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Senate witnesses in Trump's impeachment trial could give Republicans causal proof

Any remaining hope for conviction lies in one final move House managers could make: insisting that the Senate call witnesses.
Image: Donald Trump holds rally in Washington D.C as \"Save America March\"
President Donald Trump speaks at "Save America March" rally in Washington, D.C., on Jan. 6.Tayfun Coskun / Anadolu Agency via Getty Images file

UPDATE (Feb. 13, 2021, 1:30 p.m. ET): On Saturday morning, the Senate voted to allow witnesses in Trump's second impeachment trial. A few hours later, Democrats backtracked, reaching a deal to forego witnesses.

The Senate sat in stunned silence this week as House managers showed chilling footage of the takeover of the Capitol by an angry mob of armed insurrectionists attempting to stop the certification of the 2020 presidential election. No one watching could doubt the gravity of the threat U.S. lawmakers faced on Jan. 6, as well as the peril to U.S. democracy.

No one watching could doubt the gravity of the threat U.S. lawmakers faced on Jan. 6, as well as the peril to U.S. democracy.

At the same time, Justice Department filings indicate that at least some of the rioters believed they were doing the bidding of President Donald Trump. Jessica Watkins, a member of the militia group the Oath Keepers, said she was “awaiting direction from President Trump.” Back in November, Watkins wrote in a text message to an associate that “POTUS has the right to activate units too. If Trump asks me to come, I will,” she said. And then she did.

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Yet it remains unlikely that as matters now stand, House managers will convince 67 Senators to vote in favor of conviction. Fealty to Donald Trump is no doubt mostly to blame, despite Senate Minority Leader Mitch McConnell’s call this week for senators to vote their conscience. Any remaining hope for conviction lies in one final move: insisting that the Senate call witnesses like Jessica Watkins or Edward Caldwell, another apparent member of the Oath Keepers, as well as witnesses higher up in the chain who may have had contact with Trump on the day of the riot, or before.

House managers have shown that Trump uttered words and issued tweets condoning violence. As he put it, “If you don’t fight like hell, you’re not going to have a country anymore.” Soon thereafter anangry mob stormed the halls of Congress, calling for the speaker of the House and the vice president to show themselves. They were equipped with a gallows, zip ties, tear gas, body armor and a variety of weapons indicating a premeditated intent to engage in violence.

For some GOP senators, however, an apparent point of weakness in the House managers’ case may be establishing the causal link between Trump’s behavior and that of the rioters. Indeed, this is a point Trump’s lawyers hammered home on Friday during their defense. Citing evidence that groups like the Oath Keepers had engaged in extensive planning in the run-up to the event, Trump attorney Bruce Castor asked how the former president’s speech on that day could have incited the violence.

The answer, of course, as House managers have shown, is that Trump’s entire pattern of conduct, from the moment it was clear he had lost the election through Jan. 6, constitutes one long incitement to violence. Yet the point can be nailed down with still greater legal precision, as Castor himself encouraged, by considering how this issue might be handled in a federal criminal trial.

Imagine if Trump were charged with the criminal equivalent of the impeachment charge of “incitement of insurrection.” He could be tried for “rebellion or insurrection” (18 U.S. Code § 2383), for example, formulated as a conspiracy crime (18 U.S.C. § 371), or "conspiracy to engage in rebellion or insurrection." Alternatively, he could be charged with “seditious conspiracy” (18 U.S.C. § 2384), a similar charge based on the concept of “sedition” rather than “rebellion.”

How would the causal question be analyzed? Two avenues exist. First, the federal complicity statute (18 U.S.C. § 2) provides that if one person "solicits" another person to commit a crime, the first person will be treated as though he had committed the crime himself. If Trump solicited the crowd to engage in criminal behavior, federal law would treat him as though he himself had stormed the Capitol.

Did Trump solicit the insurrectionists? The federal solicitation statute (18 U.S.C. § 373) contains two requirements: the circumstances must suggest that Trump had the intent to engage in conduct amounting to a violent felony and that he “solicited, commanded, induced or otherwise endeavored” to persuade his followers to engage in such conduct.

The second factor seems clearly satisfied, both with Trump’s language during the Jan. 6 rally and in the run-up to that day. Trump exhorted an angry crowd to march down to the Capitol and to “fight” to “stop the steal.” These words in combination with the relentless, weekslong clamoring of both Trump and his associates that President Joe Biden’s election win was the product of fraud made Trump’s words on that day like pouring kerosene on a bonfire he had already lit.

The nub of the issue seems to be the first factor: Did Trump truly intend the violence that erupted following his inflammatory words? Did he foresee violence as a result of what he said? House managers this week have made an extraordinarily compelling case that he did. They repeatedly pointed to signs he was pleased by what he saw. His own allies had to exhort him repeatedly before he told his supporters to stop the violence. When he eventually called off the mob by tweet, he told them they were “very special” and that he “loved them.” There were no signs that he was horrified by the terror he had unleashed.

Witnesses, however, could help answer critical questions about Trump’s state of mind that day. As Sen. Mitt Romney, R-Utah, asked at the end of Friday’s session: whether Trump knew about the peril to his vice president and whether he knew that Pence had been removed from the Senate by the Secret Service at the time Trump tweeted disparagingly, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution . . . USA demands the truth!” This is a question that Sen. Tommy Tuberville, R-Ala., for example, might be able to answer were he called to testify, because Tuberville had told Trump by phone about Pence’s evacuation. Other questions from Romney might be answered by witnesses from the Trump White House inner circle.

Ultimately, of course, the best witness to testify to Trump’s state of mind would be Donald Trump himself. Given that he has already declined the invitation to testify, he should be subpoenaed to appear.

What would a federal prosecutor need to make the case that Trump entered into a conspiracy to overthrow the U.S. government?

With regard to the issue of advance planning of the attack, an alternative kind of “linking” principle is the concept of “conspiracy.” A conspiracy exists if two or more persons agree, among themselves, that they will undertake a criminal enterprise. No direct causal link need be established between one person’s expressed intentions and another person’s actions.

What would a federal prosecutor need to make the case that Trump entered into a conspiracy to overthrow the U.S. government? Some of the rioters, like Watkins and Caldwell, have already been charged with conspiracy. That concept could supply the link between Trump and them.

Once again, the key in a criminal trial would be to call relevant witnesses, as we urged House managers to do earlier in the week.

Sen. Sheldon Whitehouse, D-R.I., recently suggested in an MSNBC interview that the Senate Ethics Committee is investigating whether GOP senators intentionally sought to delay the certification of the votes in order to give rioters time to breach the Capitol. Some GOP senators were directly in touch with the president during the insurrection. Whitehouse further suggested that this communication could have been an effort to coordinate with regard to the timing of the mob’s onslaught.

If these shocking allegations are true, then taken together, prosecutors may be able to link rioters to GOP senators and link GOP senators to the president, a pattern that would place them all in the same, massive conspiracy. Such a plot to overthrow the U.S. government by American citizens would suggest that our democracy is facing a peril graver than any we have seen since the Civil War.

Impeachment, of course, does not require “proof beyond a reasonable doubt.” For most senators watching, more proof that Trump incited a violent riot (and that this incitement constitutes a “high crime or misdemeanor”) is not needed. For others, notably the 44 GOP senators who have indicated they will vote to acquit, the question of causation — phrased as whether there was indeed incitement — still offers an off-ramp.

As one of us urged with the last impeachment, given the critical importance to the country of the outcome of the trial, the Senate should not be in a hurry. Calling witnesses would likely require issuing subpoenas and then having the patience to enforce them. But given that the Democrats hold the bare majority needed to make that call, the choice is theirs.

Pursuing witnesses would also have a collateral benefit: It would allow Congress to strengthen its investigative authority. Last summer, for example, the House was denied access to Trump’s financial records in the Mazars case because the Supreme Court found Congress had no legitimate legislative purpose in seeking the records. An ongoing impeachment trial would supply the purpose needed for a court to grant enforcement in this case.

A criminal inquiry into Donald Trump’s conduct relating to the Jan. 6 violence may yet happen. That possibility makes it all the more essential that in this, the most critical political trial of the 21st century, the Senate attempt to discern the motivations, intentions and communications of the president in the run-up to Jan. 6 before they make the fateful decision to acquit. Congress has a solemn duty to do its utmost to defend our democracy against those who threaten its existence. This was our warning. Senators who vote to acquit ignore it at the country’s peril.