I do not believe Punxsutawney Phil said anything about winter this year. His handlers claim to speak “groundhogese,” but there are some things that should come from the marmot himself. If you are a skeptic like me, you will be as unsatisfied by the filings for the second impeachment of Donald TrumpDonald TrumpMan sentenced to nearly four years for running scam Trump, Biden PACs Meadows says Trump's blood oxygen level was dangerously low when he had COVID-19 Trump endorses David Perdue in Georgia's governor race MORE by both House managers and his legal team.
The House brief outlines what will be a highly emotive case but also one that conspicuously lacks evidence of the critical element of intent. The case laid out by the new counsel for Trump may also be disconnected from the allegations. In this Senate trial, we will hear a lot about how the groundhog appeared, what people thought he said, and even where he went afterward, but very little from the groundhog himself.
The House brief is built on how the remarks of Trump were interpreted rather than intended. The House reportedly plans to show clips with the Capitol rioters and their statements referring to Trump and his remarks. That would show how the speech was received but not how it was meant. The House is in many ways a captive of its own excess. After refusing to hold a hearing to look at the language and implications of impeachment, House leaders passed an article for “incitement of insurrection.”
The poorly crafted article ensured that few Republicans could support it. It also refers to a crime that would be difficult to prove in a court of law. Indeed, the remarks would likely be found to be protected by the First Amendment if not at the trial then on appeal. The Supreme Court has routinely protected speech absent clear advocacy of violence.
The remarks of Trump before the incident would not satisfy the standard laid out in cases like Brandenburg versus Ohio. Calling on supporters to march on federal or state capitals is common in politics. In his speech, Trump told the crowd to “peacefully” walk up to the Capitol to back his election challenge and voice opposition to the members ignoring it. But there is a difference between reckless and criminal rhetoric.
The House filing raises more issues, like on the relative passivity to create any record and instead conduct a “snap impeachment” without a hearing, testimony, or investigation, which I have criticized. There was no chance that the trial would occur until weeks after Trump left office and, under its own theory, the House could impeach a former president in days or years after leaving office. Yet it refused to hold a single hearing.
While demanding witnesses in the Senate, the House could have called witnesses to lock in their testimony for weeks and create a public record that could be clearly referenced in the Senate trial. There are at least ten witnesses who could be called, including many who have already spoken. Those witnesses include the former Acting Defense Secretary Chris Miller and two of his close aides, Kashyap Patel and Ezra Cohen.
Some are referenced in this filing, but the House has declined to put them under oath. These witnesses could answer whether Trump had impeded or delayed the deployment of the National Guard. Indeed, the House has in possession information over when the National Guard was first offered and interactions with the administration on deployment. While Trump is unlikely to testify like prior presidents, others have recounted meetings with him both before and after his remarks a month ago.
The House suggests that when Trump tweeted to his supporters that day to “stay peaceful” and “support our Capitol Police and law enforcement,” he did not mean it. So the House seems to prefer to keep the trial on the level of speculation with trying Trump on how his remarks were received rather than intended. While the article refers to a crime of incitement to insurrection, it reads like an impeachment for negligence.
The original legal team for Trump reportedly resigned after he insisted that they focus on allegations of electoral fraud. If so, it could prove the case of Trump snatching defeat from the jaws of victory. Trump is set to secure a second acquittal in the Senate by close to the same margin as in his first impeachment trial. Converting this trial into an argument around electoral fraud would likely be viewed as the signal of contempt by some members of the Senate who have lost their patience on this.
His filing addresses his claim of a stolen election but says “insufficient evidence exists upon which a reasonable jurist could conclude” that his statements “were accurate or not” and he “denies they were false.” His view of electoral fraud is certainly germane, since it is referenced in the impeachment article. However, it is the worst possible defense to head before the Senate. It does not matter if Trump was right about it. It only matters whether he sought a rebellion rather than a recount.
Beyond the constitutional challenge, the next best argument is this is not incitement but protected speech, which is raised in his filing. The House noted his use of language such as “fight much harder” and “take back our country.” Yet such rhetoric is consistent with his previous remarks and is similar to language used by Democrats, who have challenged electoral votes before, and many of them denied the legitimacy of Trump on his inauguration day as violent protests erupted in Washington.
Trump can argue that he was denied due process in this impeachment. Since the House maintains that it can impeach Trump at any time after leaving office, it could have afforded him a chance to respond and for witnesses to be heard in the House. But those defenses will be lost if Trump wants to make this a trial on electoral fraud. The filings on both sides bode poorly for this trial, which could reflect our age of rage. No minds will be changed with more weeks of political winter.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.