II. The Need for the House to Impeach President Trump

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II. The Need for the House to Impeach President Trump

II. The Need for the House to Impeach President Trump

For the reasons stated herein, the President’s conduct easily meets the standard for committing an impeachable offense. Further, his prior and ongoing conduct confirm his imminent threat to our security and democracy if he remains in or holds any future office and, therefore, the House must impeach President Trump.

A. Standards for Impeachment

President Trump’s unprecedented actions in inciting an insurrectionist assault on the United States Capitol on January 6, 2021, necessitate that the House act swiftly to address this impeachable conduct.

His conduct demonstrates and cautions that, if left in office—or if allowed to hold office in the future—he will be a clear and present danger to the very foundation of our constitutional order and the safety and security of our nation. Under these unprecedented and extraordinary circumstances, the House neither needs nor can it afford to resort to a lengthy impeachment proceeding. To the contrary, it is entirely within the power of the House under the Constitution to act quickly.

On December 15, 2019, the Committee on the Judiciary of the House of Representatives issued a report entitled “Impeachment of Donald J. Trump President of the United States.”¹¹⁶ As that report explains, the House’s authority to structure an impeachment is rooted in two provisions of Article I of the Constitution. First, Article I vests the House with the “sole Power of Impeachment.”¹¹⁷ It imposes no other requirements as to how the House must carry out that responsibility. Second, Article I further states that the House is empowered to “determine the Rules of its Proceedings.”¹¹⁸ Taken together, these provisions give the House sole discretion to determine the manner in which it will investigate, deliberate, and vote upon grounds for impeachment.

¹¹⁶ See H. Rept. 116-346. at 28-75.

¹¹⁷ U.S. CONST. art I, § 2, cl. 5.

¹¹⁸ U.S. CONST. art. I, § 5, cl. 2.

House precedent confirms that the House may proceed directly to consideration of articles of impeachment on the House floor. As Jefferson’s Manual notes, “[i]n the House various events have been credited with setting an impeachment in motion,” including charges made on the floor, resolutions introduced by Members, or “facts developed and reported by an investigating committee of the House.”¹¹⁹ Indeed, any Member can call up a resolution containing articles of impeachment on the floor as a question of the privileges of the House. The House can dispose of the resolution in several ways including by voting on the resolution directly.

In the past, the House has conducted an inquiry to investigate allegations of impeachable misconduct against the President of the United States before voting directly on whether to adopt articles of impeachment. The unprecedented role President Trump played in inciting an insurrectionist assault on the United States Capitol on January 6, 2021, however, has created extraordinary circumstances that both demand the House act swiftly and obviate the need for the House to conduct a lengthy inquiry into his conduct. The urgency of the situation—as well as the fact that the President’s actions occurred in public, and many Members directly witnessed and were victim to the consequences of those actions—obviates the need for additional inquiry.¹²⁰

B. Application of Impeachment Standards to President Trump’s Conduct

As the Article of Impeachment sets forth, President Trump’s conduct easily satisfies the standards for a high Crime and Misdemeanor.

1. The Article of Impeachment Charges an Impeachable Offense

The Committee on the Judiciary’s December 15, 2019 report is incorporated herein by reference¹²¹

As discussed in the Committee’s prior report, under that standard, there can be no doubt that President Trump has committed “high Crimes and Misdemeanors.” On January 6, 2021, he incited a mob to violently besiege the Capitol while the House, Senate, and Vice President met in Joint Session to count the electoral votes. The President’s conduct undermined our national security, threatened the integrity of our democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government. Further, President Trump’s acts of incitement on January 6, 2021 followed his prior efforts to subvert and obstruct the certification of the election results. As noted, those efforts include, but are not limited to, a call in which he urged the Georgia’s Secretary of State, to “find” enough votes to overturn the Georgia Presidential election results and threatened state officials if they failed to accede to his demands.

¹¹⁹ Constitution, Jefferson’s Manual, Rules of the House of Representatives of the United States, H. Doc. No. 115- 177 § 603 (2019 ed.) (hereinafter “Jefferson’s Manual”).

¹²⁰ Committees of Congress are continuing to investigate misconduct relating to President Trump’s earlier efforts to interfere with the 2016 election and to consider related legislative reforms.

¹²¹ See H. Rept. 116-346; H. Doc. 116-95.

As constitutional commentators from across the ideological spectrum have recognized, this conduct is unquestionably impeachable.¹²² A President who incites violence against the Congress and three of the highest-level federal officials—and does so while Congress counts the electoral votes in an election that he lost—imperils the constitutional system. This offense is precisely the sort of conduct warranting impeachment and removal from office.

To the Framers, that conclusion would be self-evident. Their worldview was shaped by a study of classical history, as well as a lived experience of resistance and revolution. From that background emerged an exquisite sensitivity to the paired dangers of the mob and the demagogue, which they associated with “the threat of civil disorder and the early assumption of power by a dictator.”¹²³ Shay’s Rebellion in 1786 gave that concern heightened salience at the Constitutional Convention, where the Framers—fearful of unruly mobs—sought to restrain excesses of popular passion.¹²⁴ James Madison, in particular, worked hard “to avoid the fate of those ‘ancient and modern confederacies,’ which he believed had succumbed to rule by demagogues and mobs.”¹²⁵ Several of the Federalist Papers similarly warned against demagogues who would aggrandize themselves, and threaten the young Republic, by stirring popular fury and delusion.¹²⁶ The generation that came of age in the eighteenth century was familiar with leaders who incited angry mobs and threatened constitutional stability. They would have immediately recognized President Trump’s conduct on January 6, 2021. And they would not hesitate to declare that a President who incites a mob to charge, breach, and desecrate the Capitol had committed an impeachable offense.

¹²² See e.g. Frank O. Bowman, III, The Constitutional Case for Impeaching Donald Trump (Again), Just Security (Jan. 9, 2021); Dorf on Law (@dorfonlaw), Twitter (Jan. 6, 2021, 3:10 PM); Norman Eisen, The riot happened because the Senate acquitted Trump, Wash Post (Jan. 8, 2021); Noah Feldman, I Testified at Trump’s Last Impeachment. Impeach Him Again, Bloomberg (Jan. 7, 2021); David Landau and Rosalind Dixon, The 25th Amendment Can Remove Trump, but We Shouldn’t Stop There, N. Y. Times (Jan. 7, 2021); Stanford Law’s Michael McConnell on the 25th Amendment and Trump, Stanford Law School (Jan. 7, 2021); Michael Stokes Paulsen, The Constitutional and Moral Imperative of Immediate Impeachment, The Bulwark (Jan. 8, 2021); David Priess & Jack Goldsmith, Can Trump Be Stopped?, Lawfare (Jan. 7, 2021); John Podhoretz, Donald Trump Should Be Impeached and Removed from Office Tomorrow, Commentary Magazine (Jan. 6, 2021); Melissa De Witte and Sharon Driscoll, Stanford Scholars React to Capitol Hill Takeover, Stanford News (Jan. 6, 2021); Ilya Somin, A Qualified Defense of Impeaching Trump Again, Reason (Jan. 6, 2021); Cass Sunstein, Does the 25th Amendment Apply to Trump? Quite Possibly, Bloomberg (Jan. 7, 2021); Laurence H. Tribe & Joshua Matz, Yes, Congress should impeach Trump before he leaves office, The Washington Post (Jan. 8, 2021); Keith E. Whittington, The conservative case for impeaching Trump now, Wash. Post (Jan. 7, 2021); ACLU Again Calls for Impeachment of President Trump, ACLU Press Release (Jan. 10, 2021) (https://www.aclunc.org/news/aclu-again-calls-impeachment-president-trump).

¹²³ See Bernard Bailyn, The Ideological Origins of the American Revolution 282 (1967).

¹²⁴ See Jeffrey Rosen, American is Living James Madison’s Nightmare, The Atlantic (October 2018).

¹²⁵ Id.

¹²⁶ Alexander Hamilton, The Federalist Papers: No. 1.

That is particularly true when the President engaged in such conduct while Congress met to count. As the House Judiciary Committee explained in its previous impeachment report, the Framers viewed an attack on democracy—and the integrity of the Electoral College process, in particular—as presenting a paradigm case for impeachment:

The Framers also anticipated impeachment if a President placed his own interest in retaining power above the national interest in free and fair elections. Several delegates were explicit on this point when the topic arose at the Constitutional Convention. By then, the Framers had created the Electoral College. They were “satisfied with it as a tool for picking presidents but feared that individual electors might be intimidated or corrupted.” Impeachment was their answer. William Davie led off the discussion, warning that a President who abused his office might seek to escape accountability by interfering with elections, sparing “no efforts or means whatever to get himself re-elected.” Rendering the President ‘‘impeachable whilst in office’’ was thus “an essential security for the good behaviour of the Executive.” The Constitution thereby ensured that corrupt Presidents could not avoid justice by subverting elections and remaining in office.

George Mason built on Davie’s position, directing attention to the Electoral College: “One objection agst. Electors was the danger of their being corrupted by the Candidates; & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Mason’s concern was straightforward. He feared that Presidents would win election by improperly influencing members of the Electoral College (e.g., by offering them bribes). If evidence of such wrongdoing came to light, it would be unthinkable to leave the President in office—especially given that he might seek to avoid punishment by corrupting the next election. In that circumstance, Mason concluded, the President should face impeachment and removal under the Constitution. Notably, Mason was not alone in this view. Speaking just a short while later, Gouverneur Morris emphatically agreed that “the Executive ought therefore to be impeachable for . . . Corrupting his electors” …

When the President concludes that elections threaten his continued grasp on power, and therefore seeks to corrupt or interfere with them, he denies the very premise of our constitutional system. The American people choose their leaders; a President who wields power to destroy opponents or manipulate elections is a President who rejects democracy itself.¹²⁷

Given the Framers’ paramount concern for the integrity of the democratic process, and their fear that a President might seek to corrupt the Electoral College, there can be no doubt that President Trump committed “high Crimes and Misdemeanors” in unleashing a violent mob on the Capitol while Congress met to count Electoral College votes. Indeed, this timing was no coincidence: President Trump’s acts of incitement on January 6, 2021 were inextricably linked to a broader course of conduct aimed at delegitimizing the election results, obstructing and subverting the electoral process, and sowing discord and confusion in the Nation’s democratic system.

¹²⁷ See H. Rept. 116-346 at 52-53.

¹²⁸ James Madison, The Federalist Papers: No. 47.

¹²⁹ See H. Rept. 116-346 at 45-46; 145-148.

¹³⁰ Id. at 49.

¹³¹ Laurence H. Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment 8565 (2018).

Yet another aspect of President Trump’s conduct confirms that it ranks as impeachable: the existential threat it posed to the separation of powers. The Framers knew that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.”¹²⁸ To protect liberty, they wrote a Constitution that creates a system of checks and balances within the federal government. Some of those rules are expressly enumerated in our founding charter; others are implied from its structure or from traditions of inter-branch relations. As our history makes clear, a President may be subject to impeachment for conduct that usurps and destroys core constitutional prerogatives of Congress or the Judiciary.¹²⁹ From that premise, it is obvious that the President commits an impeachable offense if he engages in conduct, such as inciting a violent attack upon the Capitol, that places legislators in mortal peril and forces them to hurriedly evacuate the legislative chamber. The separation of powers cannot function if the President incites violence against the Congress—and if the Congress must proceed in fear of a President who has demonstrated his willingness to endanger its very security.

Of course, it was not only Congress whose security President Trump put at risk on January 6, 2021. His own Vice President was presiding over the Joint Session and was endangered. President Trump’s acts of incitement also harmed the national security of the United States—both by virtue of the intelligence risks resulting from a physical intrusion of the Capitol and by virtue of the signal it sent to the Nation’s adversaries, foreign and domestic. This, too, supports the conclusion that President Trump’s misconduct rises to the level of an impeachable offense: “Impeachment for betrayal of the Nation’s interest—and especially for betrayal of national security—was hardly exotic to the Framers.”¹³⁰

For all these reasons, the conduct charged in the Article of Impeachment constitutes a “high Crime and Misdemeanor” under the Constitution. “There comes a point at which a president can properly be impeached for his statements”¹³¹—and that point is indisputably reached when the President incites an assault on the legislature amid the constitutional process for the transfer of power. Both as an abusive exercise of presidential power, and as an instance of gross misconduct implicating our system of government committed while occupying the office of presidency, it falls within any reasoned interpretation of“high Crimes and Misdemeanors.”

2. President Trump Committed the Charged Impeachable Offense

On January 6, 2021, President Trump committed the impeachable offense of incitement of insurrection by willfully making statements that, in context, encouraged and foreseeably resulted in lawless action at the Capitol. As explained above, he set the stage for the Capitol attack in the months leading up to January 6th, and on that date, he exhorted the mob into a frenzy, aimed it like a loaded gun down Pennsylvania Avenue, and pulled the trigger. His statements and actions surrounding this act of incitement confirm the conduct charged in the article of impeachment.

President Trump expressly and impliedly encouraged his supporters to besiege the Capitol and engage in violent, unlawful conduct. The mob did not come together—united in purpose, mission, and plan—by accident. It did not engage in violence, or breach the Capitol’s defenses, without encouragement and provocation from President Trump. To the contrary, since Election Day, President Trump has done everything in his power, including taking steps beyond his lawful authority, to convince his supporters that they are victims of the greatest electoral fraud in history. He has blamed this “fraud” on state officials, state courts, federal courts, the media, Congress, and election administrators. He has convinced many of his supporters, falsely, that they actually voted him back into power and that their votes—indeed, their fundamental rights—have fallen victim to an array of nefarious forces working against them. To that end, he has repeatedly called on his supporters to “step up & FIGHT BACK” to resist “the steal.”¹³² He has personally threatened election officials, including Georgia Secretary of State Raffensperger, if they do not “find” votes or take steps needed to overturn the popular will.¹³³ Following his lead, President Trump’s supporters have engaged in harassment and violent threats—including calls for a senior official who oversaw the United States election infrastructure to be “taken out at dawn and shot.”¹³⁴ The president’s rhetoric led Gabriel Sterling, an election official in Georgia, to issue a prophetic warning in the aftermath of the election: “Mr. President . . . Stop inspiring people to commit potential acts of violence. Someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.”¹³⁵

Having promoted the false belief that his supporters are victims of a historic fraud—one that threatened not only America, but also their very safety and that of their families—President Trump called them to a “Save America Rally.” He planned that rally on the very same day that his supporters had been led to believe the Congress was assembled with Vice President Pence to carry out the final and most irreversible step of the conspiracy against them. In advance of the Rally, he told his supporters to prepare for a “Historic” and “wild” day: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”¹³⁶ In response to a supporter claiming that “[t]he calvary [sic] is coming, Mr. President!”, President Trump responded, “A great honor!”¹³⁷ And he made the target of his ire well-known: the Capitol and the officials meeting therein—including the Vice President, who he criticized publicly and privately as disloyal for failing to take unconstitutional measures to alter the election outcome.¹³⁸

¹³² Borzou Daragahi (@borzoi), Twitter (Nov. 5, 2020, 10:14 AM), https://twitter.com/borzou/status/1324369493901123584?s=20.; see also Speech: Donald Trump Holds a Political Rally in Dalton, Georgia - January 4, 2021 (Jan. 4, 2021), Factbase Videos, available at https://www.youtube.com/watch?v=kL_IpqRf8RM.

¹³³ Amy Gardner, ‘I just want to find 11,780 votes’: In extraordinary hour-long call, Trump pressures Georgia secretary of state to recalculate the vote in his favor, Wash. Post (Jan. 3, 2021).

¹³⁴ Matthew Brown, Trump campaign lawyer stirs outrage by saying ex-cyber chief should be ‘taken out at dawn and shot’, USA Today (Dec. 1, 2020).

¹³⁵ Gabriel Sterling of Sec of State’s Office Blasts Those Threatening Election Workers, GPB (Dec. 1, 2020), available at https://www.youtube.com/watch?v=jLi-Yo6IucQ.

¹³⁶ Dan Barry & Sheera Frenkel, ‘Be There. Will Be Wild!’: Trump All but Circled the Date, N. Y. Times (Jan. 6, 2021).

¹³⁷ Ed Pilkington, Incitement: a timeline of Trump’s inflammatory rhetoric before the Capitol riot, The Guardian (Jan. 7, 2021).

¹³⁸ Donald J. Trump Tweet(@realDonaldTrump), Twitter (Jan. 6, 2021, 1/6 1:00AM:00 AM) (online and searchable at http://www.trumptwitterarchive.com/archive); See also Id. at (Jan. 6, 2021 8:17 AM.).

At the January 6th rally, the President’s private lawyer, Rudy Giuliani took the stage and called for “trial by combat.”¹³⁹ The President’s son, Donald Trump Jr., warned Republican congressmembers who did not support his father that “we’re coming for you.”¹⁴⁰ When President Trump took the stage, his own address was riddled with statements calculated to toss a match into the powder keg he had created. He enflamed the crowd by repeating his election grievances. He directed their ire towards Congress, including by calling out specific legislators: “And we got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them.” He told them to “fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore.” And finally, after riling up the crowd and giving them their marching orders, he aimed them at the Capitol: “After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here.”¹⁴¹

As multiple lawmakers have observed, there can be no doubt that President Trump expressly and impliedly inflamed his supporters, pointed them straight at the Capitol, and encouraged them to take extraordinary, violent measures in response to a supposed evil conspiracy against them unfolding at the Capitol. As Senator Susan Collins explained: “The president does bear responsibility for working up the crowd and inciting this mob.”¹⁴² Similarly, Senator Sasse has observed: “I think it’s obvious that the president’s conduct wasn’t merely reckless and destructive. It was a flagrant dereliction of his duty to uphold and defend the Constitution.”¹⁴³ And the President’s own former Attorney General echoed,“orchestrating a mob to pressure Congress is inexcusable.”¹⁴⁴

¹³⁹ Natalie Colarossi, Bar Association Urged to Disqualify Giuliani Over ‘Trial by Combat’ Speech Before D.C. Riot, Newsweek (Jan. 9, 2021).

¹⁴⁰ Maggie Haberman, Trump Told Crowd, “You Will Never Take Back Our Country with Weakness,” N. Y. Times (Jan. 6, 2021).

¹⁴¹ Speech: Donald Trump Holds a Political Rally on The Ellipse - January 6, 2021, Factbase Videos (Jan. 6, 2021), available at https://www.youtube.com/watch?v=RTK1lm1jk60&feature=emb_logo.

¹⁴² Steve Mistler, Susan Collins: Trump ‘Does Bear Responsibility’ For Insurrection, Maine Public (Jan. 6, 2021).

¹⁴³ Steve Inskeep, Ben Sasse Rips Trump For Stoking Mob, Calls Josh Hawley’s Objection ‘Really Dumbass’, NPR (Jan. 8, 2021).

¹⁴⁴ Orion Rummler, Barr condemns Trump: “Orchestrating a mob to pressure Congress is inexcusable”, Axios (Jan. 7, 2021).

In the days leading up to the Save America Rally, President Trump touted the “thousands of people pouring into D.C.” who “won’t stand for a landslide election victory being stolen.”¹⁴⁵ Supporters of President Trump met across Washington, D.C., joined by his close allies, including General Michael Flynn and Roger Stone, and speakers rallied the crowd with calls of “We’re not backing down anymore” and “It is time for war.”¹⁴⁶ It was entirely foreseeable in this circumstance that the mob—fired up, some armed and armored, some with public plans for doing so—would engage in violence at the Capitol as an imminent result of President Trump’s encouragement and incitement at the rally.

It was also widely reported that militia groups and members had posted pictures with weaponry that they planned to bring to the rally, and had posted numerous times about how to storm and occupy the Capitol.¹⁴⁷ Several people had been arrested, including on weapons-related charges, for assaulting a police officer and simple assault.¹⁴⁸ The leader of the Proud Boys, a group the President previously told to “stand back and stand by”¹⁴⁹ on national television, was arrested for destruction of church property.¹⁵⁰ Recognizing the potential for violence, D.C. Mayor Muriel Bowser asked residents to stay away from the downtown area where the Rally would take place on Tuesday and Wednesday, and mobilized every city police officer.¹⁵¹

These events also make clear that President Trump acted willfully. He actively encouraged the mob to besiege the Capitol in defense of his supposed electoral victory. In context, it was readily foreseeable that this would result in violence and lawless action. And it did, in fact, have that result. Given all that, there can be no serious doubt that President Trump intended these reasonably foreseeable results encouraged by his own conduct. He may not have anticipated every detail, but any reasonable person would understand that inflaming a mob containing armed, angry supporters, and then directing them towards the Capitol with the goal of “fighting like Hell” and thwarting a supposed massive electoral conspiracy would result in violence and destruction. Indeed, the contrary inference—that the President accidentally incited the mob to violence, and that he was accordingly shocked and dismayed by the mayhem it caused—is squarely inconsistent with the facts.

¹⁴⁵ Donald J. Trump Tweet, (@realDonald Trump), Twitter (Jan. 5, 2021, 5:12 pm) (online and searchable at http://www.thetrumparchivetrumptwitterarchive.com/).

¹⁴⁶ Dan Barry et al., ‘Our President Wants Us Here’: The Mob That Stormed the Capitol, N. Y. Times (Jan. 9, 2021).

¹⁴⁷ Craig Timberg & Drew Harwell, Pro-Trump forums erupt with violent threats ahead of Wednesday’s rally against the 2020 election, Wash. Post (Jan. 5, 2021)

¹⁴⁸ Allan Smith, D.C. Police make several arrests ahead of major pro-Trump election protests, NBC (Jan. 6, 2021).

¹⁴⁹ ‘Proud Boys, stand back and stand by’: Trump doesn’t condemn white supremacists at debate, Wash. Post (Sep. 29, 2020).

¹⁵⁰ Judge bans Proud Boys leader from Washington, D.C., after arrest, NBC (Jan. 5, 2021).

¹⁵¹ Brandy Zadronzyny & Ben Collins, Violent threats ripple through far-right internet forums ahead of protest, NBC (Jan. 5, 2021).

That is evident, first and foremost, in how President Trump acted after the Capitol came under attack. While his supporters undertook a hostile occupation and ransacking of the Capitol— and after reports of gunshots and violence in the Capitol had become public on national television¹⁵²—the President made no effort to quell the violence and destruction. Just minutes after the Sergeant at Arms announced that the Capitol had been reclaimed from the mob, and much of the destruction had occurred, he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”¹⁵³ There was no denunciation of what had occurred, no urgent plea that his supporters lay down their arms, no national statement.¹⁵⁴ Instead, as Senator Sasse relayed from a conversation with senior White House officials, President Trump was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.”¹⁵⁵ He was “delighted.”¹⁵⁶ And while the Senators were in lockdown, President Trump called one of them, not to check on his wellbeing or assess security risks, rather to encourage the Senator to object to the Electoral College vote.¹⁵⁷

The President’s statements during the assault similarly confirm his intent. He tweeted multiple times, first to criticize the Vice President for not having “the courage to do what should have been done to protect our Country and our Constitution.”¹⁵⁸ Next, still not calling for the mob to leave the Capitol, or for a massive deployment of force to retake the building, he issued two vague calls for his supporters to “stay peaceful” and “remain peaceful” despite overwhelming, public evidence that the mob was actively engaging in violence and destruction inside the Capitol.¹⁵⁹ And finally, well into the siege, he released a video in which he again reiterated his claims of election fraud and said that the election that was “stolen from us.” While this video included a weak call for “peace” and “law and order,” he also told his supporters—a band of whom were wreaking destruction in the Capitol—that “we love you, you’re very special.”¹⁶⁰ To date, the President has taken no responsibility and shown no personal regret for his role in what occurred. This is clear evidence that the President acted willfully in inciting the mob.

¹⁵² CBS News (@CBSNews), Twitter (Jan. 6, 2021 3:56 PM), https://twitter.com/CBSNews/status/1346923577245896705; Rep. Elaine Luria (@RepElaineLuria), Twitter (Jan. 6, 2021, 1:46 PM), https://twitter.com/RepElaineLuria/status/1346890833266683904.

¹⁵³ Twitter locks Trump’s account after he encouraged his supporters to ‘remember this day.’, N. Y. Times (Jan. 8, 2021).

¹⁵⁴ Michael Levenson, Today’s Rampage at the Capitol, as It Happened, N. Y. Times (Jan. 6, 2021).

¹⁵⁵ Andrew Prokop, Republican senator: White House aides say Trump was “delighted” as Capitol was stormed, Vox (Jan. 8, 2021).

¹⁵⁶ Id.

¹⁵⁷ Sunlen Serfaty et al., As riot raged at Capitol, Trump tried to call senators to overturn election, CNN (Jan. 8, 2021).

¹⁵⁸ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 2:24 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

¹⁵⁹ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 2:38 PM); Id. at (Jan. 6, 2021, 3:13 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

¹⁶⁰ Petras, et al. Timeline: How a Trump mob stormed the US Capitol, forcing Washington into lockdown, Yahoo News (Jan. 8, 2021).

Both members of the mob and Members of Congress recognized that it was the President who had sent the mob to Congress, they reasonably understood what he was saying,¹⁶¹ and that it was he alone who could pull them back. A man inside the Capitol was captured on video saying: “Our president wants us here . . . We wait and take orders from our president.”¹⁶² Members of Congress, in turn, called on the President to call off his mob. As Representative Mike Gallagher tweeted during the Capitol occupation, “Mr. President. You have got to stop this. You are the only person who can call this off.”¹⁶³ Similarly, Mick Mulvaney, the President’s former Chief of Staff, tweeted, “The President’s tweet is not enough. He can stop this now and needs to do exactly that. Tell these folks to go home.”¹⁶⁴ But these pleas fell on deaf ears until well into the sacking of the Capitol. That further proves willful conduct.

Many others, including current and former members of President Trump’s administration, have recognized that the President intended to incite violence aimed at the Capitol. As now former- Secretary of Education Betsy DeVos told the President, “[t]here is no mistaking the impact your rhetoric had on the situation.”¹⁶⁵ Lawmakers similarly recognized the President’s intent. As Senator Lisa Murkowski remarked, the President “told his supporters to fight. How are they supposed to take that? It’s an order from the president. And so that’s what they did. They came up and they fought and people were harmed, and injured and died.”¹⁶⁶ Senator Mitt Romney echoed these sentiments: “What happened here today was an insurrection, incited by the President of the United States.”¹⁶⁷ So did Senator Sasse: “This violence was the inevitable and ugly outcome of the president’s addiction to constantly stoking division.”¹⁶⁸ As Representative Liz Cheney noted after President Trump told his mob to “get rid of” her: “There’s no question the president formed the mob, the president incited the mob, the president addressed the mob. He lit the flame.”¹⁶⁹ There is thus overwhelming evidence that President Trump committed the “high Crimes and Misdemeanors” charged in the article of impeachment against him.

¹⁶¹ Michael Phillips and Jennifer Levitz, One Trump Fan’s Descent Into the U.S. Capitol Mob, Wall Street Journal (Jan. 10, 2021). (“He said, ‘Hey, I need my digital soliders to show up on January 6,’ Mr. Sweet says of the President. ‘And we all did.’”).

¹⁶² Dan Barry, et al., ‘Our President Wants Us Here’: The Mob That Stormed the Capitol, N. Y. Times (Jan. 9, 2021); see also Amanda Seitz, Mob at U.S. Capitol encouraged by online conspiracy theories, AP (Jan. 7, 2021); Amy Brittain, et al., The Capitol mob: A raging collection of grievances and disillusionment, Wash. Post (Jan. 10, 2021)

¹⁶³ Editorial, Mike Gallagher is right: ‘Call it off, Mr. President’, Wisconsin State Journal (Jan. 6, 2021).

¹⁶⁴ Mick Mulvaney (@MickMulvaney), Twitter (Jan. 6, 2021, 3:01 PM), https://twitter.com/MickMulvaney/status/1346909665423196162.

¹⁶⁵ Betsy Devos Letter of Resignation (Jan. 7, 2021) available at https://int.nyt.com/data/documenttools/devos- resignation/abedee707cb0984a/full.pdf.

¹⁶⁶ James Brooks, Alaska Sen. Lisa Murkowski calls on President Trump to resign, questions her future as a Republican, Anchorage Daily News (Jan. 9, 2021).

¹⁶⁷ Today’s Rampage at the Capitol, as It Happened, N. Y. Times (Jan. 6, 2021).

¹⁶⁸ Michael Levenson, Steve Inskeep, Ben Sasse Rips Trump For Stoking Mob, Calls Josh Hawley’s Objection ‘Really Dumbass’, NPR (Jan. 8, 2021).

¹⁶⁹ Justine Coleman, Liz Cheney blames Trump for riots: ‘He lit the flame’, The Hill (Jan. 6, 2021).

3. President Trump’s Conduct Harmed Core National Interests

President Trump’s impeachable conduct, exacerbated by his further acts and omissions after he incited the crowd to attack the Capitol, grievously injured the national interests of the United States. It threatened democratic self-governance by interfering with the peaceful transition of power, imperiled a coequal branch of government, endangered our national security, and betrayed his oath of office and the trust of the American people.

a. Attack on Democratic Processes and the Peaceful Transition of Power

The insurrection incited by President Trump had a clear goal: attack, menace, obstruct, and ultimately prevent Congress in any way from carrying out its solemn constitutional duty to count the Electoral College vote. In fact, the rioters managed to delay the democratic processes for at least six hours. And, although the Joint Session reconvened and fulfilled its duty that same day, the lasting injury to our nation cannot be overstated.

At the heart of our Constitution is a commitment to popular sovereignty. At the core of that framework is the election of representatives to the United States Congress and the establishment of the Electoral College as the method of selection for the President and Vice President of the United States. The democratically elected Members of the Congress are charged with legislating and carrying important constitutional duties on behalf of the American people.

Under the Twelfth Amendment and the Electoral Count Act of 1887, the Congress is responsible for counting and the Electoral College votes, while the Vice President, as president of the Senate, plays a ministerial role in the proceedings.¹⁷⁰ In this way, the will of the American people is formally implemented, and the legitimacy to exercise the authorities of the national government bestowed on our elected federal officials. Another purpose of this process is to facilitate the orderly and peaceful transfer of power between elected officials.

The course of conduct President Trump pursued leading up to January 6, 2021 directly sought to undermine that very foundation of our Constitution. His conduct, contrary to our democracy, encouraged and foreseeably resulted in violent chaos aimed to subvert and obstruct the peaceful transfer of power. President Trump for weeks promoted not only false allegations of voter fraud, but the fringe constitutional theory that the Vice President is the sole arbiter of the Electoral College vote. The President then used the rage he had incited to encourage a physical assault on our the Capitol, in the very moments that the peaceful transfer of power administered by our elected officials was underway. In sum, the President’s conduct in inciting an insurrection against our government, designed to subvert and obstruct the results of our free and fair elections, caused serious harm to our nation’s fundamental interest in orderly democratic self-governance.

¹⁷⁰ U.S. CONST. amend. XII.; Electoral Count Act of 1887, Pub. L. 49-90, 24 Stat. 373.

The Framers included the power of impeachment to thwart exactly such attempts at eroding our nation’s commitment to popular sovereignty. As explained in the Judiciary Committee’s previous impeachment report from the 116th Congress: “[T]he true nature of this threat is its rejection of government by ‘We the People,’ who would ‘ordain and establish’ the Constitution … When the President concludes that elections threaten his continued grasp on power, and therefore seeks to corrupt or interfere with them, he denies the very premise of our constitutional system. The American people choose their leaders; a President who wields power to destroy opponents or manipulate elections is a President who rejects democracy itself.” ¹⁷¹

b. Imperiling a Coordinate Branch

By engaging in this course of conduct President Trump willfully incited violence against the United States Congress, a coequal branch of the United States government, and the Vice President of the United States. Indeed, the violence that ensued jeopardized the safety of nearly the entire Legislative Branch, their staff, the many non-partisan workers employed by Congress, and the law enforcement officers serving to protect the Capitol. The insurrection incited by the President also threatened the safety of the three most senior officials in the presidential line of succession: Vice President Mike Pence, Speaker of the House Nancy Pelosi, and President pro tempore of the Senate Senator Chuck Grassley.

As described in detail in this report, many Members of Congress and their staff were forced to hide under tables or in offices while they awaited evacuation by law enforcement, while others were trapped on the House and Senate floor. Many feared for their lives, as armed attackers banged on the doors, and Capitol Police drew weapons.¹⁷² Indeed, as set forth, at least five deaths occurred as a result of the violent mob’s ambush on our government.

In short, the insurrectionists incited by President Trump threatened the lives of everyone who works at the U.S. Capitol, including officials in the presidential line of succession, as well as the continued existence of a functioning Legislative Branch. As Representative Sean Maloney, who was present in the Capitol when the mob violence occurred, cautioned: “[f]or those pretending it’s something less than a violent insurrection, please watch and wake up. This is what [President Trump] and his enablers incited. He must be removed and held accountable.”¹⁷³

¹⁷¹ See H. Rept. 116-346 at 53. (emphasis added).

¹⁷² See e.g. Tasneem Nashrulla, Members Of Congress Described What It Was Like When A Pro-Trump Mob Stormed The Capitol, Buzzfeed (Jan. 6, 2021).

¹⁷³ Jon Swaine, Dalton Bennett, Joyce Sohyun Lee & Meg Kelly, Video shows fatal shooting of Ashli Babbitt in the Capitol, WashPo (Jan. 8, 2021); Sean Patrick Maloney (@RepSeanMaloney), Twitter (Jan. 8, 2021 2:28 PM), https://twitter.com/repseanmaloney/status/1347626297367941121?s=27.

c. Harm to Our Nation’s National Security

President Trump’s conduct directly harmed the national security of the United States. In the most immediate sense, the President’s incitement of the mob assault on the Capitol may have exposed sensitive materials and locations to the public creating immediate national security risks. In the long term, the insurrection caused lasting damage to the nation’s international reputation as a bastion of democratic order, undermining American “soft power” and emboldening our adversaries abroad.

Although there is not yet a complete account of the immediate consequences of the insurrection to our national security, the insurrectionists had access to, and stole, sensitive materials and electronics. As Michael Sherwin, acting United States attorney for the District of Columbia explained, “electronic items, were stolen from senators’ offices. Documents, materials, were stolen, and we have to identify what was done, mitigate that, and it could have potential national security equities. If there was damage, we don’t know the extent of that yet.”¹⁷⁴ Further, insurrectionists posted photos of areas in the Capitol generally off limits to the public, and some even livestreamed the attack on the internet. Both the Senate and the House, in coordination with federal law enforcement officials, will have to conduct an arduous top-to-bottom review to determine what devices have been stolen, whether documents have been taken or copied, and even if listening devices have been left behind by rioters.¹⁷⁵

In addition to this immediate damage, the insurrection incited by President Trump has likely done incalculable damage to the United States’ reputation abroad as an exemplar of democratic self-governance. This event was broadcast live, in real time. Accordingly, it threatens to undermine the U.S.’s moral authority and hamper our ability to persuade other countries to take actions beneficial to U.S. national interests in the future. It will take substantial public diplomacy work by future Presidents to overcome the international damage done to the prestige of the United States. As reported in the news, for America’s adversaries, “there was no greater proof of the fallibility of Western democracy than the sight of the U.S. Capitol shrouded in smoke and besieged by a mob whipped up by their unwillingly outgoing president.”¹⁷⁶

Already the insurrection incited by President Trump has been a propaganda boon to many authoritarian regimes. The Supreme Leader Ayatollah Khamenei of Iran said in a live televised speech that “[y]ou are now seeing the situation in the U.S. . . . This is their democracy and human rights, this is their election scandal, these are their values. These values are being mocked by the whole world. Even their friends are laughing at them.”¹⁷⁷ The foreign ministry of the People’s Republic of China made public statements justifying that government’s violent crackdown on Hong Kong pro-democracy protestors through comparisons to the rioters that attacked the U.S. Capitol.¹⁷⁸ And the President of Zimbabwe tweeted a call for the U.S. to end economic sanctions against that country’s authoritarian regime stating that “President Trump extended painful economic sanctions placed on Zimbabwe, citing concerns about Zimbabwe’s democracy” but that the mob attack on the U.S. Capitol “showed that the U.S. has no moral right to punish another nation under the guise of upholding democracy.”¹⁷⁹

¹⁷⁴ Brian Fung, Capitol riots raise urgent concerns about Congress’s information security, CNN (Jan. 8, 2021).

¹⁷⁵ Natasha Bertrand, Justice Department warns of national security fallout from Capitol Hill insurrection, POLITICO (Jan. 7, 2021).

¹⁷⁶ Alexander Smith & Saphora Smith, U.S. foes like China and Iran see opportunity in the chaos of Trump-stoked riot at Capitol, NBC News, (Jan. 8, 2021).

¹⁷⁷ Id.

¹⁷⁸ Id.; What Are Asian Governments Saying About the Storming of the US Capitol?, The Diplomat (Jan. 8, 2021); Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on January 7, 2021, Ministry of Foreign Affairs of the People’s Republic of China (Jan. 7, 2021)

¹⁷⁹ President of Zimbabwe (@edmnangagwa), Twitter (Jan. 7, 2021, 8:42 AM), https://twitter.com/edmnangagwa/status/1347176848694931457.

d. Betrayal of Oath of Office and of the American People’s Trust

President Trump’s incitement of the attack on the Capitol served only his interests. The President lost the election and—when he could not convince the courts or other elected officials to override—he engaged in disinformation and demagoguery to incite a mob in a last-ditch effort to retain power.

In other words, President Trump compromised our national security, the foundation of our democratic system, and our nation’s elected leaders, all in pursuit of his own personal and political advantage and self-interest. Through this conduct President Trump abdicated his Constitutional oath to faithfully execute our laws and his duty to place our nation’s interest, above his own. As President Trump’s former National Security Advisor H.R. McMaster characterized it: “It was, in every sense of the phrase, a dereliction of duty.”¹⁸⁰ Following the conduct that led to his impeachment in December 2019, President Trump, for all the country and all the world to see, has once again demonstrated that he is unfit for office and will use any official means at his disposal— regardless of the harm caused to our nation—to hold onto political power.

C. The Irrelevance of the Criminal Code and the Brandenburg Test

It may well be the case that President Trump’s conduct on January 6, 2021—and other actions that he took in seeking to overturn and subvert the certification of the election results— violated the federal criminal code. Ultimately, that is a judgment for prosecutors and courts to make. The only question here is whether President Trump’s conduct warrants impeachment. As the House Judiciary Committee has previously explained, “[o]ffenses against the Constitution are different in kind than offenses against the criminal code . . . Impeachment and criminality must therefore be assessed separately.”¹⁸¹ Accordingly, though it may indeed have done so, President Trump’s conduct need not have violated any federal criminal statutes in order for them to constitute “high Crimes and Misdemeanors” under the Constitution.

¹⁸⁰ H.R. McMaster (@LTGHRMcMaster), Twitter (Jan. 7, 2021, 3:05 PM), https://twitter.com/LTGHRMcMaster/status/1347273185641734144 (“The reasons for yesterday’s criminal assault on our Congress and election process are many. But foremost among them is the sad reality that President Trump and other officials have repeatedly compromised our principles in pursuit of partisan advantage and personal gain. Those who engaged in disinformation and demagoguery in pursuit of self-interest abdicated their responsibility to the American people. It was, in every sense of the phrase, a dereliction of duty”).

¹⁸¹ See H. Rept. 116-346 at 56.

Nor is the Supreme Court’s decision in Brandenburg v. Ohio relevant to the question of impeachment.¹⁸² In Brandenburg, the Court clarified that the First Amendment allows the criminal punishment of incitement. It then limited such liability to cases where “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”¹⁸³

To apply Brandenburg here—and to insist that President Trump cannot be impeached unless the Brandenburg test is met—would be to commit two fatal category errors.¹⁸⁴

The first error involves a misstatement of First Amendment law. The Free Speech Clause guarantees that private citizens can engage in certain forms of expression without government regulation or prohibition. But it applies very differently to speech by government officials and public employees. By virtue of his high office, President Trump is no ordinary citizen. He occupies a position of public trust and directs the operations of the Executive Branch. As a high-level public official, the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that they cannot be. That is a basic and well-established precept of First Amendment law. In fact, as Professor Ilya Somin observed, “Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn’t like.”¹⁸⁵

The second and more fundamental error involves a misunderstanding of the Impeachment Clause. For many of the same reasons that impeachment does not necessarily turn on criminality, it is not governed by a standard that defines when a person can be held responsible civilly or criminally for their speech. Impeachment is about preserving the Nation from a threat to the constitutional order, not imposing punishment. Nowhere did the Framers suggest that a President must be allowed to remain in office if his abuses involved speech that would otherwise be shielded from criminal regulation by the First Amendment. This would be a strange and irrational limitation: Presidents would be free to openly advocate the overthrow of the United States government, or the adoption of fascism, and Congress would be powerless to remove them on that basis. Moreover, given that many prior impeachable offenses have involved at least some conduct that might rank as protected speech, applying a rigid First Amendment rule in this field would risk obfuscating Presidential conduct—whether involving speech or not—that menaces the American democratic system.¹⁸⁶

¹⁸² 395 U.S. 444 (1969).

¹⁸³ Id. at 447.

¹⁸⁴ Constitutional scholars have recently elaborated on these category errors. See, e.g., Jonathan H. Adler, Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol, The Volokh Conspiracy (January 8, 2021); Ilya Somin, The First Amendment Doesn’t Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol, The Volokh Conspiracy (January 8, 2021).

¹⁸⁵ See id.

¹⁸⁶ H. Mis. Doc. No. 42, 40th Cong. (1868); H.Res.755, 116th Cong. (2019).

Simply put, President Trump has no free speech defense. President Trump is not a private citizen, free to say whatever he wants without accepting the consequences or recognizing the effects it might have on our system of government. As the head of the Executive Branch, his words can shake the nation—and so he is held to a higher standard than private citizens. Moreover, when it comes to the impeachment power, the question is not whether the President was free to say what he said. It is whether he has engaged in conduct that threatens the constitutional order. President Nixon engaged in speech when he ordered the cover-up of his crimes. President Trump engaged in speech when he sought to extort President Zelensky of Ukraine. Federal judges have engaged in speech when they abused their position. Yet neither the House nor the Senate have ever suggested that just because an impeachable offense involved speech, it cannot support impeachment unless some First Amendment standard is met.

Accordingly, the judgment for Congress to make is not whether President Trump had a free speech right to say what he said on January 6, 2021. It is whether that conduct qualified as a high Crime and Misdemeanor under the applicable constitutional standard. For the reasons set forth above, there can be no doubt that it did: inciting a mob to assault the Capitol while Congress meets in Joint Session to count the electoral votes in the presidential election results is plainly an impeachable offense.