After much anticipation, “The Trial Memorandum of the United States House of Representatives In the Impeachment Trial of Donald J. Trump” was released on Tuesday. The 80-page document lays out the facts underlying the impeachment, the primary arguments in favor of conviction, and includes detailed rebuttals to defenses likely to be raised by former President Trump.
Here is what you need to know about the brief authored by House impeachment managers Jamie Raskin (D-Md.), Diana DeGette (D-Colo.), David Cicilline (D-R.I.), Joaquin Castro (D-Texas), Eric Swalwell (D-Cal.), Ted Lieu (D-Cal.), Stacey Plaskett (D-Virgin Islands), Madeleine Dean (D-Pa.), and Joe Neguse (D-Col.).
The facts of January 6, 2021
The trial memo brief began with a dramatic retelling of the facts surrounding the Capitol insurrection on January 6, 2021—focusing both on the casualties and historical scale and impact:
On January 6, 2021, with Vice President Michael Pence presiding, Congress assembled to perform one of its most solemn constitutional responsibilities: the counting of electoral votes for President of the United States. This ritual has marked the peaceful transfer of power in the United States for centuries. Since the dawn of the Republic, no enemy—foreign or domestic—had ever obstructed Congress’s counting of the votes. No President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes. Until President Trump.
In a grievous betrayal of his Oath of Office, President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election. As it stormed the Capitol, the mob yelled out “President Trump Sent Us,” “Hang Mike Pence,” and “Traitor Traitor Traitor.” The insurrectionists assaulted police officers with weapons and chemical agents. They seized control of the Senate chamber floor, the Office of the Speaker of the House, and major sections of the Capitol complex. Members and their staffs were trapped and terrorized. Many officials (including the Vice President himself) barely escaped the rioters. The line of succession to the Presidency was endangered. Our seat of government was violated, vandalized, and desecrated. Congress’s counting of electoral votes was delayed until nightfall and not completed until 4 AM. Hundreds of people were injured in the assault. Five people—including a Capitol Police officer—died.
The brief then detailed Trump’s statements to the crowd, his refusal to immediately use his authority in an effort to quell the violence that ensued, and the terrible and fatal fallout of the attack on the U.S. Capitol.
The Roadmap to Conviction
The impeachment managers presented three pillars of Trump’s wrongdoing, each of which could support a conviction independently. Taken together, the brief argues, conviction is the only appropriate outcome.
1. Trump’s attempts to interfere with the election results was an unprecedented violation of his oath of office
“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be,” argued the impeachment managers.
The brief set Trump’s actions against the dramatic backdrop of the past several months, detailing how Trump’s incessant efforts to remain in office offended the very core of the Framers’s intent. Those who founded our republic were no strangers to mob violence or self-interested political warfare. Rather, “They drafted the Constitution to avoid such thuggery,” the brief said.
Not only was the current House justified in impeaching Trump, but the House of centuries past would have agreed: “They would have immediately recognized President Trump’s conduct on January 6 as an impeachable offense.”
A core value of American government has always been the peaceful transfer of power between presidential administrations. Though other presidents have been impeached for other kinds of misconduct, none has corrupted this particular jewel in the crown of democracy, impeachment managers stated:
Since President George Washington willingly relinquished his office after serving two terms, our Nation has seen an unbroken chain of peaceful transitions from one presidential administration to the next—that is, until January 6, 2021.
2. Trump’s actions caused personal, physical danger to members of Congress, the Vice President, and police officers
The wreckage caused by Trump went beyond the destruction of democracy; it put individual members of government in personal and immediate peril. The brief refers generally to the many accounts we have heard from those inside the Capitol on January 6.
“Members of Congress and their staffs were forced to improvise barricades and hiding places while they awaited rescue by law enforcement,” it reads. “Others were trapped in the House Chamber, where they seized gas masks and ducked behind furniture to avoid insurrectionists. Many feared for their lives as armed attackers battered doors and Capitol Police drew weapons.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.) said Monday in a lengthy and widely watched Instagram Live video that she thought she was “going to die.”
Since the attack on the Capitol, security has changed dramatically. Now, the complex “more closely resemble[s] a fortress, ringed by fences with barbed wire and heavily guarded by the Capitol Police and the National Guard.”
“That is a sorry state of affairs for our Nation,” lamented the brief, “one that no President should have played a role in bringing about.”
3. Trump’s conduct put the security of our entire nation at risk
In addition to the immediate human toll, the incitement of insurrection posed even broader risks to national security, impeachment managers argued.
“Most immediately, the insurrectionist mob had access to, and stole, sensitive materials and electronics—including a laptop from the office of the Speaker of the House,’ the brief said, apparently referring to the criminal case against Riley June Williams.
The national security risks alleged are threefold: 1) the devices might be used to infiltrate federal networks; 2) the insurrection could serve as an inspirational “rallying point” for other violent extremists who would carry out further insurrection; and 3) the entire event tarnished the international reputation of our country.
Others might be encouraged to act after seeing Trump successfully unite “distinct extremest groups into ad hoc coalition with one another,” the brief said.
Further, managers contended, “President Trump only made matters worse when he tweeted, in the evening, ‘Remember this day forever!’—a statement that armed extremists will indeed remember. (Sadly, it will be remembered too by the Members of Congress, their staffs, and the law enforcement officials who were attacked by the insurrectionist mob.) In all of these respects, President Trump made Americans less safe, particularly Americans who belong to communities targeted by right-wing extremist groups.”
“The Capitol riot has also hurt the United States in a less immediate, but no less significant way: it allows our adversaries to doubt the strength of our democracy,” Democrats asserted. “[S]tirred to action by a President who said ‘we love you’ during the assault,” Americas adversaries have used footage of the riot as “a propaganda bonanza.”
“[T]he sight of the U.S. Capitol shrouded in smoke and besieged by a mob whipped up by their unwillingly outgoing president” the argument continued, “‘is proof of the fallibility of Western democracy.'”
Anticipating Trump’s defenses
After laying out the primary arguments against Trump, the brief goes on to short-circuit the defenses the former president is likely to raise.
1. The impeachment process did not happen “too quickly”
As we have discussed before, some Trump defenders have pointed to the swiftness of this impeachment as a basis for its illegitimacy. As the brief points out, though, the underlying facts for this impeachment differ dramatically from those relevant to either Trump’s first impeachment, or those of other presidents. That is, Trump’s wrongful actions occurred in public.
“The events that form the basis for President Trump’s impeachment occurred in plain view,” stated the brief, “They are well known to the American people. Many Members of Congress were themselves witnesses to his conduct and its consequences.”
Wielding Trump’s preferred expression against him, the brief charged, “There is no basis on which President Trump could assert that what a horrified Nation saw with its own eyes, and heard with its own ears, is somehow ‘fake news.’ Accordingly, in this unprecedented circumstance, the House acted squarely within its constitutional responsibilities in swiftly and emphatically approving an article of impeachment.”
The consequence of impeachment (which is analogous to an indictment in a criminal proceeding) is, the brief pointed out, occurring no faster for Trump than it is for other individuals.
“Indeed, hundreds of people have already been arrested and charged for their role in the events of January 6,” managers argued. “There is no reason for Congress to delay in holding accountable the President who incited the violent attack, inflamed the mob even as it ransacked the Capitol, and failed to take charge of a swift law enforcement response because he believed such dereliction of duty might advance his political interest in overturning the results of an election that he lost.”
Given that impeachment is a political proceeding, the consequences of which do not involve potential loss of liberty, the point is an important one. Few objections have been raised about the speed of FBI investigations and corresponding arrests or indictments; impeaching a president for his role in the same event might appropriately follow a similar timeline.
2. Impeachment is not a criminal proceeding, therefore, criminal defenses are not applicable
Trump is likely to raise various procedural objections during the impeachment trial. He will almost certainly argue against the introduction of evidence, or about the standard of proof applied. The impeachment managers included a brief reminder that impeachment trials are not legal trials, writing, “Alexander Hamilton explained in the Federalist Papers, impeachable offenses ‘are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.'”
Impeachment trials are not criminal proceedings that carry risk of incarceration, nor are they civil trials that determine liability. They are political proceedings in which the Senate decides its own procedural rules on an ad hoc basis; it is a process that can oust a president from office, but cannot deprive a president of liberty or property. Indeed, this is why then-Chief Justice William Rehnquist admonished the prosecutors during the Bill Clinton impeachment against referring to senators as “jurors”.
The authors of the House brief for Trump’s second impeachment cannot predict every objection potentially raised during the upcoming trial, but their reminder as to the nature of the proceedings may preempt (or at least respond to) some.
3. Trump’s belief that he won the election does not justify his wrongdoing
The impeachment managers shut down any argument based on election results in its entirety. Other presidents also had trouble accepting their own defeats, noted the brief.
Andrew Jackson, Richard Nixon, and Al Gore all believed they’d been deprived rightful victories—”Yet despite their feelings of grievance, all of these Presidential candidates accepted the election results and acquiesced to the peaceful transfer of power required by the Constitution.”
“President Trump, alone in our Nation’s history,” impeachment managers said, “did not.”
The bottom line: “His belief that he won the election—regardless of its truth or falsity (though it is assuredly false)—is no defense at all for his abuse of office.”
4. The First Amendment does not protect Trump from the consequences of his statements
Many Trump supporters have already argued that Trump’s right to free speech under the First Amendment operates as a shield against impeachment. Though that argument flies in the face of any legitimate First Amendment analysis, it has been consistently reiterated. The impeachment brief addressed this defense by turning it on its head.
The First Amendment, the brief said, does not protect Trump against impeachment for his statements — it supports his impeachment on that basis.
“Holding him accountable through conviction on the article of impeachment would vindicate First Amendment freedoms— which certainly offer no excuse or defense for President Trump’s destructive conduct,” the brief argued. “Most fundamentally, the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.”
The brief even goes a step further, engaging in the First Amendment analysis Trump’s supporters say will defend him.
“Even if the First Amendment were applicable here,” the brief explained, “private citizens and government officials stand on very different footing when it comes to being held responsible for their statements.”
“As the leader of the Nation, the President occupies a position of unique power,” the argument went. Just as a president can ask a Cabinet Secretary to resign for things they said, Congress can demand that a president be disqualified for his or her statements.
Bringing home the silliness of any First Amendment defense, the brief reads, “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.”
The brief even raises the invalidity of arguments that Trump’s impeachment reflects “cancel culture.” Calling such an argument “a red herring,” the brief argued, “It would be perverse to suggest that our shared commitment to free speech requires the Senate to ignore the obvious: that President Trump is singularly responsible for the violence and destruction that unfolded in our seat of government on January 6.”
5. The Senate still has impeachment jurisdiction over Trump, even though he is no longer the president
Any argument based on timing (whether that lame duck presidents or past presidents) cannot be impeached is both “wrong” and “dangerous,” argued the brief. “There is no ‘January Exception’ to impeachment.”
Rather, the delicate transition time between administrations is to be vigorously protected against wrongdoing. Raising the now-oft-cited case of the impeachment of William Belknap, the brief argued that officials cannot escape the consequences of impeachment through resignation or term-end.
The brief then made reference to George Washington University Law professor Jonathan Turley, one of the few legal experts who has recently argued against a second Trump impeachment—despite his own past writings on retroactive impeachments:
Even Professor Jonathan Turley, who has publicly (who seems to have changed his long-held views on the subject less than a month ago) previously argued that impeaching former presidents for abuses in office is authorized by the Constitution and can serve as “a reaffirmation of the principle that, within this system, ‘no man in no circumstance, can escape the account, which he owes to the laws of his country.’’
The brief delved into both early American and British history, recounting proceedings against elected officials that were conducted after the official left office. Detailing once again the Framers’ intent, the brief concluded:
The Framers were too savvy to make up a new rule, at odds with centuries of historical practice, that would allow officials to escape accountability by resigning at the last minute, or by waiting until near the end of their tenure in office to commit abuses, or by concealing misconduct until after they left public service. This would create extremely dangerous and perverse incentives, especially for Presidents who sought to retain power by subverting election results in their final days. In designing the Constitution, the Framers aimed to ensure that the President could never become a King; they did not leave the Nation unprotected against abuse surrounding the transfer of power from one administration to the next.
The express language of the Constitution, the views of legal experts across the professional spectrum, and the history of the impeachments of Senator William Blount, Secretary of War William Belknap, and Judges Robert Archbald and George English all support impeachment and disqualification of Donald Trump, House Democrats argued.
The impeachment trial is scheduled to begin the week of Feb. 8.
[image via Drew Angerer/Getty Images]
Follow Law&Crime:
