III. The Need for Immediate Consideration of Impeachment

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III. The Need for Immediate Consideration of Impeachment
1. A. Imminent Threat to the United States
2. B. The Need to Establish Precedent That Such Conduct by a President Is Unconstitutional and Contrary to Our Democratic Values

III. The Need for Immediate Consideration of Impeachment

President Trump’s behavior requires immediate congressional action.

First, President Trump poses an imminent threat to the safety and security of the United States. His continued presence in office is a clear and present danger to the United States. He has interfered with the peaceful transition of power and his actions show that he will continue to do so unless removed. He incited a mob to violence in order to try to overturn an election he lost and to disrupt the Joint Session of Congress that would confirm the result. President Trump not only failed to stop his supporters from invading the Capitol, he encouraged and supported their efforts. As Congress came under threat, his responsibility was to turn the mob away. But did not instruct supporters to call off their attack. Instead, as a sworn federal law officer lay injured and dying, and government officials raced to protect themselves from the armed mob, President Trump continued his attacks on Vice President Pence for failing to overturn the election results, spread false claims that he had won the election, called Members of Congress to lobby them to continue to object to the counting of electors in States won by President-elect Biden, and reassured the insurrectionists that they were “loved.”

Since then, instead of expressing remorse about his conduct, he continues to deny responsibility for the consequences of his actions, justifying the mob’s behavior through his false claims of election fraud. Recent events may well have emboldened President Trump’s supporters to continue their efforts to disrupt the transfer of power before or on January 20, 2021. The risk that President Trump will once again support this disruption to the peril of our security and democracy is too great to leave him in office for the remaining days of his term.

Second, it is equally important that Congress send a clear message and establish a precedent that the President’s conduct subjects him to impeachment and removal from office. That message may not be well received by President Trump and his supporters, but Congress has an obligation to warn future presidents that conduct of this nature is incompatible with the Office of the Presidency. This message must be sent even on the President’s last day in office. There is no merit to the startling and dangerous idea that a president may engage in high Crimes and Misdemeanors in their final weeks in office and escape the operation of the Impeachment Clause. President Trump incited an insurrection to try to break the Constitutional order, overturn an election, and prevent the ratification of a new President elected by the people in a free and fair election. In these circumstances, he has left the House of Representatives no choice.

A. Imminent Threat to the United States

President Trump’s impeachable offense of incitement—as well as his conduct leading up to and his subsequent acts and omissions during the mob’s unlawful entry into the Capitol— demonstrate why he cannot be permitted to remain in office. President Trump failed to defend the Capitol. His conduct on January 6th and afterwards gives no reason to hope that he will adequately oversee the necessary preparations and security for the inauguration of President-elect Biden on January 20, 2021, and instead suggests the opposite. Moreover, his actions on January 6th are consistent with a long pattern of behavior where President Trump has tried to stir up lawless extremism, overturn the results of the election, and obstruct the lawful certification of electors.

1. President Trump Failed to Protect the Capitol, the Vice President, and Members of Congress During the Joint Session of Congress

Although President Trump did not literally march to the Capitol with his supporters after his speech on January 6th as he said he would, his instructions and intentions guided the crowd that day as surely as if he were at the head of the mob he orchestrated. His supporters thought they were doing President Trump’s bidding by seeking to disrupt the Joint Session of Congress that would declare that President-elect Biden won the election. In fact, they directly said so on social media, in live videos, and when interviewed by the police following arrests.

As President Trump’s supporters attacked the Capitol, the President did nothing. At 1:00 PM on January 6th, as required by the 12th Amendment and the Electoral Count Act, Congress met in Joint Session to count the electoral votes.¹⁸⁷ By 1:22 PM, Capitol Police had already begun issuing emergency evacuation orders.¹⁸⁸ The crowd that had gathered to watch President Trump’s speech walked to the Capitol, and had begun to breach the security barriers surrounding the Capitol. President Trump watched the mob of his supporters attack the Capitol on television as they occurred.¹⁸⁹

¹⁸⁷ Domenico Montanaro, Timeline: How One Of The Darkest Days In American History Unfolded, NPR (Jan. 7, 2021)

¹⁸⁸ Chris Marquette et al., Pro-Trump protesters storm Capitol during Electoral College certification, causing lockdown, Roll Call (Jan. 6, 2021) (At 1:22 PM Capitol Police ordered the evacuation of the Cannon House Office Building and at 1:47 PM the department announced the evacuation was all clear. However, by 2:03 PM Capitol Police issued its relocation order for Cannon House Office Building and by 2:18 PM Capitol Police had issued its lockdown of the Capitol complex)

¹⁸⁹ Maggie Haberman, Trump Told Crowd, “You Will Never Take Back Our Country with Weakness. N. Y. Times (Jan. 6, 2021).

Instead of acting to stop the riot, however, President Trump continued to criticize those officials he viewed as not sufficiently supportive. He disparaged Vice President Pence, who refused to overturn the election, rightly recognizing that he did not have the authority to do so under the Constitution.¹⁹⁰ At 1:49 PM—while the Capitol was under siege—President Trump tweeted a video of the rally.¹⁹¹ In the speech that he retweeted, he told the same crowd that was now storming the Capitol that “our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with, we will stop the steal. . . . you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”¹⁹² In other words, just as his supporters were beginning to act, President Trump tweeted the very speech encouraging them to “be strong” and repeating the debunked lies about the election.

By 2:20 PM, the entire country saw on live television that the mob had caused both the House and the Senate to adjourn.¹⁹³ Yet at 2:24 p.m., President Trump tweeted his anger about Vice President Pence: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”¹⁹⁴ These statements occurred while the Capitol was under siege, insurrectionists roamed its halls, and Members of Congress huddled to protect themselves from the intruders.

President Trump—watching the violence unfold on television and his mob of supporters disrupt the proceedings—was “borderline enthusiastic because it meant the certification was being derailed.”¹⁹⁵ His reaction “genuinely freaked people out”¹⁹⁶ and he “repeatedly refused requests to get him to say something clearly rejecting the violence.”¹⁹⁷ Although he tweeted twice in the mid-afternoon asking the crowd to be “peaceful,” these statements were not sufficient and were overshadowed by his other words. He told them to “stay” peaceful although he could clearly see they were anything but peaceful. Indeed, in a video issued at 4:17 PM, President Trump opened by telling the mob, “I know your pain. I know you’re hurt. We had an election that was stolen from us,” and then told them, “We love you, you’re very special.”¹⁹⁸ And at 6:01 PM, President Trump appeared to justify and celebrate the day’s events: “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.”¹⁹⁹ He concluded, “Remember this day forever!”²⁰⁰

¹⁹⁰ Id.

¹⁹¹ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 1:49 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

¹⁹² Julia Jacobo, This is what Trump told supporters before many stormed Capitol Hill, ABC News (Jan. 7, 2021).

¹⁹³ Shelly Tan et al., How one of America’s ugliest days unraveled inside and outside the Capitol, Wash. Post (Jan. 9, 2021).

¹⁹⁴ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 2:24 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

¹⁹⁵ Kaitlan Collins (@kaitlancollins), Twitter (Jan. 6, 2021, 10:34 PM), https://twitter.com/kaitlancollins/status/1347023890959228933.

¹⁹⁶ Id.

¹⁹⁷ Maggie Haberman (@maggieNYT), Twitter (Jan. 6, 2021, 11:19 PM), https://twitter.com/mknz/status/1347036422360813571.

¹⁹⁸ Petras et al., Timeline: How a Trump mob stormed the US Capitol, forcing Washington into lockdown, Yahoo News (Jan. 8, 2021).

¹⁹⁹ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 6:01 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

²⁰⁰ Id. (emphasis added),

During the attack, Vice President Pence, Members of Congress, and staff were sheltering in secure locations. Spurred by the false claims of fraud, some of the attackers said, “Tell Pelosi we’re coming for that [expletive],” and “Hang Mike Pence.”²⁰¹ Some attackers carried zip ties intended to be used as handcuffs.²⁰² A noose was hung outside the Capitol.²⁰³ Multiple members of the Capitol Police were severely injured or killed.²⁰⁴

President Trump, however, was not focused on the security or well-being of those under siege. Instead, he was continuing to try to overturn the election and calling Senators to object to Biden electors. Immediately after the Senators had been evacuated from the Senate floor, President Trump called Senator Mike Lee—apparently trying to reach Senator Tommy Tuberville.²⁰⁵ Senator Lee handed his phone to Senator Tuberville and the President asked him to make more objections to the Electoral College vote.²⁰⁶ And later that night, President Trump’s lawyer Rudy Giuliani tried to take advantage of the chaos by following up on President Trump’s call. He left a message with Senator Tuberville to continue to object “so that we get ourselves into tomorrow.”²⁰⁷ In short, President Trump’s focus during and after the attack that day was not on trying to protect the safety or security of the Capitol. Instead, he was trying illegitimately to derail the Joint Session that would officially count the Electoral College votes confirming President-elect Biden’s victory.

²⁰¹ Matthew S. Schwartz, As Inauguration Nears, Concern Of More Violence Grows, NPR (Jan. 9, 2021).

²⁰² Devlin Barrett et al., FBI focuses on whether some Capitol rioters intended to harm lawmakers or take hostages, Wash. Post (Jan.8, 2021).

²⁰³ Rebecca Shabad, Noose appears near Capitol; protesters seen carrying Confederate flags, NBC News (Jan. 6, 2021).

²⁰⁴ Peter Hermann & Julia Zauzmer, Beaten, sprayed with mace and hit with stun guns: police describe injuries to dozens of officers during assault on U.S. Capitol, Wash. Post (Jan. 11, 2021); Evan Hill et al., ‘They Got a Officer!’: How a Mob Dragged and Beat Police at the Capitol (N. Y. Times Jan. 11, 2021); Loss of USCP Officer Brian D. Sicknick, United States Capitol Police Press Release (Jan. 7, 2021).

²⁰⁵ Sunlen Serfaty et al., As riot raged at Capitol, Trump tried to call senators to overturn election, CNN (Jan. 8, 2021).

²⁰⁶ Id.

²⁰⁷ Id.

Finally, the threat of violence has not subsided. Some of President Trump’s supporters have said they will return to Washington, D.C. prior to the Inauguration to foment violence: “Many of Us will return on January 19, 2021, carrying Our weapons, in support of Our nation’s resolve, to which [sic] the world will never forget!!!”²⁰⁸ Other reports suggest a proposed second attack on January 17th, along with attacks on state capitols.²⁰⁹ Federal law enforcement has warned that armed protests are being planned in state capitols in the days leading up to and on Inauguration Day, with groups planning to “storm” government offices.²¹⁰ Additionally, Capitol Police have been reported to have briefed lawmakers of three more potential protests at the Capitol in coming days, including one which would involve “insurrectionists forming a perimeter around the Capitol, the White House and the Supreme Court, and then blocking Democrats from entering the Capitol ― perhaps even killing them ― so that Republicans could take control of the government.”²¹¹

President Trump has demonstrated that he is unfit to lead and is a danger to the Nation. Instead of trying to stop these attacks, he incited them. Instead of defending the Capitol, he encouraged the breach of its barricades. Instead of condemning the insurrectionists, he praised them. Accordingly, our country can take no chances in the remaining days of President Trump’s Presidency.

2. President Trump Has Demonstrated No Remorse Since January 6th

Since the attack on the Capitol, the President has shown no remorse for his role in inciting the violence. President Trump has failed to make any public statement that unambiguously condemns the actions of his supporters in attacking the Capitol—and he has utterly refused to acknowledge his own role in fomenting the insurrection. Instead, insisting to reporters that his speech prior to the insurrection was “totally appropriate.”²¹²

Far from it. President Trump’s statements since the events of January 6th have only fanned the flames. That night, after law enforcement had succeeded in clearing many of the attackers, the President excused and even celebrated their criminal actions, declaring them “great patriots” who had “been badly & unfairly treated for so long,” and urging them to “Remember this day forever!”²¹³ Because this incendiary statement violated Twitter’s standards, the President’s tweet was first flagged and later removed by Twitter, and the President was initially suspended from using his Twitter account for 12 hours,²¹⁴ “due to the risk of further incitement of violence.”²¹⁵ Similarly, YouTube, Instagram, and Facebook, within 24 hours, removed from their platforms a similarly inflammatory video the President had released earlier that day. Facebook justified its removal of the video because of its conclusion that the President’s words on balance “contribute[d] to rather than diminishe[d] the risk of ongoing violence”²¹⁶

²⁰⁸ Matthew S. Schwartz, As Inauguration Nears, Concern Of More Violence Grows, NPR (Jan. 9, 2021).

²⁰⁹ Devlin Barrett et al., FBI focuses on whether some Capitol rioters intended to harm lawmakers or take hostages, Wash. Post (Jan.8, 2021).

²¹⁰ Aaron Katersky & Celia Darrough, Armed protests being planned at all 50 state capitols, FBI bulletin says, ABC News (Jan. 11, 2021).

²¹¹ Matt Fuller, House Democrats Briefed On 3 Terrifying Plots To Overthrow Government, Huff Post (Jan. 12, 2021).

²¹² Kevin Liptak & Betsy Klein, Defiant Trump denounces violence but takes no responsibility for inciting deadly riot, CNN (Jan. 12, 2021).

²¹³ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 6:01 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

²¹⁴ Mike Snider, President Trump deletes tweets after Twitter, Facebook and Instagram lock down accounts for ‘violations’, USA Today (Jan. 6, 2021).

²¹⁵ Twitter Safety (@TwitterSafety), Twitter (Jan. 8, 2021, 6:21PM), https://twitter.com/TwitterSafety/status/1347684877634838528.

²¹⁶ Our Response to the Violence in Washington, Facebook (Jan. 6, 2021).

On January 7, despite pleas from advisers and allies to address the horrified nation, President Trump remained publicly silent throughout the day—failing to take responsibility for his actions or to take any step to salve the wounds suffered by the nation and government that he had sworn an oath to serve.²¹⁷ That evening, the President finally addressed the nation in a prerecorded, scripted video. Although the President’s recorded remarks belatedly acknowledged that “demonstrators who infiltrated the Capitol” had “defiled the seat of American democracy,” he failed to rebuke his supporters for attacking the halls of Congress in his name.²¹⁸ Most importantly, the President expressed no remorse for—and did not even acknowledge—his own central role in inciting the attackers to desecrate the seat of American government and endanger the lives of thousands of men and women, including Capitol Police and other law enforcement, Members of Congress, Capitol and congressional staff, and many others working in service of the American government on January 6, 2021.²¹⁹

In the ensuing days, the President’s absence of remorse became even more stark. Instead of working to repair the damage he had caused, he added yet more fuel to the anti-democratic fire his past conduct had ignited. On January 8th, the President tweeted: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”²²⁰ That same day, the President announced by tweet that he would “not be going to the Inauguration on January 20th” to observe the sacred American tradition of the peaceful transfer of power from one President to the next.²²¹

Later that day, the President used the White House’s official @POTUS account to tweet yet more inflammatory material, falsely asserting that “Twitter employees have coordinated with the Democrats and the Radical Left in removing my account from their platform, to silence me— and YOU, the 75,000,000 great . . . patriots who voted for me” and threatening: “We will not be SILENCED!”²²² To this day, the President refuses to acknowledge or express any hint of personal remorse for his role in the January 6th insurrection, instead publicly claiming no responsibility²²³.

²¹⁷ See Philip Rucker et al, After inciting mob attack, Trump retreats in rage. Then, grudgingly, he admits his loss, Wash. Post (Jan. 7, 2021).

²¹⁸ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 7, 2021, 7:10 PM) (online and searchable at http://www.trumptwitterarchive.com/archive).

²¹⁹ To the contrary, the President told yet more lies, falsely stating that he had “immediately deployed the National Guard and federal law enforcement to secure the building and expel the intruders”—when in fact President Trump took no action to protect the Capitol or those inside it.

²²⁰ Donald J. Trump (@realDonaldTrump), Twitter, (Jan. 8, 2021, 9:46 AM) (online and searchable at http://www.trumptwitterarchive.com/archive)

²²¹ Id. at (Jan. 8, 2021, 10:44 AM).

²²² Id; See also Salvador Rodriguez, Trump tweets from POTUS handle account, says looking ‘at the possibilities of building out our own platform’, CNBC (Jan. 8, 2021).

²²³ Kevin Liptak & Betsy Klein, Defiant Trump denounces violence but takes no responsibility for inciting deadly riot, CNN (Jan. 12, 2021).

In stark contrast to the President, Republican Members of Congress and those in the Administration have widely recognized and expressed horror at the attack on the Capitol and the President’s role in inciting it. Immediately upon returning to their respective chambers after the attackers had been forcibly removed, members of the President’s own party in the House and Senate recognized that “what happened here today was an insurrection, incited by the President of the United States.”²²⁴ In public statements on the floor of Congress and elsewhere, the President’s fellow Republicans made clear: “There’s no question the president formed the mob. The President incited the mob. The President addressed the mob. He lit the flame.”²²⁵ They declared that the attack on the Capitol was “the inevitable and ugly outcome of the President’s addiction to constantly stoking division,” and the President’s conduct “was a flagrant dereliction of his duty to uphold and defend the Constitution.”²²⁶

Beginning the next day, a series of members of the President’s Administration resigned in protest of his role in the attack. Secretary of Education DeVos resigned her Cabinet post due to the “unconscionable” attack, and observed in her resignation letter to President Trump: “There is no mistaking the impact your rhetoric had on the situation.”²²⁷ Secretary of Transportation Elaine Chao likewise resigned from the Cabinet,²²⁸ and Special Envoy Mulvaney, previously President Trump’s Acting Chief of Staff, resigned as well, declaring “I can’t do it. I can’t stay.”²²⁹ Numerous other White House officials, too, tendered their resignations.²³⁰ Additionally, former Acting Secretary of the Department of Homeland Security Chad Wolf “implore[d] the President” to “strongly condemn the violence that took place.”²³¹

²²⁴ Romney Condemns Insurrection at U.S. Capitol, Senator Mitt Romney: Press Releases (Jan. 6, 2021). see also, e.g., Oma Seddiq, Sen. Lindsey Graham blames Trump for Capitol riots and says the president needs to ‘understand that his actions were the problem’, Business Insider (Jan. 7, 2021) (“When it comes to accountability, the president needs to understand that his actions were the problem, not the solution.”); Malachi Barrett, Michigan representatives denounce attack on U.S. Capitol by pro-Trump mob, MLive (Jan. 6, 2021). (decrying “attempt to overthrow the workings of the U.S. government, the legislative branch,” and urging President Trump “to not just strongly condemn the violence, not just tell people go home, but also recognize and acknowledge Biden as president-elect”).

²²⁵ Statement of Rep. Cheney, available at https://www.nytimes.com/2021/01/06/us/politics/trump-speech- capitol.html.

²²⁶ Statement of Sen. Sasse, available at https://www.npr.org/sections/congress-electoral-college-tally-live- updates/2021/01/08/954854250/gop-sen-sasse-rips-trump-for-stoking-mob-calls-hawleys-objection-really-dumbass.

²²⁷ Betsy Devos Letter of Resignation (Jan. 7, 2021) (Available at https://www.washingtonpost.com/context/betsy- devos-resignation-letter/cfd93504-2353-4ac3-8e71-155446242dda/.).

²²⁸ Kevin Liptak et al., Some Trump administration officials resign while others stay to prevent chaos, CNN (Jan. 7, 2021).

²²⁹ Erin Schumaker, Trump officials who have resigned in the wake of attack on Capitol, ABC News (Jan. 9, 2021).

²³⁰ As of January 9, 2021, the list of individuals resigning from the White House includes John Costello, deputy assistant secretary for intelligence and security in the Commerce Department; Matthew Pottinger, White House deputy national security adviser; Sarah Matthews, White House deputy press secretary; Rickie Niceta, White House social secretary; and Stephanie Grisham, chief of staff to First Lady Melania Trump. Id.

²³¹ Acting Secretary Wolf Condemns Violence at The U.S. Capitol, Dept. of Homeland Security (Jan. 7, 2021). Former Acting Secretary Wolf resigned on Jan. 11, 2021, citing “court rulings regarding the validity of [his] authority as Acting Secretary” as the reason. See Priscilla Alvarez & Geneva Sands, Acting Secretary of Homeland Security Chad Wolf resigns; FEMA Administrator Pete Gaynor to take over, CNN (Jan. 11, 2021).

Former Trump Administration officials have likewise rebuked the President and expressed horror at what his conduct has wrought. Attorney General Barr, accused the President of a “betrayal of his office,” and declared that “orchestrating a mob to pressure Congress is inexcusable.”²³² The President’s former Secretary of Defense James Mattis declared that “[t]oday’s violent assault on our Capitol, an effort to subjugate American democracy by mob rule, was fomented by Mr. Trump.”²³³ Former White House Chief of Staff John Kelly stated that “[w]hat happened on Capitol Hill … is a direct result of [President Trump’s] poisoning the minds of people with the lies and the fraud.”²³⁴ And former Speaker of the House John Boehner declared that “[t]he invasion of our Capitol by a mob, incited by lies from some entrusted with power, is a disgrace to all who sacrificed to build our Republic.”²³⁵

Despite repeated entreaties, it took until January 10th for President Trump to order the flag of the United States to be flown at half-staff to commemorate the January 7th death of the Capitol Police officer who was murdered by the insurrectionists.²³⁶ In contrast, the flag over the U.S. Capitol was lowered shortly after his death was confirmed.

The President’s fellow Republicans recognize what he will not: his words incited a violent attack on the Capitol and the Congress. He “incited the mob” and “lit the flame,” in the words of Congresswoman Cheney. Because the President has not repudiated the violent and unlawful actions of his followers or guided them to refrain from future antidemocratic attacks, he cannot be trusted to deter future violence or to remain in office.

²³² Quint Forgey, Barr: Trump committed ‘betrayal of his office’, Politico (Jan. 7, 2021).

²³³ Amanda Macias, Mattis blames Trump for violence at Capitol, says his actions ‘poison our respect for fellow citizens’, CNBC (Jan. 6, 2021).

²³⁴ Christine Mui, Ex-Trump Chief of Staff John Kelly supports 25th Amendment to remove president, Boston Globe (Jan. 7, 2021).

²³⁵ Scott Wartman, Boehner: ‘The GOP must awaken.’ Former Speaker of the House slams the Republican Party over ‘nightmare.’, Cincinnati Enquirer (Jan. 7, 2021).

²³⁶ David Choi, Trump lowers the White House flag after pressure from both Republicans and Democrats, Business Insider, (Jan. 11, 2021).

3. President Trump’s Actions Are Consistent with His Past Pattern of Undermining the Public Peace and the Orderly Operation of Democracy

The Article of Impeachment charges President Trump for conduct connected to the events of January 6, 2021. The conduct that gives rise to that Article is, however, consistent with previous related conduct by President Trump that demonstrates an indifference to the public peace and to the lawful and orderly operation of our democratic government. That conduct encompasses his encouragement of lawless mob violence by his political supporters, and his urging of official actors to take ultra vires action to advance his falsehoods that he won the election and that it was stolen from him. The latter conduct includes a telephone call on January 2, 2021 in which he sought to induce the Secretary of State of Georgia to change the certified outcome of the 2020 presidential election in his favor. That President Trump has used the weight of his office to engage in such conduct in the past, and the recent escalation of that conduct which resulted in the January 6, 2021 insurrection, gives rise to a significant concern that, if not removed from office, President Trump will continue to engage in similar efforts to incite mass, violent lawless action during the remainder of his term.

President Trump has previously expressed both tacit and explicit support for mob violence perpetrated by his sympathizers. On August 12, 2017 multiple violent clashes broke out during the Unite the Right rally in Charlottesville, Virginia, including an incident in which one protester, a self-identified white supremacist, intentionally drove his car into a crowd of counter-protesters, killing one and injuring 19 others.²³⁷ The violence perpetrated by the protesters, who celebrated white supremacy and included separatists who espouse civil war, drew nearly universal and immediate condemnation. Uniquely among prominent public officials, President Trump’s statements condemned the hatred and violence “on many sides, on many sides” while also praising “very fine people on both sides.”²³⁸ In a context in which the values of human equality are enshrined in our Constitution and are universally agreed to be fundamental American values, all those who hold a position of trust under the Constitutional are expected to, and most regularly and loudly do, denounce white supremacy in clear and unambiguous terms. Against that backdrop, President Trump drew an equivalence between those who stood for white supremacy and those who stood against it. That public approach appears to convey a lack of disapprobation for the ideals and militant aspirations of the white supremacist movement, and was broadly so understood, including by prominent members of that movement.

During the 2020 Presidential campaign, President Trump was asked in the first Presidential Debate on September 29, 2020 to condemn white supremacists, but he would not. Asked by the debate moderator to condemn white supremacists and militia groups, and specifically prompted by the opposing candidate to denounce the group known as the Proud Boys, President Trump declined to denounce the group and instead issued a directive to them, stating, “Proud Boys, stand back and stand by.” On December 12, 2020—less than a month before the attack on the Capitol— a leader of the Proud Boys visited the White House.²³⁹

²³⁷ Jason Hanna et al., Virginia governor to white nationalists: ‘Go home … shame on you’, CNN (Aug. 13, 2017).

²³⁸ Glenn Thrush and Maggie Haberman, Trump Gives White Supremacists an Unequivocal Boost, N. Y. Times (Aug. 15, 2017).

²³⁹ David Smith et al., Donald Trump refuses to condemn white supremacists at presidential debate, The Guardian (Sep. 29, 2020); 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).

His disregard for lawful process and the orderly operation of government continued in the aftermath of the election, including during President Trump’s January 2, 2021 call with Georgia state officials.²⁴⁰ After Election Day, the state of Georgia’s county canvass results showed that President Trump lost the election in Georgia by approximately 14,000 votes.²⁴¹ Much of the tally was conducted by automated tallying machines. Secretary Raffensperger then ordered a Risk Limiting Audit of the results, and directed that every county conduct a manual recount of the ballots to check the accuracy of the electronic tallying results. The audit resulted in a variance of 0.0099% in the vote differential between the candidates, which did not change the outcome. In the course of the audit, the state also discovered a number of ballots in two counties that had not been included in the original canvass.²⁴² After the audit and the inclusion of the missing ballots, the tally showed that President Trump had lost Georgia by more than 12,000 votes. As permitted by Georgia law, the Trump campaign requested a recount.²⁴³

Under Georgia law, the Secretary of State was required to certify the results of the election on November 20, 2020, and the Governor of the state was then required to promptly certify the appointment of a slate of presidential electors in accordance with the election results. President Trump publicly exhorted both men not to do so. Secretary Raffensperger nevertheless proceeded to certify the results on November 20, 2020, and Georgia Governor Kemp duly certified the appointment of a slate of electors that same day.²⁴⁴ The Trump campaign’s recount request, which proceeded in parallel, was performed electronically pursuant to state law.²⁴⁵ After the recount, the vote count remained materially unchanged; Georgia recertified the election result on December 7, 2020.²⁴⁶

²⁴⁰ Amy Gardner & Paulina Firozi, Here’s the full transcript and audio of the call between Trump and Raffensperger, Wash. Post (Jan. 5, 2021).

²⁴¹ Christina A. Cassidy, EXPLAINER: Is Georgia’s upcoming ballot ‘audit’ a recount?, AP (Nov. 12, 2020).

²⁴² Risk-Limiting Audit Report, Georgia Presidential Contest, November 2020, Georgia Sec. of State (Nov. 19, 2020) (Available at https://sos.ga.gov/admin/uploads/11.19_.20_Risk_Limiting_Audit_Report_Memo_1.pdf); Christina A. Cassidy, EXPLAINER: Is Georgia’s upcoming ballot ‘audit’ a recount?, AP (Nov. 12, 2020).

²⁴³ Kevin Bohn, Trump campaign requests Georgia recount that’s unlikely to change his loss in the state, CNN (Nov. 22, 2020).

²⁴⁴ Marshall Cohen et al, Georgia’s GOP governor and secretary of state certify Biden win, quashing Trump’s longshot attempt to overturn results, CNN (Nov. 20, 2020).

²⁴⁵ David Morgan, Georgia sets timeline for Trump-requested vote recount, Reuters (Nov. 23, 2020).

²⁴⁶ Richard Fausset & Nick Corasaniti, Georgia Recertifies Election Results, Affirming Biden’s Victory, N. Y. Times (Dec. 7, 2020).

The final tally showed that President Trump lost the State of Georgia by 11,779 votes.²⁴⁷ Georgia’s slate of presidential electors then duly cast their votes on December 14, 2020 in accordance with the Electoral Count Act of 1887. During the post-election period, the Trump campaign and supporters of President Trump filed at least seven lawsuits in Georgia courts seeking to overturn the result in Georgia or otherwise challenge the conduct of the election, all of which were dismissed either by the court or voluntarily by the plaintiff.²⁴⁸

Against that background, on the afternoon of January 2, 2021, President Trump convened the call with Secretary Raffensperger. On the call he repeatedly urged the Secretary to accept or investigate claims of voting irregularities. The President insisted, “I think it’s pretty clear that we won. We won very substantially in Georgia.” The Secretary responded, “We don’t agree that you have won,” and explained that “the challenge that you have is the data you have is wrong.” With respect to a claim made by President Trump that 5,000 votes were cast in Georgia by people recorded as having died, the Secretary explained that the state had investigated the matter and identified only two such votes. The President asserted that certain ballots were scanned three times. The Secretary responded, “We did an audit of that, and we proved conclusively that they were not scanned three times.” The President and one of his attorneys also asserted that 4,500 voters had cast Georgia ballots after moving out of the state. The Secretary and a Georgia official explained in response that the state had been “going through each of those as well,” and that “[e]very one we’ve been through are people that lived in Georgia, moved to a different state, but then moved back to Georgia legitimately.”²⁴⁹

President Trump refused to accept Secretary Raffenberger’s conclusion that he had not won the election. He told the Secretary that “the ballots are corrupt,” that this was “totally illegal” and in fact “more illegal for you than it is for them” because “you’re not reporting it.” “That’s a criminal, that’s a criminal offense,” he said, and “a big risk to you.” He said that the state was “shredding ballots” and “removing machinery,” and said, “I’m notifying you that you’re letting it happen.” And he told the Secretary, “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.”²⁵⁰

President Trump cared only that a state official certify that he won Georgia. He asked the Secretary to belatedly “find” new votes for him—just enough for him to win the state. He did not care about the actual results. He was indifferent to the truth or falsity of the unsupported claims of voting impropriety that he asserted. And to back up his demands, he threatened the Secretary, alluding to the possibility that his government would pursue criminal charges against him if he failed to “find” those votes.

This exchange comes on the heels of a call in late December in which President Trump was reported to have pressured a top Georgia election official, saying the investigator would be a “‘national hero’ for finding evidence of fraud” and again claimed there were problems with the signature-matching system used by the state²⁵¹ This call was made as the state of Georgia conducted an audit of ballots in Cobb County. President Trump’s exchanges with state officials also occurred in the context of reported White House pressure on the U.S. for the Northern District of Georgia Byung J. Pak, who abruptly resigned on January 5, 2020.²⁵² Pak was reported to have been forced to resign because he was not investigating the President’s claims of widespread voter fraud in Georgia strongly enough.²⁵³

²⁴⁷ Christina A. Cassidy, EXPLAINER: Is Georgia’s upcoming ballot ‘audit’ a recount?, AP (Nov. 12, 2020).

²⁴⁸ Pete Williams & Nicole Via y Rada, Trump’s election fight includes over 50 lawsuits. It’s not going well., NBC (Nov. 23, 2020).

²⁴⁹ Amy Gardner & Paulina Firozi, Here’s the full transcript and audio of the call between Trump and Raffensperger, Wash. Post (Jan. 5, 2021).

²⁵⁰ Id.

²⁵¹ Richard Fausset & Katie Benner, Georgia Officials Reveal Third Trump Call Seeking to Influence Election Results, N. Y. Times (Jan. 9, 2021).

²⁵² Kelly Mena, Wall Street Journal: White House pressured Georgia federal prosecutor to resign, CNN (Jan. 9, 2021).

²⁵³ Aruna Viswanatha et al., White House Forced Georgia U.S. Attorney to Resign, Wall Street Journal (Jan. 9, 2021).

In sum, the President pressured the Secretary to conclude that he had won Georgia without regard to whether that was factually so. This conversation echoes other reported instances in which the President pressured officials and legislators in Georgia and other states,²⁵⁴ and in the federal government, to alter the election outcome in his favor. Most recently, he urged the Vice-President of the United States to usurp an authority not granted to him by the Constitution to reject the votes of a state’s duly appointed electors, and to cause President Trump to be wrongfully appointed as President; and when Mr. Pence refused to do so, he incited the armed mob of his followers to go to the Capitol to disrupt the proceedings.

President Trump’s incitement of mob violence against the Capitol is clearly part of a broader pattern of encouraging lawless behavior and official action where it serves to aggrandize his own power. Especially in light of the accelerating pace of these events as the end of President Trump’s term comes to a close, the risk that that pattern will continue and repeat itself even in the final days of his administration is great.

B. The Need to Establish Precedent That Such Conduct by a President Is Unconstitutional and Contrary to Our Democratic Values

The House must impeach President Trump to make clear for all future officeholders that our Constitution rejects President Trump’s behavior. Since President Washington willingly relinquished his office at the end of his second term in 1797, this country has seen an unbroken chain of peaceful transitions. Some have argued that given the little remaining time left in President Trump’s term, there is no need to impeach him now. This ignores the precedent this country would set if we refuse to impeach and the remedy of disqualification that the Senate may impose. Even wrongly assuming that President Trump poses no ongoing threat, impeachment sends the strongest possible message that, as John Adams said, we are a “government of laws, and not of men.”²⁵⁵ Impeachment is a necessary measure to make sure that no President ever again attempts to incite his supporters to take unlawful action and overturn the will of the people. Indeed, the Constitution prohibits certain government officials who have “engaged in insurrection or rebellion” against the United States from holding “any office . . . under the United States.”²⁵⁶

²⁵⁴ See e.g., Carol D. Leonnig & Tom Hamburger, Michigan attorney general ponders criminal probes of state and local officials who bend to Trump’s will on overturning election results, Wash. Post (Nov. 21, 2020); Alison Durkee, Pennsylvania GOP lawmakers make clear they won’t overturn the election as Trump wants, Forbes (Dec. 3, 2020).

²⁵⁵ Papers of John Adams vol. 2 p. 314, Massachusetts Historical Society, available at http://www.masshist.org/publications/adams-papers/index.php/view/PJA02p314 .

²⁵⁶ U.S. CONST. amend. XIV § 3.

Impeachment is appropriate in the wake of this attack on the Capitol. The House has a solemn obligation to issue the appropriate charges and passing this article of impeachment preserves the ability of the Senate to take up the charges as it sees fit. This impeachment does not seek to undo an election. Rather, it seeks to vindicate the most recent election, protect it from a President who defies it, and protect future elections from presidents who may try to do the same. This impeachment is an essential statement about our Constitution and our democracy.

Courts across the country have rejected his false claims of fraud—and not just on procedural grounds. In Arizona, for example, the court found no fraud, no misconduct, no illegal votes, and confirmed that President-elect Biden won.²⁵⁷ Likewise, in Wisconsin, the court heard President Trump’s claims on the merits and rejected them.²⁵⁸ Moreover, hand counts and hand audits in multiple states confirmed the accuracy of the vote. Other courts have ruled that the alleged claims of rigged voting machines pushed by President Trump and others are “implausible.”²⁵⁹ Those outcomes are part of the over 60 post-election cases decided adversely to President Trump and his allies. Yet he falsely and repeatedly screamed fraud, culminating in an appeal to his supporters to travel to Washington, D.C. on January 6th—where he told them to march to the Capitol and repeated his baseless claim that “we won in a landslide.”

President Trump did not just falsely assert that he won the Presidency. He went much further. He pressured state officials to change the results and “find” more votes. He encouraged state officers not to exercise their ministerial duties. He told his supporters to assemble in Washington, D.C. on January 6th—the day of the Joint Session. He promised that it would be “wild.” President Trump’s goal was to disrupt the Joint Session of Congress that was meeting to formally count the electoral votes in an election that his opponent won.

President Trump also encouraged his Vice President to violate his own oath and claim unilateral authority to reject the votes of the Electoral College in an unconstitutional effort to declare President Trump the victor. Vice President Pence rightly rejected this view in his January 6, 2021 letter: “When disputes concerning a presidential election arise, under Federal law, it is the people’s representatives who review the evidence and resolve disputes through a democratic process.”²⁶⁰ As Vice President Pence concluded, “[v]esting the Vice President with unilateral authority to decide presidential contests would be entirely antithetical” to the Constitutional design.²⁶¹ Not only did President Trump encourage Vice President Pence to take that unconstitutional step, he pressured Vice President Pence and told his supporters that “if Mike Pence does the right thing, we win the election.” And if he didn’t do as Trump commanded, “Mike Pence . . . I’m going to be very disappointed in you.”²⁶² Little wonder that when President Trump’s supporters stormed the Capitol, some went looking for Vice President Pence.

²⁵⁷ Bob Christie & Jacques Billeaud, Arizona Supreme Court upholds election challenge dismissal, AP (Jan. 5, 2021); Laura Gomez, Judge: No fraud, misconduct, illegal votes in Maricopa County’s 2020 election, Arizona Mirror (Dec. 4, 2020).

²⁵⁸ Adam Brewster, Wisconsin Supreme Court rejects Trump campaign effort to toss ballots just before electors meet, CBS News (Dec. 14, 2020).

²⁵⁹ Jeremy Duda, Attorney for Sec of State: ‘Kraken’ lawsuit alleges ‘utterly implausible fraud’, Arizona Mirror (Dec. 8, 2020).

²⁶⁰ Available at Aaron Glantz, Read Pence’s full letter saying he can’t claim ‘unilateral authority’ to reject electoral votes, PBS (Jan. 6, 2021).

²⁶¹ Id.

²⁶² Julia Jacobo, This is what Trump told supporters before many stormed Capitol Hill, ABC News (Jan. 7, 2021)