Part 3 of 4
a. Article I of the ConstitutionArticle I sets up the Legislative Branch of the federal government. In Section 2, it vests the House with the “sole Power of Impeachment.” This is an “express, distinct, positive, absolute and unqualified grant of jurisdictional power to the House of Representatives to impeach.”247 And as explained above, the phrase “Power of Impeachment” had a well-defined, well-developed meaning in the 1780s that the Framers understood to encompass former officers. Whenever the House exercises its “sole Power of Impeachment,” the Senate has comprehensive, exclusive jurisdiction under Article I, Section 3, which vests it with “the sole Power to try all Impeachments.”
These are the only provisions anywhere in the Constitution that affirmatively vest and define the jurisdiction of the House and Senate in matters of impeachment. Both of them provide broad authority, with no statute of limitations, no restriction based on whether a person is still in office, and no other caveats based on when the accused committed their high crimes and misdemeanors. By its plain and categorical language, the Constitution vests the Senate with full jurisdiction to hear any valid impeachment case brought by the House for high crimes and misdemeanors. And it makes perfectly clear that the Senate is empowered to “try all Impeachments,” which at bare minimum must include jurisdiction where the House impeached an official while he was still in office.
As a result, any claim that Congress lacks authority to impeach and convict a former official must arise not from jurisdictional language in the text itself, but from supposed implications of the text. Yet a careful study of the Constitution instead confirms that the Framers intended impeachment to reach anyone who abused power while in office.
This is clear from Article I, Section 3, Clause 7: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (emphasis added). In interpreting this language, we must assign meaning to every word. Following that rule, this provision can only be read as “fixing a minimum and maximum penalty.”248 As Professor McConnell explains, “the clause does not say that both sanctions are required; it says that the judgment may not go beyond imposition of both sanctions.”249 Therefore, “the clause does not require removal; it just precludes the Senate from imposing penalties like fines, imprisonment or death.”250 This language limits the possible remedies as compared to British impeachment, “in which the full range of criminal penalties was available.” 251
Under Clause 7, when the Senate convicts, it (1) may remove the accused if they are in office and (2) separately, it may impose disqualification. What it may not do is impose judgments that “extend further” than those options. Critically, “these ‘judgments’—removal and disqualification— are analytically distinct and linguistically divisible.”252 The text does not say “removal from Office, and then disqualification” or “removal from Office, followed by disqualification.” It simply identifies two separate possible sentences and provides that the Senate cannot exceed them. “[T]he inclusion of both present removal and future disqualification as penalties for impeachment suggests that they are two separate penalties that may be separately applied.”253
In fact, given how the Senate has historically structured its proceedings, it is impossible for the Senate to impose disqualification on a current official: it can disqualify only a former official. If the accused is currently in office, and is convicted by the Senate, they are removed upon conviction. By the time Senators separately vote on disqualification, they are considering what penalty to inflict on someone who is at that point a former officer. In this respect, removal and disqualification must be separate penalties—and disqualification must be available for former officials—because disqualification “is itself necessarily a vote about a former (as opposed to current) officer.”254
Impeachment thus has “two aspects”—and the Constitution “must be read so as to give full effect to both aspects of this power.”255 It provides for removal from office, and it separately provides for disqualification from future officeholding. Consistent with that understanding, “of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them—reinforcing that removal and disqualification are separate inquiries.”256
Ultimately, neither removal nor disqualification is itself the purpose of impeachment. They both serve the deeper purpose of protecting public against officials who have proven themselves a threat to our Constitution. And that purpose would be obstructed if Clause 7 were distorted by an interpretation that precluded the impeachment of former officials. This would create incentives for a President “to behave only early in his term, to conceal his wrongdoing long enough to run out the clock, and to skip out of office if congressional action becomes a serious issue.”257 To ensure that the impeachment power promotes integrity in office, the Constitution must be given its natural reading—one that treats the judgment of disqualification as a distinct remedy that can be imposed on both current and former officials following conviction by the Senate.
Although President Trump may argue that Clause 7 limits impeachment only to cases where removal can occur, that view is mistaken. As explained, it clashes with the text of the Constitution. Further, it rests on a logical fallacy. Clause 7 bars the Senate from imposing any sentence beyond removal or disqualification. But “a prohibition against doing more than two things cannot be turned into a command to do both or neither.”258 “It certainly will not be seriously maintained that, when a statute prescribes two punishments, one of which has become impossible, the offender is thereby exempted from the other.”259 Such analysis collapses upon scrutiny: in authorizing two possible penalties upon conviction, and saying the Senate may not exceed them, the Constitution did not confer a right on the accused to escape trial entirely because one of the penalties is unavailable. If a defendant made that contention in court, her argument would be rejected out of hand.
That position is especially untenable because it would give abusive officials total control over their own impeachment proceedings. Any official “who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote.”260 Needless to say, there is an overwhelming presumption against “a proposition that makes the jurisdiction of the Senate depend upon the will of the accused,” and that “would practically annihilate the power of impeachment in all cases of guilt clearly provable.”261 The Framers did not design the Constitution’s mightiest safeguards to be so easily undermined. As House Manager James Proctor Knott of Kentucky explained to the Senate during the trial of Secretary Belknap, the ultimate question is simply stated: “Whether you exercise the functions devolved upon you today as the highest court known to our Government by virtue of a constitutional power, or merely at the will and pleasure of the accused.”262
To ask that question is to answer it. The Framers authorized disqualification for a reason. They knew that in especially grievous cases, a failure to impeach and disqualify could imperil the nation—both by setting a dangerous precedent and by allowing an official to repeat his misconduct. It is implausible that the Framers structured impeachment to allow abusive officials, at their own discretion, to readily escape trial, judgment, and disqualification. Instead, the Framers adhered to established English and state practice. And they used language in Article I, Section 3, Clause 7 that very clearly treats removal and disqualification as separate possible judgments upon conviction. It is therefore wrong to assert that “removal from office is the sole object of impeachment,” since “the Constitution authorizes a sentence of disqualification that may be as properly pronounced against the man who has left office as against him who clings to it.”263
That conclusion is confirmed (and independently required) by the language used in the impeachment provisions of Article I, Section 3, Clauses 6 and 7:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
(emphasis added).
The word choice here is significant, especially in contrast to Article II, Section 4 of the Constitution, which provides that “all civil Officers of the United States” must be removed from office upon conviction for impeachable offenses. Unlike that provision, Article I—which creates the impeachment power and vests Congress with jurisdiction—does not refer to “civil Officers.” Instead, in describing who may be subject to impeachment, it uses broader language: “Person” and “Party.” The Framers chose their words carefully. They could have written “civil Officers” in Article I to describe who can be impeached, yet they did not do so. It follows that there must be a “Person” or “Party” subject to impeachment who is not a “civil Officer[].” But in order to face impeachment, a person must commit high crimes and misdemeanors, which by definition only a government official can do. That leaves only a single possible explanation for why the Framers used “Person” and “Party” rather than “civil Officers” in Article I, Section 3: they wanted to ensure that the text of the Constitution covered the impeachment, conviction, and disqualification of former officials for high crimes and misdemeanors committed while they were in office.264
b. Article II of the ConstitutionArticle II defines and limits the authority of the Executive Branch. As a review of its plain text confirms, Article II “contains no grant of power” to any branch of government on the subject of impeachment.265 Instead, it addresses impeachment only twice and, significantly, only to constrain the Executive Branch. Although President Trump may attempt to rely on language in Article II to contest the Senate’s jurisdiction over him, any such reliance would be misplaced.
First consider Article II, Section 2, which provides that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” (emphasis added). This rule reflects a critical feature of the Constitution’s design: because impeachment “is a great check upon misconduct in the executive branch . . . the power of impeachment and conviction is placed as far as possible beyond the influence of or interference by the executive branch or any member therefore.”266 An impeachment proceeding is not subject to a Presidential veto. It does not depend upon support from federal prosecutors (who serve in the Executive Branch). It can override the President’s ordinarily sweeping discretion to select his own officers. And a President cannot use his pardon power to prevent Congress from impeaching and convicting anyone who has committed a great and dangerous offense. These aspects of impeachment are essential to its role in the separation of powers. The jurisdiction and authority of Congress in matters of impeachment are not subject to control by the Executive Branch; after all, a major purpose of the impeachment power is to restrain the Executive Branch.
This principle confirms that former officials must be subject to impeachment for any and all abuses committed while in office. Under the Appointments Clause—which appears in Article II of the Constitution—the President enjoys a broad “removal power.”267 This allows him to fire many officials within the Executive Branch. If only current officials could be impeached for high crimes and misdemeanors, the President could easily stop impeachments by firing officials accused (or suspected) of high crimes and misdemeanors. That would prevent Congress from getting to the bottom of what happened. It would also weaken the deterrent effect of impeachment, and allow the President to block the Senate from convicting and disqualifying officials who deserve it.
Again, the Framers were not foolish. The Constitution does not enable the President to accomplish through his removal power the very same interference with impeachment that it forbids by expressly limiting his pardon power. As explained above, it allows the impeachment of former officials for abuses committed in office, thus ensuring that the President’s power to fire officials cannot halt an impeachment. This rule also avoids another awkward result: if only current officials could be impeached, a President might face a choice between leaving a scofflaw in office (so that an impeachment process could unfold) or immediately firing him to protect the public (which would also stop the impeachment and make it impossible for the Senate to impose disqualification, even if fully warranted).268 As a matter of constitutional text and structure—not to mention common sense—Article II, Section 2 strongly supports the conclusion that former officials remain subject to impeachment and trial for grievous abuses committed during their tenure in office.
So does Article II, Section 4: “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.” President Trump may cite this provision to argue that only current officials can be impeached, but that argument has no basis in the text.
Article II, Section 4 states a straightforward rule: whenever a civil officer is impeached and convicted for high crimes and misdemeanors, they “shall be removed.” Absolutely nothing about this rule implies, let alone requires, that former officials—who can still face disqualification—are immune from impeachment and conviction. That is unsurprising, since this provision is contained in a part of the Constitution addressed only to current officers, whereas the impeachment provisions set forth in Article I use broader language and emerge from a tradition that covers former officials. Indeed; it would be strange for a provision concerning what happens when a civil officer is convicted to somehow indirectly control the Senate’s power under Article I to try all impeachments. As Professor McConnell observes, Article II, Section 4 “does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.”269
It is therefore a mistake to read Article II, Section 4 as somehow providing protection to officials who abuse their power but escape impeachment while in office (e.g., by committing abuse in their final days, or by concealing wrongdoing, or by resigning at the last minute). Like the rule that pardons cannot defeat an impeachment, the rule set forth in Section 4 is meant to restrain the Executive Branch—and it does so by establishing a baseline requirement that officials at least be removed if convicted of impeachable offenses. Thus, whereas the first half of Section 4 concerns itself generally with the requirements for conviction (high crimes and misdemeanors), the second half speaks only about the consequences of convicting a current officer (removal from office).
President Trump may argue that Article II, Section 4 makes removal the primary purpose of any impeachment, and that it is strange to imagine an impeachment trial that cannot result in removal. Yet that misreads both Section 4 and Article I. “The fact that the Constitution empowers the Senate to disqualify, as well as remove from office, would, it seems, be a perfect answer to the assumption that the sole purpose of impeachment is the removal from office.”270 The Senate’s own practice reflects this: “Senators vote ‘guilty’ or ‘not guilty.’ Their formal verdict is not ‘remove’ or ‘don’t remove.’”271 Further, the purpose of impeachment is to protect the nation by deterring official misconduct and ensuring accountability for those who abuse power. Removal and disqualification are each methods of achieving that purpose, which would be hindered rather than furthered if officials knew they could escape any reckoning through resignation or by waiting until their last days in office. “It certainly makes no sense for presidents who commit misconduct late in their terms . . . to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions.”272
In the alternative, President Trump might contend that the reference to “civil Officers” in Article II means that only government officials—and not private citizens—can ever be subject to impeachment. The flaw in this argument is obvious: “[P]residents and the other officials who are subject to impeachment are not like the rest of us. Once they leave office and return to their private lives, they are still ex-presidents and former officials who may have committed impeachable offenses in office.”273 In other words, impeaching a former official for their official acts while they were a “civil Officer[]” is not the same as impeaching a private citizen. The Constitution “demands of all its officials purity, honesty, and fidelity, and it is plain enough and strong enough to enforce its demands at all times and upon every class of those who enjoy its high places.”274 There is thus no basis for President Trump to object to the Senate’s jurisdiction over him (or to raise related Bill of Attainder Clause concerns). The trial of a former official for abuses he committed as an official— arising from an impeachment that also occurred while he was in office—poses no risk of subjecting private parties to punitive legislative action targeting their private conduct.
Next, President Trump may argue that it somehow matters that Chief Justice Roberts is not presiding over this trial. It does not. Under Article I, Section 3, “When the President of the United States is tried, the Chief Justice shall preside.” But under Article II, there is only ever a single person at a time who is “the President of the United States.” That person is now Joseph R. Biden, Jr. As a former official, President Trump does not trigger the requirement that the Chief Justice preside. Moreover, the reason the Chief Justice is summoned is to ensure the Vice President does not preside over a trial where conviction would result in her becoming the President; obviously, that concern is not implicated in the trial of a former president. The normal rules for a Senate trial therefore apply— including those governing who presides (which allow the President pro tempore to do so).275
Finally, President Trump may assert that finding jurisdiction here will invite the House to undertake a slew of other impeachments, dusting off old issues and pursuing tired grudges. But history disproves such slippery slope concerns. For centuries, the prevailing view—bolstered by the Blount and then Belknap precedents—has been that former officials are subject to impeachment. Yet only in Belknap’s case did the House take that step. In the vast majority of cases, including that of President Richard Nixon, the House has properly recognized that an official’s resignation or departure abated any need for the extraordinary remedy of impeachment. That remains true today: “There is no likelihood that we shall ever unlimber this clumsy and bulky monster piece of ordinance to take aim at an object from which all danger has gone by.”276 But President Trump’s case is exceptional. The danger has not “gone by.” The threat to our democracy makes Watergate pale in comparison—and remains with us to this day. Here is the rare case in which love of the Constitution, and commitment to our democracy, required the House to impeach President Trump. And for the same reasons, the Senate can and must take jurisdiction.
C. Congressional Precedent Supports Jurisdiction over President TrumpPrior practice of the House and Senate point the same way as a careful study of the Constitution. Indeed, the case for exercising jurisdiction over President Trump—and convicting him of high crimes and misdemeanors—is even stronger than in any of these precedents.
1. Senator William BlountThe Nation’s very first impeachment trial concerned an ex-official: Senator William Blount, who had plotted to give the British control over parts of Florida and Louisiana (which were then controlled by Spain and France, respectively).277 After President Adams provided the House with evidence of this betrayal, the House impeached Blount on July 7, 1797. One day later, by a vote of 25 to 1, the Senate expelled him from its ranks. This was not the end of the matter, however. The House concluded that Blount should also be disqualified from future officeholding, so it proceeded with its investigation and adopted five articles of impeachment on January 29, 1798.278 Despite Blount’s refusal to appear in person, the Senate commenced an impeachment trial with Thomas Jefferson presiding. Ultimately, it dismissed the case on the ground that Members of Congress are not subject to the impeachment power at all. But notably, Blount had also asserted that the Senate lacked jurisdiction over him as a former official—and the Senate did not dismiss on that basis.279
2. Secretary of War William BelknapNearly eighty years later, in 1876, the House Committee on Expenditures discovered that Secretary of War William Belknap was involved in an elaborate kickback scheme.280 Hours before the committee released its report, Belknap “rushed to the White House in an unholy panic to tender his resignation,” which President Ulysses Grant accepted on the spot.281 Two hours later, fully aware that Belknap had resigned, the House voted unanimously to impeach him.282
The ensuing Senate trial is “the single most important precedent” on the question whether a former official is subject to impeachment.283 Belknap strenuously argued that the Senate lacked jurisdiction because he had resigned before the House impeached him. The Senate heard “[m]ore than two weeks of wide-ranging arguments on the question . . . followed by two weeks of [S]enators’ reciting their own conclusions.”284 After this exhaustive presentation—which covered virtually all of the points likely to be raised here—the Senate voted 37 to 29 that it had jurisdiction over the case. It proceeded to a full presentation of argument and evidence over a two-month period and ultimately acquitted Belknap, though only after plenary consideration of the merits of the case.
3. Judges Robert Archbald & George EnglishTwo cases from the early 1900s further support the Senate’s jurisdiction here. The first involved Circuit Judge Robert Archbald, who was impeached in 1912. Of the thirteen articles of impeachment that the House approved, six addressed conduct in his former role as a district judge. In the end, Judge Archbald was convicted on five articles relating to his tenure as a circuit judge; on that basis, he was removed from office and disqualified from future officeholding. The Senate acquitted him of two articles relating to his circuit judgeship, as well as the articles concerning his conduct as a district judge. It is clear from the public record, however, that the case against Judge Archbald relating to his earlier role failed on the merits—and that “a majority of the [S]enators voting saw no problem” with impeaching Judge Archbald for conduct in his former office.285 Once again, the arguments for jurisdiction over former officials commanded a clear majority in the Senate.
Fourteen years later, the House impeached District Judge George English for corrupt conduct on the bench. Six days before his Senate trial, Judge English resigned. In light of that decision—and given his advanced age—the House resolved that it did “not desire further to urge the articles of impeachment.”286 In a filing with the Senate, however, the House Managers pointedly stated that “the resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment, to hear and determine [the case].”287 Further, “No [S]enator suggested that it would have been impossible or unconstitutional to proceed if the House had not ‘desired’ to do otherwise.”288 To the contrary, several Senators stated that the Senate in fact retained jurisdiction. Senator William C. Bruce of Maryland remarked, “I deeply regret the conclusion that the House of Representatives has reached.”289 And Senator Duncan Fletcher of Florida wanted it “distinctly understood” that the case was not precedent for the idea that resignation terminates a trial.290 Thus, the proceeding against Judge English supports the Senate’s jurisdiction over former officials, since “the House and the Senate felt that they could have proceeded with [that] case.”291
In fact, as noted above, the case for jurisdiction here is stronger than in any of the precedents just mentioned. Unlike Senator Blount, who was held accountable through expulsion, President Trump will escape responsibility for his betrayal of the Constitution unless this body tries and convicts him. Unlike Secretary Belknap, who resigned before the House could act, President Trump was impeached by the House while he was still in office. Moreover, whereas Secretary Belknap and Judge English left office in disgrace, President Trump insists that his constitutional offenses were perfectly acceptable—and so the precedent set by a failure to try him would pose an astronomically greater threat to the Republic. Finally, unlike in the case of Judge Archbold, the evidence against President Trump is overwhelming. His is personally responsible for an attack that unleashed death and mayhem at the Capitol amid the transfer of power. For Congress to stand aside in the face of such conduct would be a grave abdication of its constitutional duty, and an invitation for future Presidents to act without fear of constraint during their final months in office.
* * * * *
Constitutional history, text, and structure, as well as prior Congressional practice, all confirm that the Senate has jurisdiction to try President Trump. So does common sense. While sworn to faithfully execute the laws—and to preserve, protect, and defend the Constitution—President Trump incited insurrection against the United States government. His conduct endangered the life of every single Member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security. This is precisely the sort of constitutional offense that warrants disqualification from federal office. President Trump has proven his willingness to break and brutalize the law in his quest for power. The Senate must establish beyond doubt, for all time, and for officials of all political parties that President Trump’s behavior was intolerable.
CONCLUSIONPresident Trump falsely asserted that he won the 2020 election and then sought to overturn its results. He and his supporters filed dozens of lawsuits nationwide—including before judges he had appointed—but their claims uniformly failed to persuade. He also tried to convince state and federal election officials and law enforcement personnel to attempt to reverse the election outcome. These attempts failed, too. The only honorable path at that point was for President Trump to accept the results and concede his electoral defeat. Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. As the Capitol was overrun, President Trump was reportedly “delighted.” And rather than take immediate steps to quell the violence and protect lives, President Trump left his Vice President and Congress to fend for themselves while he lobbied allies to continue challenging election results.
As will be shown at trial, President Trump endangered our Republic and inflicted deep and lasting wounds on our Nation. His conduct resulted in more than five deaths and many more injuries. The Capitol was defiled. The line of succession was imperiled. America’s global reputation was damaged. For the first time in history, the transfer of presidential power was interrupted. And the threat of violence remains with us: as President Biden was inaugurated and even now, the Capitol more closely resembles an armed camp than the seat of American democracy.
President Trump’s incitement of insurrection requires his conviction and disqualification from future federal officeholding. This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior. Indeed, it is difficult to imagine a case that more clearly evokes the reasons why the Framers wrote a disqualification power into the Constitution. The need for conviction and disqualification is further supported by Section 3 of the Fourteenth Amendment, which bars from government service those who “having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”292 President Trump’s conduct offends everything that the Constitution stands for. The Senate must make clear to him and all who follow that a President who provokes armed violence against the government of the United States in an effort to overturn the results of an election will face trial and judgment.
Many have suggested that we should turn the page on the tragic events of January 6, 2021. But to heal the wounds he inflicted on the Nation, we must hold President Trump accountable for his conduct and, in so doing, reaffirm our core principles. Failure to convict would embolden future leaders to attempt to retain power by any and all means -- and would suggest that there is no line a President cannot cross. The Senate should make clear to the American people that it stands ready to protect them against a President who provokes violence to subvert our democracy.293
Respectfully submitted,
Jamie Raskin
Diana DeGette
David Cicilline
Joaquin Castro
Eric Swalwell
Ted Lieu
Stacey Plaskett
Madeleine Dean
Joe Neguse
U.S. House of Representatives Managers
February 2, 2021
_______________
Notes:1 Liz Cheney, I Will Vote To Impeach The President (Jan. 12, 2021).
2 Mike DeBonis & Paul Kane, Uncertainty Reigns in Senate as Schumer Pushes Fast Agenda and McConnell Calls Out Trump, Wash. Post (Jan. 19, 2021).
3 U.S. Const., Art. I, § 3, cl. 7.
4 Nick Niedzwiadek, The 9 Most Notable Comments Trump Has Made About Accepting the Election Results, Politico (Sept. 24, 2020).
5 Ryan Goodman et al., Incitement Timeline: Year of Trump’s Actions Leading to the Attack on the Capitol, Just Security (Jan. 11, 2021).
6 Id.
7 Donald Trump Speech Transcript Wisconsin August 17, Rev (Aug. 17, 2020).
8 Donald Trump 2020 RNC Speech Transcript August 24, Rev (Aug. 24, 2020).
9 Donald J. Trump (@realDonaldTrump), Twitter (Nov. 4, 2020, 12:49 AM).
10 Donald J. Trump (@realDonaldTrump), Twitter (Nov. 8, 2020, 9:17 AM).
11 See e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 21, 2020 3:34 PM) (Watch: Hundreds of Activists Gather for ‘Stop the Steal‘ Rally in Georgia
https://t.co/vUG1bqG9yg via BreitbartNews Big Rallies all over the Country. The proof pouring in is undeniable. Many more votes than needed. This was a LANDSLIDE!”); Donald J. Trump (@realDonaldTrump), Twitter (Nov. 24, 2020 10:45 PM) (“Poll: 79 Percent of Trump Voters Believe ‘Election Was Stolen‘
https://t.co/PmMBmt05AI via @BreitbartNews They are 100% correct, but we are fighting hard. Our big lawsuit, which spells out in great detail all of the ballot fraud and more, will soon be filled. RIGGED ELECTION!”); Donald Trump Speech on Election Fraud Claims Transcript, December 2, Rev (Dec. 2, 2020) (But no matter when it happens, when they see fraud, when they see false votes and when those votes number far more than is necessary, you can’t let another person steal that election from you. All over the country, people are together in holding up signs, “Stop the steal.”); Donald J. Trump (@realDonaldTrump), Twitter (Dec. 19, 2020 9:41 AM) (He didn’t win the Election. He lost all 6 Swing States, by a lot. They then dumped hundreds of thousands of votes in each one, and got caught. Now Republican politicians have to fight so that their great victory is not stolen. Don’t be weak fools!).
12 Donald Trump Speech on Election Fraud Claims Transcript, December 2, Rev (Dec. 2, 2020).
13 Id.; see also, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Dec. 30, 2020 2:48 PM) (“United States had more votes than it had people voting, by a lot. This travesty cannot be allowed to stand. It was a Rigged Election, one not even fit for third world countries!”).
14 William Cummings et al., By the Numbers: President Donald Trump’s Failed Efforts to Overturn the Election, USA Today (Jan. 6, 2021).
15 Id.
16 Id.
17 Allison Durkee, Trump Election Lawsuit Against Brad Raffensperger, Brian Kemp Fails in Georgia, Forbes (Jan. 5, 2021).
18 Donald J. Trump For President v. Boockvar, No. 20-3371 (3d Cir. Nov. 27, 2020).
19 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 26, 2020 8:51 AM).
20 Maggie Haberman et al., Trump Targets Michigan in His Ploy to Subvert the Election, N.Y. Times (Nov. 19, 2020); Amy Gardner et al., Trump asks Pennsylvania House Speaker for Help Overturning Election Results, Personally Intervening in a Third State, Wash. Post (Dec. 8, 2020); Ryan Randazzo et al., Arizona Legislature ‘Cannot and Will Not’ Overturn Election, Republican House Speaker Says, Arizona Republic (Dec. 4, 2020).
21 Donald J. Trump (@realDonaldTrump), Twitter (Nov. 18, 2020) (“The Great State of Michigan, with votes being far greater than the number of people who voted, cannot certify the election. The Democrats cheated big time, and got caught. A Republican WIN!”).
22 Kendall Karson et al., Republican Canvassers Ask To ‘Rescind’ Their Votes Certifying Michigan Election Results, ABC News (Nov. 19, 2020).
23 Tom Hamburger et al., Trump Invites Michigan Republican Leaders To Meet Him At White House As He Escalates Attempts To Overturn Election Results, Wash. Post (Nov. 19, 2020).
24 Tim Reid & Lisa Lambert, Republican Georgia Secretary of State Says No Sign of Widespread Fraud in Vote Count, Reuters (Nov. 11, 2020).
25 Tim Kephart, Trump Calls Ga. Secretary of State “Enemy of the People”, CBS46 (Nov. 27, 2020).
26 Jake Lahut, Georgia’s Republican Secretary Of State And His Wife Received Texts Telling Them They Deserve ‘To Face A Firing Squad’ As Trump Escalated His Attacks On Election Results, Business Insider (Nov. 19, 2020); Donald J. Trump (@realDonaldTrump), Twitter (Dec. 7, 2020, 7:50 PM).
27 Stephen Fowler, ‘Someone’s Going To Get Killed’: Ga. Official Blasts GOP Silence On Election Threats, NPR (Dec. 1, 2020).
28 Amy Gardner, ‘Find the Fraud’: Trump Pressured a Georgia Elections Investigator in a Separate Call Legal Experts Say Could Amount to Obstruction, Wash. Post (Jan. 9, 2021).
29 Amy Gardner & Paulina Firozi, Here’s the Full Transcript and Audio of the Call Between Trump and Raffensperger, Wash. Post (Jan. 5, 2021).
30 Id.
31 Katie Benner & Michael S. Schmidt, Barr Hands Prosecutors the Authority to Investigate Voter Fraud Claims, N.Y. Times (Nov. 9, 2020); Memorandum from the Attorney General, Post-Voting Election Irregularity Inquiries (Nov. 9, 2020).
32 Michael Balsamo, Disputing Trump, Barr Says No Widespread Election Fraud, Associated Press (Dec. 1, 2020).
33 Jesse Byrnes, Barr Told Trump that Theories About Stolen Election Were “Bulls---”: Report, The Hill (Jan. 18, 2021).
34 Katie Benner, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General, N.Y. Times (Jan. 22, 2021); Matt Zapotosky et al., Trump Entertained Plan to Install an Attorney General Who Would Help Him Pursue Baseless Election Fraud Claims, Wash. Post (Jan. 22, 2021); Jess Bravin & Sadie Gurman, Trump Pressed Justice Department to Go Directly to Supreme Court to Overturn Election Results, Wall Street J. (Jan. 23, 2021).
35 Id.
36 Katie Benner, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General, N.Y. Times (Jan. 22, 2021).
37 Niels Lesniewski, McConnell Recognizes Biden Win: ‘The Electoral College Has Spoken, Roll Call (Dec. 15, 2020); Nicholas Fandos, Defying Trump, McConnell Seeks to Squelch Bid to Overturn the Election, N.Y. Times (Dec. 15, 2020).
38 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 18, 2020, 9:14 AM).
39 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 19, 2020, 1:42 AM).
40 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 26, 2020, 8:00 AM).
41 Donald J. Trump (@realDonaldTrump), Twitter (Dec. 26, 2020, 8:14 AM).
42 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 1, 2021, 2:53 PM).
43 NBC Washington Staff, 4 Stabbed, 33 Arrested as Trump Supporters, Counterprotesters Clash in Downtown DC, NBC Washington (Dec. 12, 2020).
44 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 1, 2021, 12:52 PM); Donald J. Trump (@realDonaldTrump), Twitter (Jan. 1, 2021, 3:34 PM).
45 Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff Election, Rev (Jan. 4, 2021).
46 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2021, 5:05 PM).
47 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2021, 5:12 PM).
48 Sheera Frenkel & Annie Karni, Proud Boys Celebrate Trump’s ‘Stand By’ Remark About Them At The Debate, New York Times (Sept. 29, 2020).
49 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 31, 2020 8:14 PM).
50 Donald J. Trump (@realDonaldTrump), Twitter (Nov. 1, 2020, 8:18 AM); Katie Shepherd, Trump Cheers Supporters Who Swarmed A Biden Bus In Texas: ‘These Patriots Did Nothing Wrong’, Wash. Post (Nov. 2, 2020).
51 Michael Wines, Here Are the Threats Terrorizing Election Workers, N.Y. Times (Dec. 3, 2020).
52 Nick Corasaniti et al., As Trump Rails Against Loss, His Supporters Become More Threatening, N.Y. Times (updated Jan. 7, 2021); Video: Group Chants ‘We Are Watching You’ outside Arizona Secretary of State Katie Hobbs’ Home, KPNX-TV 12 News (Nov. 18, 2020).
53 Peter Hermann & Keith Alexander, Proud Boys Leader Barred From District By Judge Following His Arrest, Wash. Post (Jan. 5, 2021); Jason Slotkin et al., 4 Stabbed, 33 Arrested After Trump Supporters, Counterprotesters Clash in D.C., NPR (Dec. 12, 2020).
54 See, e.g., Evan Hill et al., They Got a Officer!’: How a Mob Dragged and Beat Police at the Capitol, N.Y. Times (Jan. 11, 2021); Peter Hermann, ‘We Got to Hold This Door’, Wash. Post (Jan. 14, 2021); Rich Schapiro, Stun Guns, ‘Stinger Whips’ and a Crossbow: What Police Found on the Capitol Protesters, NBC News (Jan. 13, 2021).
55 Andrew Feinberg, White House Insiders Say Trump Knew What Was About To Happen At The Capitol— Because of His Social Media Guru Dan Scavino, Independent (Jan. 12, 2021).
56 Adam Rawnsley and Justin Rohrlich, ‘Ready to Die’: Two Months of MAGA Mob Warning Signs, The Daily Beast (Jan. 7, 2021).
57 Greg Miller et al., A Mob Insurrection Stoked by False Claims Of Election Fraud And Promises Of Violent Restoration, Wash. Post (Jan. 9, 2021).
58 House Judiciary Committee Majority Staff Report: Materials in Support of H. Res. 24, Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors, 117th Cong, at 20 (Jan. 12, 2021).
59 Caitlin McFall, Proud Boys Flock to Washington ‘Incognito’ for Jan. 6 Protests, Fox News (Jan. 2, 2021).
60 Joshua Zitser, Far-Right Group Proud Boys Claim They Will Attend January 6 Rally ‘Incognito’ and Wear All-Black to Blend In With Antifa Protestors, Business Insider (Jan. 3, 2021).
61 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).
62 Id.
63 Brandy Zadrozny & Ben Collins, Violent Threats Ripple Through Far-Right Internet Forums Ahead of Protest, NBC News (Jan. 5, 2021); Andrew Beaujon, MAGA Geniuses Plot Takeover of US Capitol, Washingtonian (Jan. 5, 2021); Luke Barr, Law Enforcement Braces For Protests As Trump Supporters Gather In Captial, ABC News (Jan. 5, 2021).
64 Press Release, Office of the Mayor of the District of Columbia, Mayor Bowser Continues Preparation for Upcoming First Amendment Demonstrations (Jan 3, 2021).
65 Carol D. Leonnig, Capitol Police Intelligence Report Warned Three Days Before Attack That ‘Congress Itself’ Could Be Targeted, Washington Post (Jan. 15, 2021).
66 Devlin Barrett and Matt Zapotosky, FBI Report Warned Of ‘War’ At Capitol, Contradicting Claims There Was No Indication Of Looming Violence, Washington Post (Jan. 12, 2021).
67 Jennifer Steinhauer et al., Leader of Proud Boys, a Far-Right Group, Is Arrested as D.C. Braces for Protests, N.Y. Times (Jan. 4, 2021); Peter Hermann & Keith Alexander, Proud Boys Leader Barred From District By Judge Following His Arrest, Wash. Post (Jan. 5, 2021).
68 Jonathan Swan, Zachary Basu, Off the Rails Episode 7: Trump Turns on Pence, Axios (Jan. 20, 2021).
69 Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff Election, Rev (Jan. 4, 2021).
70 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 1:00 AM).
71 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 6, 2021, 8:17 AM).
72 Peter Baker et al., Pence Reached His Limit With Trump. It Wasn’t Pretty., N.Y. Times (Jan. 12, 2021).
73 Mike Pence (@Mike_Pence), Twitter (Jan. 6, 2021, 1:02 PM).
74 Watch LIVE: Save America March at The Ellipse featuring President @realDonaldTrump, RSBN TV (Jan. 6, 2020).
75 Id.; see also Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat’, Rev (Jan. 6, 2021).
76 Watch LIVE: Save America March at The Ellipse featuring President @realDonaldTrump, RSBN TV (Jan. 6, 2020).
77 Id.; see also Maggie Haberman, Trump Told Crowd ‘You Will Never Take Back Our Country with Weakness’, N.Y. Times (Jan. 6, 2021).
78 Watch LIVE: Save America March at The Ellipse featuring President @realDonaldTrump, RSBN TV (Jan. 6, 2020).
79 Id.
80 Ryan Goodman & Justin Hendrix, “Fight for Trump”: Video Evidence of Incitement at the Capitol, Just Security (Jan. 25, 2021).
81 Watch LIVE: Save America March at The Ellipse featuring President @realDonaldTrump, RSBN TV (Jan. 6, 2020).
82 Julia Jacobo, This Is What Trump Told Supporters before Many Stormed Capitol Hill, ABC News (Jan. 7, 2021).
83 Id.
84 Lauren Leatherby et al., How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021).
85 Marc Fisher et al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021).
86 Evan Hill et al., They Got a Officer!’: How a Mob Dragged and Beat Police at the Capitol, N.Y. Times (Jan. 11, 2021); Peter Hermann, ‘We Got to Hold This Door’, Wash. Post (Jan. 14, 2021).
87 Id.; Peter Hermann, ‘We Got to Hold This Door’, Wash. Post (Jan. 14, 2021); Lauren Leatherby et al., How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021); Rich Schapiro, Stun Guns, ‘Stinger Whips’ and a Crossbow: What Police Found on the Capitol Protesters, NBC News (Jan. 13, 2021).
88 See, e.g., Officer Dallan Haynes Statement of Facts, at 2 (Jan. 7, 2021); DC Police Department (@DCPoliceDept), Twitter (Jan. 7, 2021, 1:52 PM).
89 Officer Christopher Frank Affidavit, at 1 (Jan. 6, 2021),
https://perma.cc/YN87-BDKH; Officer Alexandria Sims Affidavit, at 1 (Jan. 7, 2021),
https://perma.cc/392C-CGPC; Special Agent Lawrence Anyaso Affidavit, at 1 (Jan. 7, 2021),
https://perma.cc/M3GZ-WSVM; Luke Mogelson, Among the Insurrectionists, The New Yorker (Jan. 15, 2021).
90 Peter Hermann, ‘We Got to Hold This Door’, Wash. Post (Jan. 14, 2021).
91 Ryan Goodman & Justin Hendrix, “Fight for Trump”: Video Evidence of Incitement at the Capitol, Just Security (Jan. 25, 2021).
92 Marc Fisher et al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021).
93 Id.
94 Lauren Leatherby & Anjali Singhvi, Critical Moments in the Capitol Siege, N.Y. Times (Jan. 15, 2021).
95 Lauren Leatherby et al., How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021).
96 Ashley Parker et al., How the Rioters Who Stormed the Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15, 2021).
97 Id.; Rebecca Tan, A Black Officer Faced Down a Mostly White Mob at the Capitol. Meet Eugene Goodman, Wash. Post (Jan. 14, 2021).
98 Ashley Parker et al., How the Rioters Who Stormed the Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15, 2021).
99 Peter Baker et al., Pence Reached His Limit with Trump. It Wasn’t Pretty, N.Y. Times (Jan. 12, 2021).
100 Ryan Goodman & Justin Hendrix, “Fight for Trump”: Video Evidence of Incitement at the Capitol, Just Security (Jan. 25, 2021).