Part 1 of 4
Trial Memorandum of the U.S. House of Representatives in the Impeachment Trial of President Donald J. Trumpby U.S. House of Representatives Managers
February 2, 2021
HIGHLIGHTS:
Videos of the crowd eliminate any doubt that President Trump’s words in fact incited the crowd to commit violence. Immediately after President Trump told the crowd that “you’ll never take back our country with weakness,” and that “[y]ou have to show strength,” supporters can be heard loudly shouting “take the Capitol right now!” and “invade the Capitol building!”80 At another point, the crowd interrupted him with chants of “Fight for Trump!” The President did not try to soothe their aggression, but instead smiled and responded, “Thank you.”81 As many in the crowd instantly recognized, the tenor of his speech (and his repeated demand that they “fight like hell” and “show strength” to save their country) belied any desire for a peaceful demonstration.82 Those who had come to the rally looking for a signal from their President found it in his remarks. Rather than quell the crowd, urge peaceful demonstration, or promise to carry on the fight over the years to come, the overwhelming thrust of President Trump’s remarks—delivered to an armed, angry crowd widely known to be prepared for violence on his behalf—was a militaristic demand that they must fight to stop what was occurring in the Capitol at that very moment….
Given all that, the crowd which assembled on January 6 unsurprisingly included many who were armed, angry, and dangerous—and poised on a hair trigger for President Trump to confirm that they indeed had to “fight” to save America from an imagined conspiracy. Answering to the President’s call to mobilize, thousands arrived in Washington for the purpose (aggressively championed by the President) of doing anything necessary to stop the Joint Session of Congress from finalizing the election results. Many who arrived brought weapons, plans of the Capitol building, and even tactical gear, including ropes, military helmets, ladders, and zip tie restraints.54
This mobilization was not hidden away in the dead of night. It was widely discussed on websites—such as TheDonald.win—that, as confirmed by a former White House staff member, were “closely monitored” by President Trump’s social media operation.55 These sites hosted hundreds of posts about plans for the attack on the Capitol, with detailed discussions of weaponry and directions to “find the tunnels” and “arrest the worst traitors.”56 At TheDonald.win, one poster stated: “If Congress illegally certifies Biden, … Trump would have absolutely no choice but to demand us to storm Congress and kill/beat them up for it.”57 Another poster wrote: “[Trump] can order the NAT guard to stand down if needed. unfortunately he has no control over the Capitol Police... but there are only around 2k of them and a lot are useless fat asses or girls.”58 In their posts, extremists made it clear that they were prepared to fight at President Trump’s direction.
These calls for violence at the Capitol were widely covered. On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60 On January 5, the Washington Post warned that “[f]arright online forums are seething with references to potential violence and urging supporters of President Trump to bring guns to Wednesday’s protests in Washington.”61 These calls to action, the Washington Post explained, were “direct responses to Trump’s demands that his supporters pack the nation’s capital in support of his bogus claims that November’s national vote for Biden resulted from election fraud.”62
IN THE SENATE OF THE UNITED STATES
Sitting as a Court of Impeachment
In re
IMPEACHMENT OF
PRESIDENT DONALD J. TRUMP
TRIAL MEMORANDUM
OF THE UNITED STATES HOUSE OF REPRESENTATIVES
IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD J. TRUMP
United States House of Representatives
Jamie Raskin
Diana DeGette
David Cicilline
Joaquin Castro
Eric Swalwell
Ted Lieu
Stacey Plaskett
Madeleine Dean
Joe Neguse
U.S. House of Representatives Managers
TABLE OF CONTENTS • INTRODUCTION
• STATEMENT OF FACTS
o A. President Trump Refuses to Accept the Results of the 2020 Election
o B. President Trump Encourages His Followers to Come to Washington on January 6, 2021 and “Fight” to Overturn the Election Results
o C. Vice President Pence Refuses to Overturn the Election Results
o D. President Trump Incites Insurrectionists to Attack the Capitol
o E. Insurrectionists Incited by President Trump Attack the Capitol
o F. President Trump’s Dereliction of Duty During the Attack
o G. The House Approves An Article of Impeachment with Bipartisan Support
• ARGUMENT
• I. PRESIDENT TRUMP COMMITTED HIGH CRIMES AND MISDEMEANORS
o A. President Trump Violated His Oath of Office
o B. President Trump Attacked the Democratic Process
o C. President Trump Imperiled Congress
o D. President Trump Undermined National Security
• II. THERE IS NO DEFENSE FOR PRESIDENT TRUMP’S CONDUCT
o A. Fair Impeachment Process
o B. Criminality
o C. Election Results
o D. Free Speech
• III. THE SENATE HAS JURISDICTION TO TRY THIS IMPEACHMENT
o A. Former Officials in England and the Early American States Were Subject to Impeachment and Disqualification for Abuses Committed in Office
o B. The Framers Adhered to the Tradition That Former Officials Were Subject to Impeachment, Conviction, and Disqualification for Misconduct in Office
1. The Constitutional Convention
2. Constitutional Text and Structure
o C. Congressional Precedent Supports Jurisdiction over President Trump
• CONCLUSION
INTRODUCTIONThis trial arises from President Donald J. Trump’s incitement of insurrection against the Republic he swore to protect. The House of Representatives has impeached him for that constitutional offense. To protect our democracy and national security—and to deter any future President who would consider provoking violence in pursuit of power—the Senate should convict President Trump and disqualify him from future federal officeholding.
On January 6, 2021, with Vice President Michael Pence presiding, Congress assembled to perform one of its most solemn constitutional responsibilities: the counting of electoral votes for President of the United States. This ritual has marked the peaceful transfer of power in the United States for centuries. Since the dawn of the Republic, no enemy—foreign or domestic—had ever obstructed Congress’s counting of the votes. No President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes. Until President Trump.
In a grievous betrayal of his Oath of Office, President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election. As it stormed the Capitol, the mob yelled out “President Trump Sent Us,” “Hang Mike Pence,” and “Traitor Traitor Traitor.” The insurrectionists assaulted police officers with weapons and chemical agents. They seized control of the Senate chamber floor, the Office of the Speaker of the House, and major sections of the Capitol complex. Members and their staffs were trapped and terrorized. Many officials (including the Vice President himself) barely escaped the rioters. The line of succession to the Presidency was endangered. Our seat of government was violated, vandalized, and desecrated. Congress’s counting of electoral votes was delayed until nightfall and not completed until 4 AM. Hundreds of people were injured in the assault. Five people—including a Capitol Police officer—died.
President Trump’s responsibility for the events of January 6 is unmistakable. After losing the 2020 election, President Trump refused to accept the will of the American people. He spent months asserting, without evidence, that he won in a “landslide” and that the election was “stolen.” 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. But every single court to consider the President’s attacks on the outcome of the election rejected them. And state and federal officials from both parties refused President Trump’s increasingly desperate demands that they break the law to keep him in power. With his options running out, President Trump announced a “Save America Rally” on January 6. He promised it would be “wild.”
By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result— and as had been widely reported—the crowd was armed, angry, and dangerous. Before President Trump took the stage, his lawyer called for “trial by combat.” His son warned Republican legislators against finalizing the election results: “We’re coming for you.” Finally, President Trump appeared behind a podium bearing the presidential seal. Surveying the tense crowd before him, President Trump whipped it into a frenzy, exhorting followers to “fight like hell [or] you’re not going to have a country anymore.” Then he aimed them straight at the Capitol, declaring: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
Incited by President Trump, his mob attacked the Capitol. This assault unfolded live on television before a horrified nation. But President Trump did not take swift action to stop the violence. Instead, while Vice President Pence and Congress fled, and while Capitol Police officers battled insurrectionists, President Trump was reportedly “delighted” by the mayhem he had unleashed, because it was preventing Congress from affirming his election loss. This dereliction of duty—this failure to take charge of a decisive security response and to quell the riotous mob— persisted late into the day. In fact, when Congressional leaders begged President Trump to send help, or to urge his supporters to stand down, he instead renewed his attacks on the Vice President and focused on lobbying Senators to challenge the election results. Only hours after his mob first breached the Capitol did President Trump release a video statement calling for peace—and even then, he told the insurrectionists (who were at that very moment rampaging through the Capitol) “we love you” and “you’re very special.” President Trump then doubled down at 6:01pm, issuing a tweet that blamed Congress for not surrendering to his demand that the election results be overturned: “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. Go home with love & in peace. Remember this day forever!”
The Nation will indeed remember January 6, 2021—and President Trump’s singular responsibility for that tragedy. It is impossible to imagine the events of January 6 occurring without President Trump creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc. In the words of Representative Liz Cheney, the House Republican Conference Chair: “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”1 Senate Minority Leader Mitch McConnell recently affirmed that “[t]he mob was fed lies” and “provoked by the president.”2
President Trump committed this high crime and misdemeanor amid his final days in office. Given the clarity of the evidence and the egregiousness of his wrongdoing, the House approved an article of impeachment for incitement of insurrection. Now, merely weeks later, President Trump will argue that it serves no purpose to subject him to a trial and that the Senate lacks jurisdiction to do so. He is mistaken. As we explain at length below—and as scholars from diverse viewpoints have long recognized—the text and structure of the Constitution, as well as its original meaning and prior interpretations by Congress, overwhelmingly demonstrate that a former official remains subject to trial and conviction for abuses committed in office. Any other rule would make little sense. The Constitution governs the first day of the President’s term, the last day, and every moment in between. Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term. The Framers of our Constitution feared more than anything a President who would abuse power to remain in office against the will of the electorate. Allowing Presidents to subvert elections without consequence would encourage the most dangerous of abuses.
For that reason, President Trump’s conduct must be declared unacceptable in the clearest and most unequivocal terms. This is not a partisan matter. His actions directly threatened the very foundation on which all other political debates and disagreements unfold. They also threatened the constitutional system that protects the fundamental freedoms we cherish. It is one thing for an official to pursue legal processes for contesting election results. It is something else entirely for that official to incite violence against the government, and to obstruct the finalization of election results, after judges and election officials conclude that his challenges lack proof and legal merit.
To reaffirm our core constitutional principles—and to deter future Presidents from attempting to subvert our Nation’s elections—the Senate should convict President Trump and disqualify him from holding or enjoying “any Office or honor, Trust, or Profit under the United States.”3 That outcome is not only supported by the facts and the law; it is also the right thing to do. President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A President who violently attacks the democratic process has no right to participate in it. Only after President Trump is held to account for his actions can the Nation move forward with unity of purpose and commitment to the Constitution. And only then will future Presidents know that Congress stands vigilant in its defense of our democracy.
STATEMENT OF FACTS
A. President Trump Refuses to Accept the Results of the 2020 ElectionBefore a single voter cast a ballot in the 2020 presidential election, President Trump made it clear that he had no intention of abiding by the verdict of the American people.4 In a July 2020 interview, he pointedly refused to agree that he would accept the election results.5 Pressed in September 2020 on whether he would “commit to making sure that there is a peaceful transferal [sic] of power after the election,” he responded: “We’re going to have to see what happens.”6 Throughout this period, he insisted at rallies and through social media that if he appeared to lose the election, the only possible explanation was a conspiracy to defraud him and those who supported him. On August 17, for instance, he asserted that “the only way we’re going to lose this election is if this election is rigged.”7 One week later, he declared that “[t]he only way they can take this election away from us is if this is a rigged election.”8 He echoed these points at every opportunity, laying the groundwork for a refusal to accept any outcome other than his own continued grip on power.
This was not mere rhetoric, as became apparent immediately after Election Day. Based on incomplete early returns, and despite warnings from virtually every expert and election official in the country, President Trump claimed victory and tried to stop states from counting millions of lawful ballots. On November 4, for example, he tweeted: “We are up BIG, but they are trying to STEAL the Election. We will never let them do it.”9 Over the following days, many media outlets (including Fox News) reported that Joseph R. Biden, Jr. had won the election. President Trump responded by asserting—on November 8—that “this was a stolen election.”10 He repeated that same theme many times over the following months, urging his supporters to “Stop the Steal!”11
It was never clear who President Trump blamed for this asserted fraud—which, according to him, was vast enough to affect the outcome in many different states. At various points throughout late 2020, President Trump accused some combination of corrupt state election officials, fraudulent voters, doctored voting machines, and unspecified shadowy actors. In a speech on December 2, for example, he alleged “tremendous voter fraud and irregularities” resulting from a suspicious latenight “massive dump” of votes; he added in this speech that certain votes were “counted in foreign countries,” that “[m]illions of votes were cast illegally in the swing states alone,” and that “[i]t is statistically impossible” that he lost.12 “This election was rigged,” he insisted.13
Our legal system affords many ways in which a candidate can contest the outcome of an election. President Trump took full advantage of those opportunities, focusing on the states in which he claimed President Biden had been improperly recognized as the winner: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. President Trump and his allies ultimately filed 62 lawsuits in state and federal courts contesting every aspect of those elections.14 But all of these suits were dismissed, save for one marginal Pennsylvania suit that did not affect the outcome there.15 In dismissing these suits, judges at all levels—including several of President Trump’s own judicial appointees—found that his claims were “not credible,” “without merit,” and “flat out wrong.”16 Courts warned that some of his suits improperly aimed to “breed confusion,” “undermine the public’s trust in the election,” and “ignore the will of millions of voters.”17 As Judge Stephanos Bibas (a Trump appointee) observed in one characteristic opinion: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”18 The U.S. Supreme Court itself denied numerous emergency applications aimed at overturning the election results; in response, President Trump tweeted that our highest court is “totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.”19
President Trump had the right to seek redress through the legal system. But he turned to improper and abusive means of staying in power when it became clear that the courts were unconvinced by his claims. Specifically, he launched a pressure campaign initially aimed at state election officials that soon expanded to the Department of Justice and Members of Congress.
Starting in mid-November, President Trump brought the full power of his office to bear on state officials, pushing them to overturn and block certification of the election results by any means necessary. He pursued this agenda through tweets, phone calls, and meetings with officials, seeking at every opportunity to reverse the election so that he could remain in office.20 For example, despite clear evidence of President Biden’s victory in Michigan, President Trump issued false accusations that “[t]he Democrats cheated big time and got caught.”21 He personally lobbied two members of the Board of Canvassers for Wayne County to rescind their prior votes in favor of certifying the election results.22 He also (unsuccessfully) tried to induce Michigan’s top Republican legislative officials to violate Michigan law by rejecting the popular vote and selecting a Trump slate of electors; in furtherance of this effort, he had them fly to Washington, D.C., for a White House meeting.23
Trump applied particularly intense pressure to Georgia officials. On November 11, while Georgia’s vote count was in progress, Republican Secretary of State Brad Raffensperger publicly stated that there was no evidence of widespread voter fraud and that ballots were being accurately counted.24 President Trump then tweeted about Raffensperger seventeen times between November 11 and the date on which Georgia finally certified its election results. On Thanksgiving Day, he declared Raffensperger an “enemy of the people” for insisting upon the integrity of Georgia’s election.25 Reflecting an ominous pattern that would recur many times over the weeks that followed, President Trump’s attacks on Raffensperger sparked threats of death and violence; one such message warned that “the Raffenspergers should be put on trial for treason and face execution.”26 Nonetheless, President Trump continued his assault on Raffensperger. President Trump’s attacks were so concerning that Gabriel Sterling, another Republican election official in Georgia, publicly warned: “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.”27
President Trump’s campaign to reverse the election results—and to keep himself in the White House—lasted through the days immediately preceding the assault on the Capitol. On December 23, for instance, President Trump reportedly called one of Georgia’s lead election investigators, urging him to “find the fraud” and claiming that the official would be a “national hero” if he did so.28 On January 2, President Trump called Raffensperger to push him to somehow “find” enough votes to overturn the state’s results: “I just want to find 11,780 votes, which is one more than we have because we won the state.”29 President Trump also made a clear and chilling threat to Georgia’s highest election official: Failing to “find” enough votes to overturn the results of the Georgia election would be “a criminal offense” and “a big risk to you.”30 By this point, it was evident that President Trump would resort to any means necessary to reverse the election outcome.
That is confirmed by his persistent (and increasingly extreme) efforts to transform DOJ into an arm of his assault on state election results. At President Trump’s direction, then-Attorney General William Barr authorized federal prosecutors “to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections.”31 That prompted sixteen Assistant United States Attorneys in fifteen districts to urge Barr to cease the investigation because there was no evidence of such substantial voting irregularities. DOJ’s own investigation ultimately confirmed as much: Barr announced on December 1 that DOJ had “uncovered no evidence of widespread voter fraud that could change the outcome of the 2020 election.”32 Barr reportedly told President Trump at the time that his claims of election stealing were “bullshit.”33
President Trump then apparently pressured Barr’s successor, Acting Attorney General Jeffrey Rosen, to appoint special counsels and file briefs aimed at overturning the election results.34 When Rosen refused, President Trump reportedly hatched a scheme to fire Rosen and replace him with a different official who would be willing to deploy DOJ’s resources in support of President Trump’s efforts to keep himself in office.35 President Trump backed down only after he learned that most of DOJ’s political leadership would resign in protest if he fired Rosen.36
As this timeline indicates, President Trump’s rejection of the election results—and his steadily more extreme efforts to overturn them—persisted from Election Day through January 6. He did not cease his campaign even after the Electoral College met on December 14, with presidential electors casting 306 Biden votes and only 232 Trump votes. Nor did he cease after Senate Majority Leader McConnell recognized Mr. Biden’s victory: “Many millions of us hoped that the presidential election would yield a different result, but our system of government has processes to determine who will be sworn in on January the 20th. The Electoral College has spoken.”37 Instead, President Trump responded to these developments by escalating and refocusing his attacks on Members of Congress, pushing them to reject the Electoral College vote and then engineer his retention in office. On December 18, for instance, he tweeted that “@senatemajldr and Republican Senators have to get tougher, or you won’t have a Republican Party anymore. We won the Presidential Election, by a lot. FIGHT FOR IT. Don’t let them take it away!”38
B. President Trump Encourages His Followers to Come to Washington on January 6, 2021 and “Fight” to Overturn the Election ResultsFollowing the Electoral College vote, President Trump fixated on January 6, 2021—the date of the Joint Session of Congress—as presenting his last, best hope to reverse the election results and remain in power. Even as he continued improperly pressuring state officials, DOJ, and Members of Congress to overturn the electoral outcome, he sharply escalated his public statements, using more incendiary and violent language to urge supporters to “stop the steal” on January 6. He insisted that the election had been “rigged” and “stolen,” and that his followers had to “fight like hell” and “fight to the death” against this “act of war,” since they “can’t let it happen” and “won’t take it anymore!” These statements turned his “wild” rally on January 6 into a powder keg waiting to blow. Indeed, it was obvious and entirely foreseeable that the furious crowd assembled before President Trump at the “Save America Rally” on January 6 was primed (and prepared) for violence if he lit a spark.
By mid-December 2020, President Trump had spent months insisting to his base that the only way he could lose the election was a dangerous, wide-ranging conspiracy against them that threatened America itself. After the Electoral College vote, he channeled that fury toward January 6, which he presented as the final firewall against a historic fraud that “stole” their democracy. On December 19, he tweeted: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th.
Be there, will be wild!” 39 On December 26, he tweeted: “If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it
an act of war, and fight to the death. Mitch & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” (emphasis added).40 Fourteen minutes later, he tweeted again: “The ‘Justice’ Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud,
the biggest SCAM in our nation’s history, despite overwhelming evidence. They should be ashamed. History will remember.
Never give up. See everyone in D.C. on January 6th.”41 And on January 1, he tweeted: “The BIG Protest Rally in Washington, D.C., will take place at 11.00 AM on January 6th . . .
StopTheSteal!”42 That same day, Kylie Jane Kremer, the head of Women For America First—a group that had helped organize the Second Million MAGA March on December 12 (which ended in 4 stabbings and 33 arrests)43— tweeted a link to the website “Trumpmarch.com.” At the top of the post she added, “the cavalry is coming Mr. President!” President Trump retweeted her post, responding, “A great honor!”44
As January 6 approached, and President Trump’s other attempts to overturn the election failed (including his schemes at DOJ), he further escalated his call to arms. On January 4, he gave an angry speech in Dalton, Georgia, warning that “
Democrats are trying to steal the White House … [y]ou can’t let it happen. You can’t let it happen,” and “[b\they’re not taking this White House. We’re going to fight like hell, I’ll tell you right now.[/b]”45 The next day, on January 5, he tweeted: “Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough,
they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!”46 Trump made it clear that his goal was to prevent the election results from being certified: “
I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen. @senatemajldr @JohnCornyn @SenJohnThune”47
Through these and other statements, President Trump spent the weeks preceding his rally doing everything in his power to persuade attendees that their votes—and the election itself—were going to be stolen away in the Joint Session of Congress. That is, unless they somehow stopped it by making plans to “fight like hell” and “fight to the death” against this “act of war” by “Radical Left Democrats” and the “weak and ineffective RINO section of the Republican Party.”
By this point, it was clear that President Trump was comfortable urging, approving, and even celebrating violence. During a debate on September 29, for instance, he told the Proud Boys— a violent extremist group with ties to white nationalism—to “stand back and stand by.”48 On October 30, when a caravan of his supporters in Texas attacked a bus full of Biden campaign workers, nearly running it off the road, President Trump tweeted a stylized video of the caravan and captioned it, “I LOVE TEXAS!”49 Days later, he declared that “these patriots”—who could easily have killed a busload of innocent campaign staff—“did nothing wrong.”50
Throughout this period, it was widely reported and well known that President Trump’s attacks on election officials had sparked threats, intimidation, and actual violence.51 Following President Trump’s attacks on Michigan’s election process, armed supporters surrounded the home of the Michigan Secretary of State; after President Trump’s attacks on the election in Arizona, his supporters surrounded the home of the Arizona Secretary of State and chanted, “We are watching you!”; after President Trump targeted the election outcome in Georgia, state election officials received a wave of death threats.52 On December 1, as described above, Gabriel Sterling (who voted for Trump) warned President Trump that his incendiary rhetoric could mean that “someone’s going to get killed.” Yet President Trump not only refused to condemn any of this dangerous and threatening conduct; as detailed above, he also escalated his inflammatory and militaristic demands. That trend was matched by escalating violence. On December 12, for instance, clashes between Trump supporters and law enforcement and counter protestors at the “Second Million MAGA March” resulted in dozens of arrests and several stabbings, and at least one leader of the Proud Boys was later arrested for vandalizing a church.53
Given all that, the crowd which assembled on January 6 unsurprisingly included many who were armed, angry, and dangerous—and poised on a hair trigger for President Trump to confirm that they indeed had to “fight” to save America from an imagined conspiracy. Answering to the President’s call to mobilize, thousands arrived in Washington for the purpose (aggressively championed by the President) of doing anything necessary to stop the Joint Session of Congress from finalizing the election results. Many who arrived brought weapons, plans of the Capitol building, and even tactical gear, including ropes, military helmets, ladders, and zip tie restraints.54
This mobilization was not hidden away in the dead of night. It was widely discussed on websites—such as TheDonald.win—that, as confirmed by a former White House staff member, were “closely monitored” by President Trump’s social media operation.55 These sites hosted hundreds of posts about plans for the attack on the Capitol, with detailed discussions of weaponry and directions to “find the tunnels” and “arrest the worst traitors.”56 At TheDonald.win, one poster stated: “If Congress illegally certifies Biden, … Trump would have absolutely no choice but to demand us to storm Congress and kill/beat them up for it.”57 Another poster wrote: “[Trump] can order the NAT guard to stand down if needed. unfortunately he has no control over the Capitol Police... but there are only around 2k of them and a lot are useless fat asses or girls.”58 In their posts, extremists made it clear that they were prepared to fight at President Trump’s direction.
These calls for violence at the Capitol were widely covered. On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60 On January 5, the Washington Post warned that “[f]arright online forums are seething with references to potential violence and urging supporters of President Trump to bring guns to Wednesday’s protests in Washington.”61 These calls to action, the Washington Post explained, were “direct responses to Trump’s demands that his supporters pack the nation’s capital in support of his bogus claims that November’s national vote for Biden resulted from election fraud.”62 Other outlets reported threats to the Joint Session, with headlines such as “Violent threats ripple through far-right internet forums ahead of protest,” and “MAGA Geniuses Plot Takeover of US Capitol.”63
City officials, such as D.C. Mayor Muriel Bowser, also warned that the rally posed a high risk of violence. Mayor Bowser announced that all D.C. police officers would report on January 6, and asked residents to avoid the downtown area and “not to engage with demonstrators who come to our city seeking confrontation.”64 Law enforcement activity in the days leading up to January 6 confirmed that the gathering was dangerous. On January 3, a Capitol Police intelligence report warned of increased risk of violence targeted against Congress “as the last opportunity to overturn the results of the presidential election.”65 On January 5, an FBI office in Virginia also issued an explicit warning that extremists were preparing to travel to Washington to commit violence and start a “war.”66 District of Columbia police made several protest-related arrests on January 4 and 5, including for weapons charges and assaulting a police officer. The arrests were widely publicized and included the leader of the Proud Boys, who was arrested with high capacity firearms magazines, which he claimed were meant to be supplied to another rally attendant.67
In all these ways—and more, as we will show at trial—President Trump created a powder keg on January 6. Hundreds were prepared for violence at his direction. They were prepared to do whatever it took to keep him in power. All they needed to hear was that their President needed them to “fight like hell.” All they needed was for President Trump to strike a match.
C. Vice President Pence Refuses to Overturn the Election ResultsBy the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.
In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72
Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73
This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.
D. President Trump Incites Insurrectionists to Attack the CapitolShortly before noon on January 6, President Trump took the stage at his “Save America Rally” and spoke from a podium bearing the Seal of the President of the United States.74 By the time he addressed the angry crowd, Rudy Giuliani (his lawyer) had called for “trial by combat.”75 President Trump praised Giuliani, saying “he’s got guts, he fights.”
Over the following hour, President Trump repeatedly reiterated his claim that Democrats had “stolen” the election. He described vote tranches that favored President Biden as “explosions of bullshit.” 76 He exhorted the crowd to “
fight much harder” to “
stop the steal” and “
take back our country.”77 He also demanded again that Vice President Pence illegally interfere with the work of the Joint Session—a position that the Vice President rejected even as President Trump spoke. Time and again, President Trump declared that the future of the country was on the line and that only the crowd assembled before him could stop the massive fraud taking place at the Capitol.
At numerous points during the rally, President Trump urged the crowd toward the Capitol, where the Joint Session was about to start.78 In response, an early wave surged toward the building and started to pull down barricades around its perimeter. Twenty minutes into the rally, President Trump said that those marching toward the Capitol should do so “peacefully.” But then he spoke for another 50 minutes, using highly inflammatory rhetoric—exactly the kind of language calculated to incite violence given what had been reported about the crowd. He declared, “
we fight, we fight like hell,” because “
if you don’t fight like hell you’re not going to have a country anymore.”79
Videos of the crowd eliminate any doubt that President Trump’s words in fact incited the crowd to commit violence. Immediately after President Trump told the crowd that “
you’ll never take back our country with weakness,” and that “
[y]ou have to show strength,” supporters can be heard loudly shouting “take the Capitol right now!” and “invade the Capitol building!”80 At another point, the crowd interrupted him with chants of “Fight for Trump!” The President did not try to soothe their aggression, but instead smiled and responded, “Thank you.”81 As many in the crowd instantly recognized, the tenor of his speech (and his repeated demand that they “fight like hell” and “show strength” to save their country) belied any desire for a peaceful demonstration.82 Those who had come to the rally looking for a signal from their President found it in his remarks. Rather than quell the crowd, urge peaceful demonstration, or promise to carry on the fight over the years to come, the overwhelming thrust of President Trump’s remarks—delivered to an armed, angry crowd widely known to be prepared for violence on his behalf—was a militaristic demand that they must fight to stop what was occurring in the Capitol at that very moment.
President Trump ended his speech by again imploring supporters to march to the Capitol, shouting, “So let’s walk down Pennsylvania Avenue!”83 Although President Trump ducked out and returned to the White House to watch the day’s events on television—and to lobby allies to stall the Joint Session—thousands of people, many of them armed, marched on the Capitol as he instructed.
E. Insurrectionists Incited by President Trump Attack the CapitolProvoked and incited by President Trump, who told them to “fight like hell,” hundreds of insurrectionists arrived at the Capitol and launched an assault on the building—a seditious, deadly attack against the Legislative Branch and the Vice President without parallel in American history.
In short order, President Trump’s mob crashed through security barriers that had been set up around the Capitol perimeter, tore down scaffolding, and bludgeoned law enforcement personnel guarding the building.84 Rioters wearing Trump paraphernalia shoved and punched Capitol Police officers, gouged their eyes, assaulted them with pepper spray and projectiles, and denounced them as “cowards” and “traitors.”85 Rioters attacked law enforcement personnel with weapons they had brought with them or stolen from the police: sledgehammers, baseball bats, hockey sticks, crutches, flagpoles, police shields, and fire extinguishers.86 They tore off officers’ helmets, beat them with batons, and deployed chemical irritants including bear spray, a chemical irritant similar to tear gas, designed to be used by hunters to fend off bear attacks.87 Some attackers wore gas masks and bulletproof vests; many carried firearms—indeed, at least six handguns were recovered after the insurrection88—while others carried knives, brass knuckles, a noose, and other deadly weapons.89 One officer attempting to guard the Capitol described the attack as a “medieval battle scene.”90
After storming through the barricades surrounding the building, rioters laid siege to the Capitol itself. One rioter screamed, “What are we waiting for? We already voted and what have they done? They stole it! We want our fucking country back! Let’s take it!”91 Some in the mob scaled walls to reach the Capitol, while others climbed makeshift ladders and still others clambered over one another to get inside.92 The mob physically overwhelmed law enforcement personnel guarding the entrances to the building and smashed through windows to gain access.93 Police put their own lives at risk to defend the Capitol, but they were overcome by a crush of insurrectionists.
The mob breached the Capitol on the Senate side first, after the Joint Session had separated for each Chamber to consider an objection to Arizona’s Electoral College votes.94 Senators were in the midst of debate when rioters stormed into the building.95 Secret Service agents swiftly rushed Vice President Pence out of the Senate and evacuated him and his family to elsewhere in the Capitol complex, avoiding a potentially deadly encounter.96 A Capitol Police officer shrewdly and heroically led a violent crowd away from the entrance to the Senate Chamber, narrowly preventing a swarm of insurrectionists from overcoming Senators who remained just feet away.97 After that, the violent mob inside the Capitol embarked on a deadly mission.
Videos of the events show that dozens of the insurrectionists specifically hunted Vice President Pence and House Speaker Nancy Pelosi—the first and second in the line of Presidential succession, respectively. “Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,” said one rioter. “I mean, it became a mob.”98 Rioters chanted, “
Hang Mike Pence!” 99 Another shouted, “Mike Pence, we’re coming for you … fucking traitor!”100 Others shouted, “
Tell Pelosi we’re coming for that bitch.”101 One rioter said that he and other rioters “kicked in Nancy Pelosi’s office door” and that “Crazy Nancy probably would have been torn into little pieces but she was nowhere to be seen.”102
The insurrectionists also menaced Members of Congress, their staffs, their families, and Capitol personnel. Senators were evacuated from their Chamber, scrambling quickly just as the mob massed nearby.103 Rioters ultimately overpowered Capitol Police throughout the complex, forcing them to retreat closer and closer to where Members had sought safety. In the House, terrified Members were trapped in the Chamber; they prayed and tried to build makeshift defenses while rioters smashed the entryway.104 Capitol Police dragged furniture to barricade the House Chamber doors against the mob attempting to break in; they then drew their guns to guard the doors.105 Instructed to put on gas masks to protect against chemical agents, some Members called loved ones for fear that they would not survive the assault by President Trump’s insurrectionist mob.106
As Members on the House floor evacuated through the Speaker’s Lobby, rioters saw them and attempted to break through the barricaded glass door, which Capitol Police protected with their guns drawn. The officer at the door shot one woman attempting to break through, merely ten yards from the path where Members were being evacuated to safety from the House floor. Meanwhile, Members of Congress, press, and staff remained trapped in the Gallery, one floor up and fearing for their lives. When gunshots were heard outside the House Chamber, police screamed, “Get down! Get down!” and Members in the Gallery crawled to shelter behind chairs.107
Members and staff who were not on the House floor at the time of the siege were also in danger. Many barricaded themselves in their offices. Speaker Pelosi’s staff hid under a table with the lights turned off for hours while they could hear rioters outside in the Speaker’s office.108 One Member asked his chief of staff to protect his visiting daughter and son-in-law “with her life”— which she did by standing guard at the door clutching a fire iron while his family hid under a table.109
Once inside, insurrectionists desecrated and vandalized the Capitol. They ransacked Congressional Leadership offices—breaking windows and furniture, and stealing electronics and other sensitive material.110 They left bullet marks in the walls, looted art, smeared feces in hallways, and destroyed monuments, including a commemorative display honoring the late Representative John Lewis.111 Many rioters carried Trump flags and signs, while others wore the insignia of fringe militias and extremists such as the Proud Boys and neo-Nazis, including a shirt emblazoned with the slogan, “Camp Auschwitz.”112 One insurrectionist paraded the Confederate battle flag through the Capitol halls—an act that thousands of troops gave their lives to prevent during the Civil War.113
Shortly after Senators had been evacuated from the Senate Chamber, insurrectionists entered it and rummaged through Senators’ desks, taking photos of private notes and letters.114 One of them shouted “Trump won that election!” on the Senate dais where Vice President Pence had presided.115 Another rioter climbed onto the dais, announcing that “I’m gonna take a seat in this chair, because Mike Pence is a fucking traitor.”116 He left a note on the Vice President’s desk stating, “ITS ONLY A MATTER OF TIME / JUSTICE IS COMING.”117 Some insurrectionists carried zip ties that could be used as handcuffs—apparently in anticipation of taking hostages.118
Meanwhile, the mob outside the building continued to attack the police and wreak havoc. Some erected a gallows directly outside of the Capitol.119 Others disabled police vehicles, and still others left threatening messages for Members of Congress.120 In a nearby pickup truck belonging to a Trump supporter who had driven to Washington for the day’s events, police discovered materials for making napalm-like explosives, a rifle, a shotgun, three pistols, five types of ammunition, a crossbow, several machetes, a stun gun, and smoke devices.121 Police found two other explosive devices near the Capitol, outside the offices of the Republican National Committee and the Democratic National Committee.122 Law enforcement is currently seeking more information on a hooded figure captured on camera transporting the suspected pipe bombs.123
Provoked by President Trump’s statements at the rally, many insurrectionists who assaulted the Capitol proudly proclaimed that they were doing President Trump’s bidding. One told police officers that he came as part of a group of “patriots” “at the request of the President.”124 In a livestreamed video from inside the Capitol, another declared that “
[o]ur president wants us here. … We wait and take orders from our president.”125 Yet another rioter yelled at police officers, “
[w]e were invited here … by the President of the United States!”126
After the insurrection, one participant who broke into the Capitol wearing combat gear and carrying zip ties stated that he acted because “[t]he President asked for his supporters to be there to attend, and I felt like it was important, because of how much I love this country, to actually be there.”127 Another asserted, “I thought I was following my President. … He asked us to fly there, he asked us to be there, so
I was doing what he asked us to do.”128 She explained that she believed that she had “
answered the call of [her] president,” echoing the views of other participants.129 Subsequent reporting revealed that far-right groups had rallied members to attend the event based upon “the green light from the President.”130
The insurrectionists killed a Capitol Police officer by striking him in the head with a fire extinguisher.131 They injured over 140 police officers, including at least 81 U.S. Capitol Police officers and 65 members of the Metropolitan Police Department, with many requiring hospitalization and significant medical treatment.132 One suffered an apparent heart attack after he was hit six times with a stun gun; another lost part of a finger.133 To cite just a few of the many incidents of violence captured on video: multiple officers were dragged down a flight of stairs and beaten with metal pipes and an American flag pole; another was bludgeoned with a hockey stick; another was crushed as he attempted to guard a door to the Capitol.134 Rioters shouted as they surrounded one fallen officer: “We got one!” Others urged, “Kill him with his own gun!”135 Four rioters died during the attack.136
It took more than three hours to secure the Capitol after the insurrectionists invaded the building.137 Another three hours passed before the Joint Session could resume.138 The rioters tried but—as Majority Leader McConnell noted—ultimately failed to prevent Vice President Pence and Congress from carrying out their constitutional responsibility to count the Electoral College votes.139 At approximately 4 AM, President Biden was confirmed as the winner of the 2020 election.140
