Impeachment Managers Argue Trump Is 'Singularly Responsible' For Capitol Attack

Feb 2, 2021
Originally published on February 8, 2021 2:50 pm

Updated at 5:57 p.m. ET

The House impeachment managers accuse Donald Trump of summoning a mob to Washington, D.C., on Jan. 6, whipping the crowd "into a frenzy" and then aiming them "like a loaded cannon" at the U.S. Capitol, pinning the blame for the deadly violence that ensued directly on the former president.

The allegations are contained in a memo delivered to the Senate that presents an outline of the case against Trump that House impeachment managers plan to present on Feb. 9 when the trial begins.

Also Tuesday, Trump's lawyers filed an official response to the article of impeachment charging that Trump incited insurrection. In their 14-page filing, the former president's attorneys largely ignore the factual assertions contained in the House document, denying the allegation without presenting evidence, and asserting that it is up to the House to prove its case.

They argue that Trump did not incite the crowd on Jan. 6 "to engage in destructive behavior." They focus much of their reply on the argument that the Constitution's impeachment provision does not apply to a president who is no longer in office.

The dueling memos come a week ahead of Trump's second impeachment trial, although one key difference this time is that he has already been voted out of office.

In their 80-page brief, the House managers lay out their case against Trump and the grounds for convicting him even after he has left the White House.

"This trial arises from President Donald J. Trump's incitement of insurrection against the Republic he swore to protect," the House managers write.

"The House of Representatives has impeached him for that constitutional offense. To protect our democracy and national security — and to deter any future President who would consider provoking violence in pursuit of power — the Senate should convict President Trump and disqualify him from future federal officeholding."

The managers, led by Rep. Jamin Raskin of Maryland, argue that Trump is "singularly responsible" for the riot that overran the Capitol on Jan. 6, damaged the historic building and left five people dead.

"It is impossible to imagine the events of January 6 occurring without President Trump creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc," they write.

The managers' memo creates a slow drum roll of facts intended to prove that Trump, as early as July, began planning to undercut any election result in which he did not win. The House memo, for instance, quotes Trump's repeated claims that the only way he would lose would be "if the election is rigged."

The events of Jan. 6

They walk through the lead-up to January 6, the day, when members of Congress were counting Electoral College votes, noting that for weeks, Trump refused to accept the results of the 2020 election and perpetuated baseless claims that he won in a landslide and the vote was "stolen" from him.

"He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the Nation's continued existence," they write. "But every single court to consider the President's attacks on the outcome of the election rejected them."

With his options dwindling, they say, Trump turned to the Jan. 6 rally in Washington. inviting his supporters to come to Washington, to "stop the steal."

The House managers say Trump took the stage after his lawyer Rudy Giuliani had called for "trial by combat," and Trump's son had warned Republican lawmakers not to finalize the election results, declaring, "We're coming for you."

"Finally, President Trump appeared behind a podium bearing the presidential seal. Surveying the tense crowd before him, President Trump whipped it into a frenzy, exhorting followers to 'fight like hell [or] you're not going to have a country anymore,' " the managers write. "Then he aimed them straight at the Capitol, declaring: 'You'll never take back our country with weakness. You have to show strength, and you have to be strong.' "

They continue: "Incited by President Trump, his mob attacked the Capitol. This assault unfolded live on television before a horrified nation."

The managers argue Trump did nothing to call the riot off, even when under pressure to do so, which they say was a "dereliction of duty." And his first statement about the violence, hours later, sent a dual message, telling his supporters to go in "peace" while also telling them, "You're very special."

Trump's legal team responds

In their own memo outlining key arguments, Trump's lawyers Bruce Castor Jr. and David Schoen push back against the House allegations.

They argue that the Constitution requires that a person be in office to be impeached, and since Trump no longer occupies the presidency, the impeachment trial in the Senate is unconstitutional.

Schoen and Castor also say that Trump's remarks to the crowd on Jan. 6 are protected speech under the First Amendment. As for the assertion that Trump was pushing baseless claims about fraud, his lawyers argue that "insufficient evidence" exists to conclude that Trump's claims are inaccurate.

Schoen and Castor are new to Trump's defense team; his previous top impeachment lawyers parted ways with the former president on Saturday.

House managers tackle the constitutionality question

The House managers, in their brief, directly address the constitutional arguments advanced by the defense.

They argue that there is precedent for holding former officeholders responsible for their actions through impeachment, although none of those instances involved a president.

In a vote last week that could foreshadow a final acquittal vote, 45 Senate Republicans voted that impeaching a former president is unconstitutional.

They also argue that common sense is in their favor, saying, "There is no 'January Exception' to impeachment or any other provision of the Constitution."

"Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term," they write. "The Framers of our Constitution feared more than anything a President who would abuse power to remain in office against the will of the electorate. Allowing Presidents to subvert elections without consequence would encourage the most dangerous of abuses."

The managers also tackle Trump's "free speech" defense over his remarks on Jan. 6.

The First Amendment protects private citizens from the government but not government officials from accountability, they say.

The First Amendment also doesn't prevent Congress from removing an official whose statements undermine government interests.

"No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union — even though private citizens could be protected by the First Amendment for such speech," they argue.

Finally, even if Trump's actions while still in office were to be treated like the acts of a private citizen, he still wouldn't be protected by the First Amendment, they say, because speech that incites violence and lawless action is not protected.

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We now know more of how House managers will argue their case against former President Trump and how the ex-president will defend himself at a Senate trial next week. Some of the facts here were witnessed by millions on January 6 and in the months before. The defeated president duped his supporters with an elaborate con about the election. He then told a crowd to fight for him. And they marched on the Capitol and attacked January 6. NPR justice correspondent Ryan Lucas has been reading what advocates for each side say in their legal briefs. Ryan, good morning.

RYAN LUCAS, BYLINE: Good morning, Steve.

INSKEEP: I feel, in conversation with people, people are sometimes still confused about the basics. So I just want to lay it out again, remind people. He's been impeached by a vote of the House of Representatives. That's on his record. It's not the same as an indictment, but it's sort of like that. He's been charged. Next week, it goes to trial before the Senate. And managers from the House, which indicted him, make their case like prosecutors. So what is their case?

LUCAS: Well, they begin their case, actually, in the summer of 2020, saying that Trump back then was laying the foundations for what we ultimately saw on January 6. They cite interviews from the summer in which Trump refused to commit to a peaceful transfer of power if he lost. And then after the election, Trump repeatedly was pushing his baseless claims that the election had somehow been stolen. The House managers document those. And they say that Trump's rhetoric grew more and more incendiary as the weeks passed after the election and ultimately came to a crescendo on January 6 when he took the stage near the White House. The managers say, on that stage, Trump whipped the crowd into a frenzy and aimed them, quote, "like a loaded cannon" at the Capitol when he told them to, quote, "fight like hell." They say Trump incited the mob. They say he incited the violence. And for that, the House managers say he should be convicted and barred from holding office in the future.

INSKEEP: Who are the people in Trump's latest legal team? And how are they shaping their defense?

LUCAS: Well, Trump's two new lawyers are David Schoen and Bruce Castor Jr. And what they say in their filing is that the proceedings against Trump are unconstitutional because he is no longer in office. They say the Constitution requires that a person be in office to be impeached and tried before the Senate. And since Trump is clearly out of office, this trial, in their view, is moot. Now, there is a legal debate on this point. Scholars do come down on both sides of the question. The House managers, for their part, in their case, argued that this is, indeed, constitutional and that a president has to be held accountable for his actions from the first day to the last day of his presidency. They say there is no January exception. But what may be more pertinent here is that the constitutionality argument seems like something that's registering with a lot of Senate Republicans, since 45 of them voted last week that impeaching a former president was, in their view, unconstitutional.

INSKEEP: Yeah. That's politically pertinent. Although, of course, there's also this precedent where a former official was, in fact, put on trial before the Senate in the past. So we know what the facts of the precedent are there. How is the former president dealing with the big lie here, everything that he said falsely for months leading up to the January 6 attack?

LUCAS: Well, his lawyers brought up his - Trump's election fraud claims. But I wouldn't say that they focused on them. What they say is that when Trump publicly was challenging the election outcome that he is within his rights to do so - that he was just expressing his opinion. They also argue that there's insufficient evidence to conclude that Trump's claims of fraud are false. Now, his lawyers gloss over the fact that dozens of courts had rejected the Trump campaign's legal challenges to the vote. Instead, his lawyers spend their time in their brief denying allegations against their client. They deny that Trump incited the mob. They deny that he violated his oath of office. And they deny that he committed any sort of high crimes or misdemeanors.

INSKEEP: So what happens before the trial begins next week?

LUCAS: Well, we expect a full trial brief from Trump's legal team by next Monday. And, of course, we will keep an eye out to see whether any Republicans start to, perhaps, waver on supporting Trump.

INSKEEP: And, of course, a bunch of Republicans would have to vote to convict for there to be a conviction. NPR justice correspondent Ryan Lucas. Thanks.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.