Trump ‘singularly responsible’ for riots after aiming ‘loaded cannon’ at Capitol, impeachment managers say in brief

President created ‘a powder keg waiting to blow,’ with incendiary speech shortly before Capitol riot, managers argue

The nine Democratic House impeachment managers laid out their case against Donald Trump in a pre-trial brief filed on Tuesday, as the former president’s legal team filed a memorandum of its own in defence of his actions surrounding the 6 January insurrection at the US Capitol.

Mr Trump, the impeachment managers argue in their brief, was “singularly responsible” for fomenting resentment among millions of his supporters with lies about the 2020 election results, firing up a crowd of his supporters on 6 January based on those lies, and aiming them like a “loaded cannon” towards the US Capitol, where they sacked the building in a deadly riot that forced lawmakers to evacuate or find cover.

The Democrats’ 80-page trial memorandum, posted in full on the House Judiciary Committee website, provides a preview of how lead impeachment manager Jamie Raskin of Maryland will prosecute his case against Mr Trump.

“He summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. As the Capitol was overrun, President Trump was reportedly ‘delighted,’” the memo states, citing reporting from several news outlets about the president’s reaction in real time to the chaos at the Capitol.

“Rather than take immediate steps to quell the violence and protect lives, President Trump left his Vice President and Congress to fend for themselves while he lobbied allies to continue challenging election results,” the impeachment managers accuse in their memo.

The ex-president’s lawyers, meanwhile, wrote in their 14-page response to the impeachment that Mr Trump was within his rights to question the 2020 election results and galvanise his supporters to his cause.

“After the November election, the 45th president exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic 'safeguards' states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” they wrote.

As several legal scholars and pundits have pointed out, the Supreme Court ruled in 1969 that the First Amendment does not protect speech that incites lawlessness.

And dozens state and federal judges ruled against GOP lawsuits alleging that local election entities illegally altered election laws.

As the impeachment managers underscore in their memo from Tuesday, 61 of the 62 Republican legal challenges to the election results were summarily dismissed. The one that proceeded, a Pennsylvania case, was not substantial enough to affect the outcome of the election there, which broke in Mr Biden’s favour.

The trial will commence on 9 February.

House Democrats, along with 10 Republicans, impeached Mr Trump last month (13 January) for inciting the mob that stormed the US Capitol just a week earlier (6 January), interrupting Congress’ certification of Mr Biden’s electoral victory for several hours by sending lawmakers fleeing for their lives from the House and Senate chambers.

The evidence

The Democrats’ Tuesday trial brief outlines how the former president spent countless hours before the press and his supporters during his final year in office casting doubt on the legitimacy of the 2020 election even before it happened, saying mail-in voting would lead to rampant voter fraud. After the election, Mr Trump, his campaign team, and dozens of congressional Republicans spent weeks challenging Mr Biden’s victory citing disproven conspiracy theories that were summarily dismissed in court for having no supporting evidence.

Throughout December, Mr Trump egged on rallygoers chanting “stop the steal” and falsely proclaimed himself the real winner of the 2020 contest, Tuesday’s memo from the Democrats details.

On 6 January, the day Congress was set to certify Mr Biden’s victory in the Electoral College, Mr Trump told throngs of his supporters gathered in Washington that they were “not going to have a country anymore” unless they fought for it.

“He insisted that the election had been ‘rigged’ and ‘stolen,’ and that his followers had to ‘fight like hell’ and ‘fight to the death’ against this ‘act of war,’ since they 'can't let it happen’ and 'won't take it anymore!'” the impeachment managers recount in their brief.

“These statements turned his ‘wild’ rally on January 6 into a powder keg waiting to blow. Indeed, it was obvious and entirely foreseeable that the furious crowd assembled before President Trump at the ‘Save America Rally’ on January 6 was primed (and prepared) for violence if he lit a spark,” the impeachment managers write.

That’s exactly what happened, according to the memo.

At the end of his speech, the president exhorted his supporters to march on Capitol Hill, where they overran police, ran roughshod through the Capitol, and, in some cases, tried to hunt down public officials, including Mr Trump’s own vice president, Mike Pence.

“Videos of the events show that dozens of the insurrectionists specifically hunted Vice President Pence and House Speaker Nancy Pelosi — the first and second in the line of Presidential succession, respectively,” the impeachment managers’ brief states.

The arguments

Several Senate Republicans — 17 of whom the impeachment managers will need to win over to successfully convict Mr Trump with the requisite two-thirds majority —  have already acknowledged that Mr Trump bears some responsibility for inspiring the Capitol insurrection on 6 January.

But they have been publicly skeptical that the Constitution allows a former president to be put on trial in the Senate — a tenuous legal position, most constitutional scholars from across the ideological spectrum agree, but one they are entitled to since each senator acts as his own judge and jury in an impeachment trial.

Nevertheless, that’s the defence Mr Trump’s legal team will be leaning on for his acquittal.

“The constitutional provision requires that a person actually hold office to be impeached. Since the 45th president is no longer ‘president,’ the clause ‘shall be removed from Office on Impeachment for...’ is impossible for the Senate to accomplish,” the president’s lawyers, Bruce Castor and David Schoen, argue in their pre-trial brief.

It’s a shallow effort to undermine the prosecutors’ case, suggested Dale Carpenter, a constitutional law professor at Southern Methodist University.

“No federal court is even going to consider arguments about whether a conviction is permissible or warranted. Only the ‘court of impeachment’ consisting of the Senators themselves will decide this matter. Therefore, the former president's response is a political — rather than legal — defense. He's counting on the fact that few Republicans will dare vote to convict him, regardless of the merits,” Mr Carpenter said.

Some Republican senators, such as Florida’s Marco Rubio, have argued that the impeachment trial, irrespective of the evidence or its constitutionality, will only serve to further divide the American populace along partisan lines.

“I think the trial is stupid. I think it’s counterproductive. We already have a flaming fire in this country and it’s like taking a bunch of gasoline and pouring it on top of the fire,” Mr Rubio said in an interview with Chris Wallace of Fox News last month.

The House impeachment managers’ pre-trial brief filed on Tuesday addresses each of those arguments, which they will have to dismantle if they are to successfully convict Mr Trump and bar him from ever holding federally elected office again in the future.

“This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior,” the managers argue.

“Indeed, it is difficult to imagine a case that more clearly evokes the reasons the Framers wrote a disqualification power into the Constitution,” the memo states.

As for the argument of whether the Constitution allows a former federal official from being impeached, the House managers’ brief highlights multiple cases throughout US history where a former official has been tried.

The memo also highlights the obvious loopholes for justice permitted by a reading of the Constitution that prohibits post-service trials.

“The Constitution does not allow officials to escape responsibility for committing impeachable offenses by resigning when caught, or by waiting until the end of their term to abuse power, or by concealing misconduct until their service concludes,” the impeachment managers argue.

What’s more, they point out, the language of the Constitution plainly states in Article I, Section 3, Clause 6: “The Senate shall have the sole Power to try all Impeachments.”

Legal scholars, including former federal judges appointed by Republican presidents, have written extensively on how that phrase provides standing for this trial and others.

“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense,” the managers conclude, “it is hard to imagine what would be.”