Eminent conservative legal-beagle Chuck Cooper penned an OpEd for the Wall Street Journal yesterday, The Constitution Doesn’t Bar Trump’s Impeachment Trial. It isn't what Trump would have liked out there just before his trial begins on tomorrow. Trump's feeble legal strategy is to claim that it’s unconstitutional for the Senate to try him now that he’s no longer in office. Cooper says the argument is illogical and the Senators who adhere to it-- led by optometrist Rand Paul-- are dead wrong. "The strongest argument against the Senate’s authority to try a former officer," he wrote, "relies on Article I, Section 4 of the Constitution, which provides: 'The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.' The trial’s opponents argue that because this provision requires removal, and because only incumbent officers can be removed, it follows that only incumbent officers can be impeached and tried. But the provision cuts against their interpretation. It simply establishes what is known in criminal law as a 'mandatory minimum' punishment: If an incumbent officeholder is convicted by a two-thirds vote of the Senate, he is removed from office as a matter of law. If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling. But it isn't. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: 'disqualification to hold and enjoy any office of honor, trust, or profit under the United States.' That punishment can be imposed only on former officers. That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction. The formal Senate procedures for impeachment trials acknowledge this constitutional reality, noting that a two-thirds vote to convict 'operates automatically and instantaneously to separate the person impeached from the office.' The Senate may then, at its discretion, take a separate vote to impose, by simple majority, 'the additional consequences provided by the Constitution in the case of an impeached and convicted civil officer, viz: permanent disqualification from elected or appointed office.' Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer. Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders."
Writing for the NY Times yesterday evening, Michael Schmidt noted that "Cooper's decision to take on the argument was particularly significant because of his standing in conservative legal circles. He was a close confidant and adviser to Senate Republicans, like Ted Cruz of Texas when he ran for president, and represented House Republicans-- including the minority leader, Representative Kevin McCarthy of California-- in a lawsuit against Speaker Nancy Pelosi. He is also the lawyer for conservative stalwarts like John R. Bolton and Jeff Sessions, and over his career defended California’s same-sex marriage ban and had been a top outside lawyer for the National Rifle Association. But Mr. Cooper, who is said to be dismayed by the unwillingness of House and Senate Republicans to hold Mr. Trump accountable, took on the main claim made by his own confidants and clients, offering a series of scholarly and technical arguments for why the Constitution allows for a former president to stand trial."
Meanwhile, outside of conservative legal circles, there is no debate over Trump's guilt. The public knows it and Congress knows it. The senators who vote against convicting him are just pure partisan hacks or sniveling cowards who will be judged harshly by history. Last night, a Washington Post team reported in some detail about how tied Trump personally is to the insurrection. "The nine House impeachment managers leading Trump’s prosecution made clear in an 80-page brief filed last week that they will argue that his role in inspiring the crowd to action began long before the 70-minute speech he gave that day.
They assert that the violence was virtually inevitable after Trump spent months falsely claiming that the election had been stolen from him.
“He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the Nation’s continued existence,” the House impeachment managers wrote.
After refusing to take the “honorable path” and admit defeat in the election, they wrote, Trump “summoned a mob to Washington, exhorted them into a frenzy and aimed them like a loaded cannon down Pennsylvania Avenue.”
Evidence to bolster the Democratic case has already emerged in federal criminal cases filed against more than 185 people so far in the aftermath of the insurrection.
Trump’s pull on his supporters is a dominant theme. Court documents show that more than two dozen people charged in the attack specifically cited Trump and his calls to gather that day in describing on social media or in conversations with others why they decided to take action by coming to Washington.
Even when Trump is not cited by name, filings in dozens of other cases show how alleged rioters were broadly motivated by his rhetoric about a stolen election-- including his false claims that Vice President Mike Pence could have used his ceremonial role to stop the counting of the electoral college votes.
And some came primed for battle.
According to prosecutors, Pittsburg QAnon supporter Kenneth Grayson wrote to an associate on Dec. 23: “I’m there for the greatest celebration of all time after Pence leads the Senate flip!! OR IM THERE IF TRUMP TELLS US TO STORM THE FUKIN CAPITAL IMA DO THAT THEN!”
Grayson has been accused of trespassing into the Capitol and charged with five felonies.
...Democrats hope to lay out a compelling case to the country of Trump’s responsibility for the insurrection.
They argue that they think Trump’s address on Jan. 6 could be shown to constitute “incitement” under criminal law -- which the Supreme Court has held requires showing that speech was “directed” and “likely” to produce “imminent lawless action.”
On Sunday, Rep. Liz Cheney (R-WY), who voted to impeach Trump, called the Senate trial only a “snapshot” and said Trump’s actions should be examined as part of ongoing criminal investigations.
“People will want to know exactly what the president was doing. They want to know, for example, whether the tweet he sent out calling Vice President Pence a coward while the attack was underway, whether that tweet, for example, was a premeditated effort to provoke violence,” she said on Fox News Sunday. “There are a lot of questions that have to be answered and there will be many, many criminal investigations looking at every aspect of this and everyone who was involved, as there should be.”
In the Senate, House impeachment managers will argue that regardless of the criminal investigation, Trump’s actions before, during and after the riot represent an assault on democracy that amounts to the kind of “high crimes and misdemeanors” that should cause a commander in chief to be convicted by the Senate under the Constitution and barred from holding public office again.
House managers have already cited videos taken in the crowd, which show that after Trump exhorted the group to “show strength,” people could be heard shouting, “Take the Capitol right now!” and “Invade the Capitol!”
In their brief, they quoted from videos taken inside the Capitol, where one rioter exclaimed, “We wait and take orders from our president!” and another taunted a police officer, “We were invited here . . . by the president of the United States!”
Some defense attorneys have echoed those arguments, saying that those who participated in the attack were doing so at the behest of Trump.
“You have these people who were vulnerable, who were receptive, who were euphoric,” said Al Watkins, an attorney representing Jacob Chansley, who was photographed in the well of the Senate chamber, wearing a headdress of animal fur and horns. “What these people heard, including my client, was an invitation, a call to arms by the president.”
Watkins said Trump led otherwise reasonable and law-abiding people like Chansley into an “abyss” through “relentless” use of social media to propagate false information.
“But for the president, they would not have walked down Pennsylvania Avenue,” he added. “They believed the president was going with them. They thought they were helping the president save our country.”
The Federal Public Defender’s Office for Washington, which is representing many of those charged, declined to comment on individual cases. But A.J. Kramer, chief of the office, said he expected that there may be arguments in court that Trump bore “full responsibility for encouraging the rally, inciting them and telling them he would lead them” to overturn the results of the election.
Defense attorneys may argue that Trump “told them to march up Pennsylvania Avenue, and he’d be leading them, and he’s the commander in chief of the military and the nation’s top law enforcement officer,” Kramer said, adding: “I can’t speak for any particular individual, but I certainly think it’s going to play a large role in a number of the cases.”
Indeed, many of those charged indicated that they felt called to duty on Jan. 6, court documents show.
...Trump tweeted repeatedly about the Jan. 6 gathering, exhorting his supporters to come to Washington as a way to pressure Congress-- and his rallying cry was effective, court documents show.
On Dec. 19, more than two weeks before the rally, Trump tweeted, “Big Protest in D.C. on January 6. Be there, will be wild!”
...Some defense attorneys representing people charged with crimes related to the insurrection have indicated that they plan to use Trump’s words in court to try to argue that their clients could not have known their actions were illegal.