive. And democratic
institutions will only thrive and persist through hard work, active
work, dedicated work of our elected officials. For 4 years, former
President Trump continuously attacked our basic norms and institutions
of democracy. For 4 years, he normalized chaos. Our job now--
Republicans, Democrats, Independents--is to restore. We must dedicate
ourselves to restoring the rule of law, the protections of rights, and
the integrity of institutions. And that task starts with accountability
for all those who perpetrated the damage.
Ms. HIRONO. Mr. President, I rise today regarding the second
impeachment of Donald Trump.
The House managers made their case. Based on the evidence they
presented and the events we all experienced, Donald Trump should be
convicted and prohibited for holding office ever again for inciting a
violent insurrection at the U.S. Capitol on January 6.
Through video, pictures, and quotes, they outlined how the President
of the United States engaged in a months-long campaign to discredit the
legitimate election results of the 2020 election--a deranged campaign
that began before a single vote was cast.
This unprecedented campaign of misinformation, pushing the ``Big
Lie,'' infected a significant contingent of the President's supporters.
They came to Washington, DC, at Trump's invitation and inciteful
rhetoric. They followed his direction on January 6 to storm the Capitol
and tried to stop us from carrying out our constitutional duty to
certify the election for the lawful winner of the Presidential
election, Joe Biden.
The evidence presented by the managers is solid and irrefutable, and
the President's lawyers made almost no effort to try. Given the jury
they were facing, I don't blame them. Almost every Senator in this
Chamber was there that day. Senators Ossoff, Warnock, and Padilla
weren't sworn in until January 20. We all experienced the unthinkable
that day, and we are all processing it differently. The violent
insurrection shook many of us to the core. For some of us, the events
of that day were so chaotic that the full magnitude of what was
happening wasn't clear at the time.
Both as part of the trial evidence and through interviews and
statements, we have learned more fully the measure of danger we faced
as Donald Trump's murderous mob assaulted the Capitol campus. The
managers' case and other media has given us all a better picture of the
terror.
There are stories of bravery, like that of Officer Eugene Goodman and
his U.S. Capitol Police colleagues.
The footage of Officer Goodman misdirecting the mob marauding through
these halls is remarkable. Put yourself in his shoes. How many of us
would have acted as quickly in the face of a rushing wave of hate? He
has rightly been commended for his decisive, nearly superhuman
response. All across the complex, his colleagues battled with
insurrectionists who assaulted them with bats, bear spray, and other
weapons in close quarters--these were scenes from a war zone, not the
heart of the U.S. Government. While their bravery is commendable,
Capitol Police and the other law enforcement agencies that eventually
assisted to restore order should never have been in that position. But
for the President of the United States sending a mob of violent
insurrectionists to the Capitol, they would not have.
There are other chilling stories that should make every American's
heart race. The audio of the Speaker's staff barricaded in their
office, whispering into the phone, voices trembling, begging for help.
The silent Capitol security footage showing just how close the Vice
President, Senators, Representatives, and staff came to harm. The
videos of chanting, gleeful, rioters demonstrating their horrifying
fealty to
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Donald Trump's lies as they broke down doors and ransacked offices and
the Senate floor. The story that my friend Senator Murray has told of
being trapped in her office with her husband. The mob pounding on the
door while he tried to hold it shut with his foot. The absolute terror
she must have felt hoping that the door was locked and that help would
come quickly. They were inches away. The rest of us there that day were
at least feet away. I am sure that we all called, texted, and thought
of loved ones. Trying to reassure them but not actually knowing if that
was true. Feeling from far away their helpless anguish for us and the
utter terror and disbelief that something like this could happen in our
country. To the U.S. Capitol, of all places.
The U.S. Capitol is the heart of our democratic system of government.
While we may disagree vociferously, debate passionately, and represent
people and communities with deeply divergent views, Congress exists to
find common ground without resorting to violence. This simple fact--
that as a country we solve our problems through democratic institutions
and debate--is a source of our strength and global leadership. I have
strong disagreements with a number of my colleagues. I know many of
them disagree with me. But each day we come to the Senate floor and
voice those disagreements without fear for our safety. On January 6,
that basic level of understanding--the very thing that separates our
country from so many others--was shattered by the assault on the
Capitol. And worst of all, that insurrection was incited by a sitting
President of the United States.
In some respects, it is difficult to know how best to move forward
from that awful day. We came back. We did our jobs. And we are still
here doing what our constituents sent us here to do. The Capitol may
have been changed indelibly for many of us.
Again, to turn to the words of my friend Senator Murray the
bipartisan actions shown in Congress in the wake of the September 11
attacks helped to restore some semblance of safety and security. That
common response is absent today.
To begin to heal, we need accountability. We need to live up to our
constitutional oaths and the sacred duty our constituents bestowed on
us when we were elected: to uphold the law, to stand for their values,
and, when necessary, to stand for our own. We can only start to heal
when we have accountability and justice for what happened. To achieve
this, we need those who are in leadership positions to lead.
Republicans failed to lead last year when they voted to acquit Donald
Trump for his corrupt actions in dealing with Ukraine by conditioning
military assistance on receiving political dirt on Joe Biden. Their
failure to lead, to hold Trump accountable, and frankly to constrain
his mania, emboldened him to push the boundaries of our political
discourse further.
Republicans have another chance to stand up for our democracy and
against authoritarianism. They have a chance to accept the reality that
has been clearly outlined for them in video, audio, and their own
experiences. They can make a strong statement that political violence
is unacceptable in the United States. They can--and should--vote to
convict Donald Trump and bar him from ever holding office again. This
is the real first, meaningful step that we can take to achieve the
unity that we all claim to want.
I will vote to convict. I hope that this time, more than one of them
will be brave enough to lead by standing up and doing what is right.
Ms. WARREN. Mr. President, I would like to enter a statement into the
record.
The President swears an oath to faithfully execute the Office of the
Presidency and to ``preserve, protect, and defend the Constitution of
the United States.'' At the very core of that oath is a commitment to
democracy, to government of the people, for the people, and by the
people.
President Trump tested that commitment. Americans endured a pandemic
while casting their votes in the November 2020 election. Following that
election, the outgoing President baselessly sowed doubt about its
legitimacy and refused to commit to a peaceful transition of power. In
the days leading up to January 6, 2021, President Trump agitated his
most dangerous supporters, who had already shown a propensity for
violence, and called on them to interfere with Congress' duty to
formally count the votes of the electoral college. Donald Trump wanted
a riot to take place on January 6. We know because he said so. And when
police officers defending the Capitol were overrun by his mob, he did
nothing. Democracy is at its most fragile at the moment of transition,
and that fragility is exactly what the former President sought to
exploit.
During President Trump's second impeachment trial, his defense tried
to paint for Americans a picture of a President who called for peaceful
protest and who bears no responsibility for the January 6 assault on
the People's House. But the President's actions took place before our
eyes. His conduct before, during, and immediately after the assault on
the Capitol is well known to the American public. He is uniquely
responsible for the events of January 6.
Americans spoke clearly and forcefully in November when they elected
a new President. Donald Trump's attempt to cling to power through lies
and violence is just what the Framers of our Constitution feared. But
part of the brilliance of our Constitution's separation of powers is
that we, the Congress, have the power and obligation to defend against
such gross misconduct through impeachment.
I voted to convict and disqualify former President Donald Trump
because he violated his oath of office and because our future leaders
must know that such abuses of power will not be tolerated in a free and
democratic society. I will continue to call out these abuses and to
keep those in power accountable.
Mr. MARKEY. Mr. President, the essence of any American President's
job is set forth in the oath he or she swears--an oath that the
Founders considered so fundamental that they put it in the
Constitution. And that job is to preserve, protect, and defend the
Constitution of the United States.
A President who violates that oath has committed an impeachable
offense. That is a truth. There can be no reasonable dispute that a
President who fails at this basic responsibility is unfit to remain in
office and cannot and should not be permitted to hold that office
again.
Not only did Donald Trump fail to uphold his oath, he took steps
intended to violate it. It wasn't mere negligence. It wasn't even
recklessness. Donald Trump engaged in an active, willful, intentional
attack on our Constitution and our democracy.
Donald Trump incited to violence and riot a mob that attacked the
U.S. Capitol and our government. That is a high crime and misdemeanor.
We all saw and heard the evidence during the trial. The video. The
audio. The tweets. The statements. The affidavits.
Months before the election, Donald Trump laid the groundwork for this
insurrection, arguing he would only lose the election if there were
fraud. After he lost, he repeated over and over again the ``Big Lie''
that the election was stolen. He agitated his supporters who falsely
and wrongly believed that the election was rigged.
Trump beckoned a mob to Washington for a rally when he knew the
Congress would be counting the electoral ballots. Trump's people knew
from law enforcement bulletins and intelligence that the mob was armed
and dangerous. Yet, he riled them up and then sent them up Pennsylvania
Avenue to the Capitol. That rally became an orgy of violence and hate.
Mayhem and destruction ensued, all in Donald Trump's pursuit of staying
in office beyond his term. Of ignoring our Constitution. Of preventing
a peaceful transfer of power. Of promulgating the Big Lie. Donald Trump
did not express horror or outrage at the scenes playing out live on
television. He did not quickly and decisively urge his supporters to
stop. He did not immediately call out the National Guard. He did not
show any concern for the law enforcement officers being beaten, maimed,
and even killed at the Capitol. He reportedly delighted in what was
happening, unable to comprehend why others were not excited about it
like he was. And he has never shown any remorse or an ounce of
contrition or taken any responsibility. Instead, he
[[Page S947]]
has maintained that he acted perfectly appropriately.
The Senate of the United States sat as an Impeachment Court, with
Democrats and Republicans serving as jurors. But the vast majority of
those Republicans were more interested in fealty to Donald Trump than
loyalty to our country. They were more concerned about Trump's base
than basic justice. They were willing to ignore the truth to embrace
the Big Lie.
I had hoped the House managers would call witnesses. Clearly, there
were individuals with direct knowledge of Trump's state of mind during
the insurrection, the danger at the Capitol as it unfolded, and his
support of it. But even before we debated potential witnesses,
Republicans had made up their minds. They were unmoving in their fealty
to Trump. Republicans were willfully blind to the truth and the facts
of the case.
The rioters wanted to kill Vice President Pence and House Speaker
Pelosi. They told us so. We know that the west side of the Capitol was
breached around 2 p.m. and that the rioters had overrun the Capitol. We
know that the mob was approaching the Senate floor when our session was
abruptly recessed at 2:13 p.m. We know that Vice President Pence was
whisked off the Senate floor and that he was in mortal danger, as were
all Members of Congress in their Chambers doing their constitutional
duty. We know that all this was playing out in real time on television
and that Donald Trump had to know it was happening. And yet, about 10
minutes later, at 2:24 p.m., knowing all this, Donald Trump tweeted an
attack at his own Vice President. ``Mike Pence did not have the courage
to do what should have been done to protect our Country and our
Constitution.'' And we know that around 2:26 p.m., Donald Trump called
Senator Tuberville not to ascertain what was happening, not ask how the
Vice President was or to offer aid and assistance against the
insurrection. No, Trump called to ask Senator Tuberville to delay the
certification. It is clear whose side Donald Trump was on.
There is no First Amendment defense to what Donald Trump did. The
First Amendment has no application in an impeachment proceeding, which
does not seek to punish unlawful speech, but to protect the Nation from
a President who has violated his oath of office.
But even if the First Amendment applied, even if we bought Trump's
lawyers' bogus claims that the First Amendment can be a defense, the
argument utterly fails. Trump's lawyers relied on the Supreme Court's
decision in Brandenburg v. Ohio, but Brandenburg explained that the
First Amendment protects advocacy, ``except where such advocacy is
directed to inciting imminent lawless action and is likely to incite or
produce such action.'' Once the Capitol was breached, the lawless
action was no longer imminent, it was actual. And Donald Trump was
still tweeting words of encouragement to the rioters. There was a siege
actually happening in the Capitol. There was no longer rhetorical
fighting; there was actual fighting. On television. Live for everyone
to see.
The House managers proved their case with facts and evidence. Donald
Trump incited and relished in an effort to violently overthrow our
government. He invited. He incited. He delighted.
Anyone who is opposed to abolishing the filibuster need only look at
the vote to acquit and see how Republicans willfully blinded themselves
to truth and facts in fealty to Trump and their party. Their votes to
acquit once again show our hurdles to progress: Republican political
calculations and their dereliction to truth and justice.
The final tally on the vote to acquit does nothing to reassure me
that Republicans are willing to work together and transcend party
politics. Republicans had the opportunity to recognize that faith in
the Constitution is a faith that we all share. Instead, they ignored
the Constitution for a Big Lie. How can we expect them to work in good
faith with Democrats to respond to the big challenges facing our Nation
when they refuse to accept undeniable facts?
The only reasonable conclusion based on the evidence presented at the
trial was that Donald Trump committed an impeachable offense, should
have been convicted, and should have been barred from holding future
office. Republicans refused to accept or acknowledge that. I fear that
with their votes to acquit, they have sown the seeds of another violent
attack on our Constitution and our democracy.
Mr. SULLIVAN. Mr. President, the impeachment trial of former
President Donald Trump marked the third time in 1 year that the Senate
has had to confront significant constitutional and institutional
questions with consequences that will undoubtedly reverberate into the
future. As always, I am guided by the Constitution, historical
precedent, and ``a deep responsibility to future times,'' as stated by
Supreme Court Justice Joseph Story, our Nation's first great
constitutional scholar, two centuries ago. This is what has informed me
during last year's impeachment, the electorial college certification in
January, and now another impeachment.
This has been a disheartening episode for a divided America. Make no
mistake: I condemn the horrific violence that engulfed the Capitol on
January 6. All those who undertook violence on that day should be
prosecuted to the fullest extent of the law. I also condemn former
President Trump's poor judgment in calling a rally on that day, and his
actions and inactions when it turned into a riot. His blatant disregard
for his own Vice President, Mike Pence, who was fulfilling his
constitutional duty at the Capitol, infuriates me. I will never forget
the brave men and women of law enforcement--some of whom lost their
lives and were seriously injured--who carried out their patriotic duty
to protect members of Congress that day.
However horrible the violence was--and how angry I have been about
it--I believe that it is imperative, for the future of our democracy,
to examine closely the totality of the precedents, impeachment
proceedings, and evidence, and to be as dispassionate and impartial as
possible in this case.
That is why I cast my vote, on February 13, 2021, to acquit former
President Trump on the single Article of Impeachment, ``incitement of
insurrection.''
The primary purpose of impeachment in our constitutional system is to
remove an official from office--to, according to Justice Story, divest
an official ``of his political capacity.'' The House's single Article
of Impeachment emphasized this need to remove President Trump from
office. Regarding this case before the Senate, President Donald Trump
had already been removed from office by a vote of the American people
this past November. Thus, pursuing impeachment in this case creates a
troubling precedent in which former officials--private citizens--can
face impeachment and conviction.
Therefore, the fundamental issue in this impeachment trial is not
removal from office but whether the Senate has or should accept
jurisdiction to try, convict, and disqualify Donald Trump, a private
citizen, from any future elected office based on the House's single
article of impeachment--incitement of insurrection.
The House and Senate have never before claimed or exercised such
impeachment jurisdiction over a former President. I do not believe that
the Constitution empowers the Senate to have such impeachment
jurisdiction. In his renowned ``Commentaries on the Constitution,''
Justice Story comes to the same conclusion, although to be fair, there
are others who do not. I believe that the precedents set in claiming
that the Senate can try former Presidents who are private citizens have
the very real potential to do significant long-term damage to our
constitutional order, individual liberties, and the proper functioning
of our Republic in a way that we will come to regret as a nation.
Additionally in this case, the House undertook a ``snap impeachment''
in 48 hours with no hearings, no witnesses, no record, and no defenses
presented. When asked about this during the Senate trial, the House
managers stated that constitutional due process protections for a
defendant in an impeachment are ``discretionary'' or, in other words,
not required. This troubling declaration is now a precedent in the
House. Combining this ``no Due Process/snap impeachment'' precedent
with the additional power of the Senate to try former officials, who
are now private citizens, amounts to a massive expansion of Congress'
impeachment
[[Page S948]]
power never contemplated by our Founding Fathers. The temptation to use
such power as a regular tool of partisan warfare in the future will be
great and has the potential to incapacitate our government.
Those in favor of expanding impeachment jurisdiction to include the
former President primarily point to the potential for Presidents or
other officials to commit impeachable acts near the end of their term
or shortly before resigning. The House managers called this a ``January
exception'' to impeachment. They argued that this would allow such
individuals to escape culpability and would frustrate the purpose of
impeachment to hold public officials accountable. This is a legitimate
concern. However, there are other remedies available to punish such
conduct of a former President through the judicial system, if
warranted. The Constitution explicitly provides that former officials
can be subject to criminal prosecution for their actions while in
office, regardless of impeachment. Moreover, even if such conduct
eludes judicial review, the American people are well equipped to judge
political conduct and pass their judgement upon it. For that reason,
and as I emphasized last year following the previous impeachment trial,
I believe it can be left to the wise judgement of the American people
on whether or not the former President should be disqualified from
future office.
Even if this Senate was empowered by the Constitution to hear this
case, I do not believe that the House managers met their burden in
proving the critical issue at trial--whether the former President
intended there to be violence at the Capitol as a result of his speech
at the Ellipse on January 6. Furthermore, the House managers claimed,
in arguing their incitement charge, that First Amendment political
speeth protections do not apply to elected officials in impeachment
proceedings. A conviction based on this breathtaking precedent has the
potential to significantly further undermine core constitutional
protections for Americans and their ability to undertake political
speech in the future.
Finally, laced throughout the House managers' presentations were
subtle and not-sosubtle indictments, not just against the Capitol
rioters who fully deserve condemnation but against all supporters of
the former President, which of course includes many Alaskans. This
sentiment is one that cannot and should not be allowed to be
perpetuated. In my view, this will not bring about the kind of unity
that our Nation needs now. In contrast to what some of the House
managers implied at this trial, the vast majority of Americans and
Alaskans who had supported President Trump were appalled by the
violence on January 6. Such Alaskans supported this President because
of his polices that helped our State. I will continue to work to make
sure that these Alaskans' voices are not silenced and that this
dispiriting chapter in American history won't deter them from speaking
out in defense of their beliefs.
This has been a difficult time for our Nation. My vote on February 13
was not in defense of the former President's conduct on January 6 with
which I fully disagreed, particularly his twitter attacks on Vice
President Pence, as the Vice President undertook his constitutional
duties to preside over the electoral college vote at the Capitol.
At the end of the day, my obligation is to rise above the passions of
the moment and to carefully consider the decisions we make today and
the ramifications they will have for our country's future. I believe
that my vote to acquit fulfills that obligation. I want Alaskans and
Americans to know that throughout all of this, my guiding light has
been both fidelity to Alaska and to our Constitution.
Ms. CORTEZ MASTO. Mr. President, during this impeachment trial, I
have adhered to the oath I swore at the trial's outset to ``do
impartial justice,'' and I have listened with care to the facts and law
presented to me as a juror.
These facts compel me to conclude that Donald Trump is guilty of
inciting an insurrection against our Republic.
As the evidence presented by the House impeachment managers has made
clear, Donald Trump used the powers at his disposal to ensure he could
keep his grip on the Presidency even though he lost the election.
As the sitting President and a candidate for reelection, Donald Trump
cast doubt on the results of that election for months, arguing that the
only way he would lose at the polls was by fraud. Then, after losing to
Joe Biden by a margin of 7 million votes in a free and fair election,
Donald Trump claimed it was a ``fraudulent election.''
As our system of government allows, Donald Trump turned to State and
Federal courts to hear his allegations of widespread fraud. Some of
those courts were presided over by judges who Donald Trump himself had
selected. Again and again, those courts rejected the allegations of
fraud as baseless.
Even Trump's own Attorney General, William Barr, publicly declared
that he had found no evidence of fraud that could have ``effected a
different outcome in the election.''
Faced with defeat in the courts, Mr. Trump nevertheless pressured
officials at every level of both State and Federal government,
including his own Vice President, Mike Pence, to change the election
results.
When those efforts failed, he encouraged his supporters to come to
Washington, DC, on January 6, the day when Congress would certify the
electoral college votes for Joe Biden. He claimed that the election was
stolen and tweeted ``We have just begun to fight,'' promising that on
January 6, it would be ``wild.'' On December 11, 2020, Donald Trump
released two campaign ads claiming the election was a ``fraud'' and
instructing his supporters to ``stop the steal.'' His campaign paid $50
million dollars for the ads and ran them up to and until January 5,
2021.
Those who heeded that well-funded call understood what President
Trump was asking. They didn't just come with protest signs; they came
with handcuffs and rifles, bear spray and tactical gear, Molotov
cocktails and crossbows, and walkie talkies for communication.
On January 6, at a rally just before noon, Donald Trump asked the
large crowd assembled before him to march on the Capitol. He asked them
to fight ``like hell'' because ``if you don't fight like hell, you're
not going to have a country anymore.''
Despite knowing that there had been concerns for months about
potential violence surrounding the election, Donald Trump urged those
at the rally 20 times to ``fight.'' He also called on them to ``stop
the steal,'' declaring ``you'll never take back our country with
weakness.''
Inspired by President Trump's words, his supporters began streaming
toward the Capitol, where they eventually overwhelmed its defenses and
threatened those inside. Those in danger included the Vice President,
the Speaker of the House, Members of Congress, countless staffers, and
thousands of members of law enforcement.
And when Donald Trump saw that his supporters were battling U.S.
Capitol Police officers and DC police, he said nothing to stop them for
more than 2 hours, even when he knew that Vice President Pence, one of
his most loyal political allies, was in danger. More, he tweeted
further criticism of Mr. Pence as the Vice President's Secret Service
detail was laboring to whisk Mr. Pence to safety.
Donald Trump was willing to do almost anything to convince Vice
President Pence to violate his duty to the Constitution, and so the
Vice President had a target on his back.
In other words, those who came to Washington at former President
Trump's request and attacked the seat of our democracy were trying to
do exactly what they believed Donald Trump asked them to: prevent the
certification of Joe Biden as President-elect.
That is why they frankly admitted, both during the Capitol riot and
later to law enforcement, that they were at the Capitol because ``[o]ur
president wants us here.''
In response to all these facts, Donald Trump argues that the
Constitution does not permit ex-Presidents to be tried for impeachment
and that the First Amendment protects his right to encourage an attack
on our democracy. These arguments are lawyerly fig leaves. Mr. Trump
relies on them so heavily because his own behavior is indefensible.
The vast majority of legal scholars agree that the First Amendment
does
[[Page S949]]
not apply in this instance because the incitement of an insurrection is
not protected speech under the Constitution. They also believe the
Constitution allows for the impeachment and trial of public officials
after they leave office, particularly when, as in this case, the public
official was impeached by the House of Representatives while still in
office.
Otherwise, all an office-holder would have to do to protect him or
herself from punishment would be to resign just before impeachment. The
Senate has implicitly or explicitly agreed with this view three times
in our Nation's history; first, in the very first impeachment trial
against former Senator William Blount of Tennessee, held during the
lifetime of the Founders; second, in 1876 when Secretary of War William
Belknap resigned just hours before the House voted to impeach him for
bribery and corruption; and finally, in this impeachment trial of
Donald Trump, when a bipartisan majority of the Senate agreed that this
trial could proceed in spite of the defendant's objections to its
constitutionality.
My colleagues understand that the Constitution gives Congress the
power to impeach, convict, and disqualify a former officeholder. This
is true because otherwise, the country would be vulnerable to a
President of either party who could flout any law but resign to be
insulated from consequences.
As the House managers have argued, if anything is impeachable, it is
a President inciting his followers to violence to overturn a legitimate
election.
Our Founding Fathers held democracy sacred. They feared a demagogue,
a leader who would pervert the Constitution in order to keep power, and
they sought to protect the new Republic from such a president.
Donald Trump is the person the Framers feared. He poses an
existential threat to American democracy. He has shown himself willing
to use almost every measure at his disposal to gain and retain power,
even if it means overturning a free and fair election through violence.
We can have no doubt what our Founding Fathers would have made of
him: He was exactly the kind of person they wanted to prevent from
holding and wielding power.
We have seen over the course of this election the profound risks of
trifling with our democracy and undermining the legitimacy of our
elections. We cannot let future candidates of either party believe that
in America, the way to win is to lie and cheat, to whip a crowd into a
frenzy, to turn it on public servants and law enforcement alike. We
have to reestablish in our politics our absolute commitment to the idea
that we resolve our disputes in our courts and in Congress, not by
wielding weapons against lawmakers.
Our Founding Fathers made clear in the very preamble to the
Constitution that ``We the people . . . in order to form a more perfect
union, establish justice, ensure domestic tranquility . . . do ordain
and establish this Constitution.'' America cannot be tranquil unless
its leaders forswear violence and stand up for democracy. That is why I
voted to convict Donald J. Trump of high crimes and misdemeanors
against the American people.
Unfortunately for our country, many of my colleagues did not agree. I
know this is difficult news for many American patriots, who, just as I
do, love and cherish our democratic traditions, the rule of law, and
the centuries-old tradition of the peaceful transfer of power. To that
majority of Americans, I want to say: We must not lose faith in our
system of government. We must work all the more diligently to protect
it.
Right after Supreme Court decided the Dred Scott case--the most
odious case in our long legal history--the great abolitionist and
orator Frederick Douglass gave a speech. I turn to this speech whenever
I am in need of hope.
Precisely when slavery seemed to have won a decisive victory,
Frederick Douglass, himself a former slave, said in that speech that
his ``hopes were never brighter than now.'' He believed that the world
would see what a ``scandalous tissue of lies'' the Supreme Court's
decision in Dred Scott was. And he was right. History holds that Court
case as one of the most shameful in our history, and I believe it will
likewise condemn Donald Trump's incitement of the Capitol attack. So
today I remain hopeful because the people of Nevada and all Americans
have been able to see the truth for themselves, and they understand
that Donald J. Trump must never again be trusted to protect our sacred
democracy.
Ms. SMITH. Mr. President, the facts and the evidence were
overwhelming: Former President Donald Trump lied for months to his
supporters, summoned them to Washington, and incited a violent
insurrection against our government and our democracy. I voted to
convict because no reasonable person can listen to all the evidence
presented and believe otherwise.
Mr. MARSHALL. Mr. President, I would like to submit this statement
for the record regarding the impeachment trial of former President
Donald Trump. The statement reflects my thoughts on this complicated
constitutional matter and its implications for future impeachments.
In 1787, the Articles of Confederation were failing, and our young
Nation was struggling to address the many challenges it was being
confronted with in its infancy. A collection of independent States, the
newly formed country experienced much difficulty with the regulation of
trade and commerce, foreign affairs, and other basic domestic civil
issues. With calls for disunion multiplying, delegates to the
Constitutional Convention met to deliberate and forge a new government
and with it an Executive to help centralize the powers necessary to
form a strong republic. Having just shed the bonds of the British
Monarchy and its infringements upon the liberties the delegates so
desperately wanted to protect, there was much skepticism toward this
idea. In order to abate these concerns, the Constitution's Framers
provided for a means of removing an Executive, a Presidential
impeachment.
After much debate over particular wording, article II, section 4 of
the Constitution adopted by the delegates 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 is the fundamental impeachment provision contained in the
Constitution and provides the primary evidence as to why the lone
Article passed out of the House as well as the subsequent trial in the
Senate, was unconstitutional. As this section shows, impeachment refers
to ``the President'' and other officials, and it provides that that
they shall be ``removed from Office.'' Donald J. Trump is no longer the
President of the United States and therefore can no longer be removed
from office. He is a private citizen.
Further evidence that Donald Trump is no longer the President and
therefore that this trial is unconstitutional can be found within the
Senate's impeachment authority: Article 1, section 3 provides that
``When the President of the United States is tried, the Chief Justice
shall preside.'' Chief Justice John Roberts did not preside over the
impeachment trial, and instead that role was filled by the senior
Senator from Vermont, Patrick Leahy. In a statement, Senator Leahy
himself stated that the President pro tempore of the Senate ``has
historically presided over Senate impeachment trials of non-
presidents.'' These facts demonstrate that Chief Justice Roberts
declined to preside over the trial because he did not believe that he
had a constitutional role and that Senator Leahy acknowledged that
Donald Trump was no longer an officeholder. Finally, article 1, section
3 provides, ``Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and enjoy any
Office of honor.'' This reiterates that removal from office must occur
before that person is disqualified from holding an office again. If the
Founders had intended that disqualification be a separate judgment,
then the Constitution would have clearly stated ``or'' rather than
``and.'' The Constitution does not give the Senate the authority to try
a private citizen or to remove him from an office that he no longer
occupies.
It also does not give the Senate the authority to disqualify him from
an office that he was not removed from.
I voted to acquit former President Donald Trump of the charge of
inciting
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an insurrection for the January 6 Capitol riot because of these basic
concerns surrounding the constitutionality of the proceeding. The
impeachment of a private citizen, driven by political obsession, sets a
very dangerous precedent. What would prevent a Republican-controlled
Congress from impeaching former President Barack Obama or Secretary of
State Hillary Clinton? What about historical Presidents such as George
Washington, whose pivotal legacy no longer appears to meet the moral
standards of contemporary times? While the political retaliation
against the President is certain to continue now that he is out of
office, I am proud to have been a part of the minority in the Senate to
stand up to this type of unconstitutional behavior and to acquit Donald
Trump.
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