Courts Can Still Hold Trump Accountable for Riot

       President Trump’s team of second-string lawyers began their defense in his 2021 impeachment trial by contending that the former president should be held accountable for the January 6 Capitol riot, if at all, not in the United States Senate but in criminal courts.

            With the Senate evenly divided between Democrats and Republicans, six Republican senators joined the Democrats in rejecting the Trump lawyers’ plea to bar the impeachment trial altogether. The evidence expertly presented by the House managers showed, to any sworn-to-impartiality juror, that Trump incited the mob that he had summoned to Washington to stage what proved to be a deadly insurrection at the seat of the United States government.

The U.S. Department of Justice, under a new attorney general unbeholden to Trump, should take Trump’s lawyer, Bruce Castor, at his word and open a criminal file against citizen Trump, no longer protected by presidential immunity. The former U.S. solicitor general Neal Katyal, commenting on CNN midway through the trial, suggested that Attorney General-designate Merrick Garland should put the case at the top of his to-do list.

With the trial over, former White House adviser David Gergen, also on CNN, agreed. “Certainly, the Department of Justice and the FBI have grounds to investigate Trump,” Gergen remarked.

Most significant in the House managers’ offer of proof was the new disclosure that the organizers of the Jan. 6 rally at the ellipse had initially gotten a permit only for a rally, not for a march to the Capitol. The additional permit for the march was sought only after the White House took charge of the event. Trump himself directed the mob to march to the Capitol, initially promising that he would join them but backing out apparently because of security objections from the Secret Service.

            The path to the two-thirds majority needed for a conviction was never open to the House of Representatives even though ten Republicans joined in approving the article of impeachment on Jan. 13, making it the most bipartisan House vote on impeachment in U.S. history. Trump’s acquittal by a 57-43 vote on Saturday was likewise the most bipartisan impeachment vote in U.S. history as seven Republicans joined in voting to convict Trump of incitement and potentially disqualify their former president from ever again holding office in the national government.

            The Trump lawyers—courtroom pit bulls rather than constitutional law experts—contested the “incitement to insurrection” with a mix of political vitriol, legal poppycock, whataboutism, gaslighting, evasion, and outright falsehoods, as documented by fact-checkers at the New York Times. Their opening argument failed when the Senate voted 56-44 on Feb. 9 that Trump, though out of office, was “subject to a court of impeachment for acts committed while president.”

            The argument, rejected by the vast majority of nonpartisan legal experts, failed on the basis of constitutional text and historical precedent, as shown by the House managers. The Impeachment Article itself (Art. I, sec. 3, cl. 7) lists after removal from office by conviction a second available sanction “disqualification to hold and enjoy any Office of honor, Trust, or profit under the United States.” The House managers also noted as precedent the 1875 impeachment of the Grant administration’s secretary of war, William Belknap, who had already resigned after being caught up in a corruption scandal. The Senate voted 37-29, after full debate, to try Belknap on the article of impeachment approved by the House, but he avoided conviction on a 35-25 vote, short of the two-thirds majority needed for conviction.

             Impeachment is not a criminal proceeding, but lawyers on both sides devoted lots of words during the five-day trial (Feb. 9-13) to a Supreme Court precedent applicable to a criminal case. The Court’s decision in Brandenburg v. Ohio (1969) held, in a case brought against a speaker at a Ku Klux Klan rally, that the First Amendment permits criminal prosecution for political advocacy only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            The House managers introduced as evidence on the first prong the “big lie” that Trump propagated over a two-month period that he failed re-election only because the election was stolen. They also emphasized Trump’s role in summoning supporters to Washington on the very day that Congress was scheduled to complete the Electoral College vote count to confirm Joe Biden’s victory in the presidential election.

            The evidence that the Capitol riot followed promptly after Trump’s speech to the crowd on the morning of Jan. 6 speaks for itself as satisfying the second prong of the Brandenburg test: “likely to incite or produce such [lawless] action.” The House managers also introduced evidence from some of the rioters themselves that they marched to the Capitol in response to Trump’s instructions. The violence on Jan. 6, according to the lead House manager Jamie Raskin, was “a culmination, not an aberration.”

            The House managers also showed Trump’s “propensity for violence” in political rallies and in tweets throughout his presidency. Would the evidence suffice for a beyond-a-reasonable-doubt criminal court jury? Juries are hard to predict, as any veteran court reporter can attest, but this courtroom observer is confident that a reasonable jurist would find this evidence sufficient to let the case go to the jury. And the case belongs in the courts, the one branch of the United States government that Trump has failed to pressure into submission.