Democrats’ Impeachment Brief Tries to Cure Defect in Case against Trump
NRPLUS MEMBER ARTICLEThe House impeachment managers, led by Representative Jamie Raskin (D., Md.) have filed their brief in anticipation of the Senate impeachment trial of former president Donald Trump, which will begin in earnest next week.
The submission is mostly what you would expect. It contends that the former president is singularly responsible for the siege of the Capitol, which he is said to have incited by his fiery speech on the Ellipse. It also directly confronts the major legal defense in the case — namely, the claim that the trial of a former president violates the Constitution — countering that sanctions against former officials were understood to be part of the impeachment power at the time of ratification.
What I have found most notable thus far about the 80-page submission is a section in the description of the managers’ case, entitled “President Trump’s Dereliction of Duty During the Attack.” As readers may recall, I argued here that the impeachment article approved by the House is flawed: It relies principally on the allegation that Trump “incited” the attack on the Capitol, rather than focusing on the former commander in chief’s dereliction of duty during the attack. The House managers are trying to cure that defect with their pretrial brief — something that could not be done in a criminal case controlled by due-process rules, but that is appropriate in impeachment.
The incitement accusation may be true in the colloquial sense of “incitement,” but it is legally problematic because the federal-law concept of incitement requires unambiguous calls for violence that is probable and imminent. It also has some factual proof hurdles — e.g., the violence had already begun before the former president gave his speech.
As I’ve acknowledged, since impeachment calls for a political judgment not a legal one, these challenges to the prosecution of the case can be overcome. Nevertheless, a better conceived prosecution would have focused on what was most indefensible: the former president’s failure to act during the hours of the siege — in which Capitol police officer Brian Sicknick was murdered, other police officers were injured by the pro-Trump rioters, a rioter was killed, and three other rioters died due to medical emergencies.
Trump failed as commander in chief to take any actions to repel the attack on the seat of the United States government — an attack on lawmakers and the then-vice president, Mike Pence. Moreover, he failed to attempt to exercise the influence he had over at least some of the rioters — had Trump timely directed the insurrectionists to desist and leave the Capitol, that would have enabled the security forces on the scene quell the attack more quickly. Instead, Trump made matters worse with his rhetoric, publicly rebuking Pence even as he was being hunted down by rioters. He lamely tweeted “no violence” long after the violence was underway; and even after that, he made excuses for the rioters and appeared to praise them:
These are 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!
The impeachment managers’ brief is plainly an attempt to correct this flaw in their case. They have put the Senate and the Trump defense on notice that, even though the article is called “Incitement to Insurrection,” the allegation of dereliction of duty is a significant part of their theory that former president Trump’s actions merit conviction and disqualification.
The position of most Republican senators, as we’ve observed, is to rely on the legal defense that the impeachment trial of a former official is constitutionally illegitimate — even if, as the estimable former federal appellate judge (and now Stanford law professor) Michael McConnell notes, Trump was still president at the time the House impeached him. The stance they’ve carved out, Republicans hope, will enable them to fight the impeachment (pleasing pro-Trump voters) while not appearing to defend Trump’s conduct (which would anger most of the country). If the impeachment managers are effective, however, in focusing their case on Officer Sicknick’s murder while the commander in chief, at best, dithered, it will be harder for Republicans to cling to a highly disputable legal technicality.
Former president Trump’s new legal team filed a response brief later Tuesday, denying the Democrats’ allegations.
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