Below is my USA Today column on the lack of a House strategy to secure conviction in the trial of former President Donald Trump. As I mentioned earlier, the property managers did an excellent job in their presentations and many of the videotapes sparked the anger most of us felt about the riot. They also reaffirmed the view of many (including mine) that former President Donald Trump was responsible for the tragedy that unfolded because of his reckless rhetoric. There was, however, a glaring loophole in the substance of the House’s arguments. Managers failed to set the standard for convicting a former president for inciting a riot, and touched only briefly on evidence of a “state of mind” required for such conviction. That is why I have called her case emotional rather than conclusive. There was a lack of direct evidence to support the claim that Trump was trying to spark an actual uprising or uprising against the United States, as claimed in the impeachment article. I don’t think an acquittal was inevitable in this case, but it was all but ensured by critical decisions of the House in this impeachment. The casual mistakes discussed below raise the question of whether the Democrats “padded” the process.
Here is the column:
The second trial of former President Donald Trump is turning out to be a strange exercise that is meant to be angry rather than condemned. While legal eagles analyze every move, citizens really need a Philadelphia Eagles fan to understand what is going on. In the NFL it means “refueling”. This year there has been a heated debate over whether Eagles coach Doug Pederson was actually trying to win or just convincingly losing in order to secure a better draft pick. The house trial strategy indicates a refueling process, but few notice the apparent lack of a credible crime.
When it comes to soccer, tank charges arise when the inexplicable speeds along the inevitable. That point was reached this season when Pederson decided not to end the game against Washington in the third quarter with a field goal and instead put Nate Sudfeld into play against Jalen Hurts. The house may have reached the point where managers seem to be trying harder to lose than to win. This was driven home by the selection of managers like Rep. Eric Swalwell after his scandal with the Chinese spy. Swalwell’s comments include not only intrusive legal claims, but also highly personal and offensive remarks such as mocking threats against Susan Collins, R-Maine. Swalwell stated, “Boo hoo hoo. You are a senator that the police will protect. A victim of sexual assault cannot sleep at home tonight because of threats. Where do you sleep? She’s on her own while you and your @SenateGOP colleagues try to get her through a hearing. “Pelosi selected not only one member who viciously attacked the Republicans, but also one of the Republicans the House needed most in the process. Sending in Swalwell made the Sudfeld substitution look like a genius.
If this were an NFL committee of inquiry, there would be three signs of refueling.
The first hint was the use of what is known as a “quick impeachment” process. The House wanted to indict the President before he resigned, which was entirely constitutional. I have long claimed (as I did as a witness in the first Trump impeachment hearing) that the House can lawfully indict a president on his last day in office if there is evidence of a major felony or misdemeanor. However, after January 6, the House had time to hold hearings (if only for a day or two) to draw up minutes in support of the impeachment. The leadership of the House of Representatives, despite urges from some of us, declined never to file an impeachment without a record of a hearing, investigation, or formal opportunity for a President to respond.
It was an ironic moment. In the last impeachment, I criticized the House leadership for indicting Trump in the shortest amount of time in history for the thinnest record. It then outdid itself by indicting him a second time without a record and without a hearing. Even a day of hearings would have eased the Senators’ grave regulatory concerns, but the House pushed through a quick impeachment on a muscle vote. That left the house without a record, despite the denial of witnesses in the previous Senate impeachment
The biggest clue about refueling was the language of the article. Even a single day of hearings would have allowed experts to discuss the possible unimpeachable conduct and the manufacture of impeachment items. There were credible criminal acts in Trump’s January 6th behavior and its aftermath. Instead, the leadership of the house insisted on impeachment for “inciting an uprising”. The house does not allege reckless or negligent conduct that caused a riot. It is claimed to be incitement to actually seek rebellion or overthrow of the country. The article explicitly refers to Section 3 of the 14th Amendment to its prohibition against holding office while “engaging in an uprising or rebellion against the United States”. Even moderate senators who condemned Trump for his speech would most likely not condemn such an article.
The house made it easy for those seeking acquittal. It could have written an article that would have addressed wider support from both parties. Instead, it sought the most extreme language that claimed incitement to actual insurrection – practically a partisan vote and likely to guarantee an acquittal.
The House also contained language that only added to the expected challenge for the House in finding a trial against a former President. The article stated Trump “has shown that if he is allowed to stay in office, he will remain a threat to national security, democracy and the Constitution.” The House was virtually certain, however, that if he were tried, he would be resigning. The language heightened concerns about the constitutionality of retroactive procedures. Not only does the Constitution refer to the process as a decision to recall the “President”, but the article itself refers to the purpose of such recall to protect the nation. While the article mentions disqualification from future office, the article is an urgency that would be null and void within a few days.
What happened next was known to NFL fans who were suspicious of refueling. Nothing has happened. The house made it to the end of a Senate trial and then stalled on a dime. The House called for witnesses in the Senate but then let weeks pass without calling any witnesses relevant to proving Trump’s intent or state of mind. It could have made a public record and testified if, as expected, the Senate had refused to call witnesses or severely restricted witnesses.
Weeks passed as key witnesses gave public interviews. However, the house refused to put her under oath in hearings. Why? A dozen witnesses could have testified, and the record could have been referenced or included in the trial. These are witnesses like former Acting Secretary of Defense Chris Miller and his two closest associates, Kashyap “Kash” Patel and Ezra Cohen, who describe what Trump said and did during the critical period. including discussions about the deployment of the National Guard. Most recently, a senior executive said that Trump “loved watching the Capitol mob on television”. The Witnesses do nothing but carry sandwich boards outside to be called, but the house has refused to keep a record. If it had scheduled hearings, the House would have reduced concerns about the use of rash impeachment and dramatically strengthened its case. Instead, the house preferred no record.
The Senate House Briefing also highlighted the lack of direct evidence of Trump’s state of mind. An emotionally charged but legally incomplete case was brought up for the Senate. To condemn, the House must show that Trump was more than ruthless. It phrased the article as incitement to actual rebellion or insurrection, not mere negligence. Instead, the house plans to show clippings of damage and interviews with rioters to show how Trump’s words were interpreted rather than intended. At the heart of his fall is a parade of terrors from that day on, a tale that will harden the minds of many but change the minds less. Without such evidence, the Trump team will be able to distort the similarly ruthless rhetoric used by the Democrats, including those on the “jury”.
For this reason, the suspicion of a tank attempt grows as the process begins. The house will feature a case that is about emotion and evidence. Trump will then be acquitted and the Democrats will try to attract new talent in the 2022 draft.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley