Below is my column in Hill on the trial reports the House and Trump team filed for the second Trump impeachment trial. The letter from the house promises an emotionally charged but legally inadequate case for conviction. Indeed, there is no evidence that “law enforcement” is supposed to win the case as the House offers little on the issue of intent. Conversely, if Donald Trump insists on arguing election fraud, he could potentially develop his own conviction. Rather, the strategy on both sides seems to be to upset the emotions of the audience rather than to prove an actual case for incitement to insurrection.
Here is the column:
I don’t think Punxsutawney Phil said anything about winter this year. Phil’s handlers claim to speak “groundhog”, but there are only a few things that should come from the groundhog itself. If you’re a groundhog skeptic like me, you’ll be equally unhappy with the filings for the second Trump impeachment by the House impeachment managers and the Trump team.
The House Brief outlines what will be a very emotional case, but in which there is conspicuously no evidence of a critical element: intent. Likewise, the case presented by Trump’s new lawyer can equally be decoupled from the allegations. In this process, we’ll hear a lot about how the groundhog showed up, what people thought it said, and even where it went afterwards – but little from the groundhog itself.
The House Brief is based on how Trump’s speech was interpreted rather than intended. The house reportedly plans to show video clips of the riot and statements by the rioters relating to Trump and his speech. That would show how the speech was received, but not how it was meant.
The house is in many ways a prisoner of its own abundance. After refusing to hold a single hearing to examine the language and the effects of the impeachment, House leaders pushed through an article on “Incitement to Insurrection.” The poorly conceived, poorly designed article guaranteed that few Republicans could endorse it. It also refers to a crime that would be difficult to prove in court; It will likely be found that the President’s speech is protected by the first amendment, if not on trial then on appeal. The Supreme Court routinely protected the speech with no clear advocacy of violence.
Trump’s speech would not meet the standard set in cases like Brandenburg v Ohio. In politics, it is customary to urge followers to march into federal or state capitals. In his speech, Trump urged supporters to “peacefully” go to the Capitol to support his election challenge and opposition to those who refuse to support it. However, there is a difference between reckless and criminal rhetoric.
The House filing raises more questions than answers, particularly regarding the House’s relative passivity in keeping records – a “hasty impeachment” with no hearing, testimony or investigation that I criticized. There was no chance the trial would take weeks after Trump left office, and on its own theory the House could indict a former president within days or years of leaving office. However, it refused to hold a hearing.
While calling for witnesses in the Senate, the House could have called witnesses before its own committee to record their testimony for weeks and create a public record that could be referenced in the Senate trial. As I mentioned earlier, at least ten key witnesses could be called, including many who have spoken publicly. Those witnesses include former Acting Secretary of Defense Chris Miller and his two closest associates, Kashyap “Kash” Patel and Ezra Cohen. Some are mentioned in this file, but the House has refused to put them under oath. Why? These witnesses could answer questions about whether Trump obstructed or delayed the deployment of the National Guard. Indeed, the house clearly has information about when the watch was first offered and interactions with the administration when it was deployed. While Trump – like previous presidents – is unlikely to testify, others have reported meetings with him before and after his Jan. 6 speech.
Instead, the House suggests that when Trump later tweeted to his followers at around 2:30 p.m. to “stay peaceful” and “support our Capitol Police and law enforcement agencies,” he didn’t mean it. In that regard, the House seems to prefer to keep the process at the speculative level – trying Trump as his words were received rather than intentional. While the impeachment article refers to a crime of incitement to insurrection, it reads like an impeachment for negligence.
The Trump team
Trump’s original legal team reportedly resigned after insisting that they focus on allegations of election fraud. If so, this could prove the case that Trump wrenched defeat from the jaws of victory. Trump is currently getting a second acquittal with almost the same leeway as in his first impeachment proceedings. Turning this process into a dispute over electoral fraud would be viewed as a mark of contempt by some senators who have lost patience with it.
Trump’s filing, while dealing with his allegation of a stolen election, notes, rather weirdly, that “there is not enough evidence to allow a reasonable lawyer to conclude that the 45th President’s statements were correct or not, and so he denies that they were wrong. “
Trump’s view of electoral fraud is certainly German as it is referred to in the impeachment article. However, getting ahead in the Senate is the worst defense. It doesn’t matter if Trump was right about fraud. the only thing that matters is whether he was looking for a rebellion rather than a recount.
Beyond the constitutional challenge, the second best argument is that this is not incitement but rather a protected speech that is addressed in Trump’s filing. The House emphasized Trump’s usage of “fight much harder”, “stop the theft” and “take our country back”. Not only does this language match previous Trump speeches, but it is also similar to the language used by Democrats. Indeed, Democrats have contested election votes in the past, and many contested the legitimacy of Trump’s inaugural election when violent protests erupted in Washington.
Finally, Trump can argue that this hasty impeachment denied him due process. Since the House claims it could indict Trump anytime after he left office, it would have given him an opportunity to respond and hear witnesses in the house. But that defense will be lost if Trump tries to turn this into an election fraud trial.
The filing of both sides is a bad sign of this process, which could become a raw reflection of our age of anger. No opinion is changed – just weeks of political winter.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney during impeachment in the Senate. Appointed by the House Republicans as an expert witness on the impeachment negotiations of Presidents Clinton and Trump, he has consulted with Senate Republicans on the historical and legal precedents of impeachment prior to the ongoing Senate trial. Follow him on Twitter @JonathanTurley.