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But the charge as written not only makes bipartisan support difficult; it also creates a hornet’s nest of legal argumentation—about the First Amendment, how to prove “incitement” and the meaning of “insurrection”—that could complicate and impede Senate conviction. The attack on the Capitol can be more simply, and less controversially, stated in terms of the federal crime of “seditious conspiracy.”
By using the word incite, the draft focuses on the speech given by Trump before the storming of the Capitol. This narrow focus has caused some lawyers and scholars, including Trump’s own previous impeachment defense attorney Alan Dershowitz, to say Democrats are trying to punish constitutionally-protected speech. The very potential for debate gives Congressional Republicans, including those who may disapprove of both Trump’s recent actions and inactions, an opportunity to oppose impeachment.
It is also not necessary to characterize the events that transpired as an insurrection, which may strike some as an exaggeration, when the behavior of those who attacked the Capitol fit the federal crime of “seditious conspiracy” (which actually carries twice the ten-year sentence of insurrection). This crime is committed whenever two or more people conspire “by force to seize, take, or possess any property of the United States,” which is exactly what took place on Wednesday. Also, those who attacked the Capitol did so with the explicit purpose of preventing Congress from carrying out its legal duty to certify the election, thus committing another form of seditious conspiracy: conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”
Because “seditious conspiracy” perfectly describes the crimes committed on January 6, why not make the straightforward charge that Trump was a party to this conspiracy? Someone can be considered part of a criminal conspiracy even if they did not know “all the details of the crime or all of the members of the conspiracy,” as long as they shared the general objective of the conspiracy, which could be stated in this case as simply as: to use force or the threat of force to prevent Congress and the vice president from counting and announcing certified electoral votes for president on the date and at the time set by law.
Charging Trump with being a party to seditious conspiracy eliminates any First Amendment arguments that he was merely making a speech to a public gathering or expressing his opinion that the election results were tainted by fraud. If sufficient evidence is presented to the Senate that Trump did far more than give that speech—for example, he had personally promoted the gathering by social media, going so far as to direct his followers to “Be there, will be wild!”—then bipartisan support for conviction should be possible.
But Trump’s role in promoting the Capitol riot is not the only recent action that could justify impeachment. It’s not only possible but strategic to include multiple additional charges, so that there might be a greater chance of winning significant GOP backing for some counts, even if not for all of them.
Two additional articles of impeachment could be grounded on the federal law making it a crime to use “official authority for the purpose of interfering with, or affecting, the election for the office of President.” Trump’s statements in the past week about (and implicitly to) Vice President Mike Pence as well as his documented conversations with Georgia election officials are examples of such abuse of authority. Even though the statute is written to apply to persons employed by the United States in an “administrative position,” for purposes of impeachment it surely makes sense to hold the president to the same standard of legality as would apply to his subordinates.
On January 5, Trump falsely stated via Twitter that “The Vice President has the power to reject fraudulently chosen electors.” He later that day gave a public speech in which he stated “I hope Mike Pence comes through for us” and if he “does not come through, I won’t like him quite as much.” And the next morning, he tweeted more of the same.
Trump’s actions forced Pence to issue a letter to Congress on January 6, stating correctly that “my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted.” Trump immediately responded by posting on Twitter: “Mike Pence didn’t have the courage to do what should have been done to protect our Country.” By this conduct, the president clearly used his official authority for the purpose of attempting to interfere with or affect the vice president’s constitutional duties in relation to the presidential election.
On January 2, Trump, acting through White House Chief of Staff Mark Meadows, initiated a telephone call to the Secretary of State of Georgia, Brad Raffensperger. The president told Raffensperger to “find 11,780 votes,” which was one more vote than the margin of victory for Joe Biden in Georgia. Trump proposed that this change in the legally certified electoral vote tally in Georgia be made by “saying, you know, that you’ve recalculated.”
And just yesterday, the Washington Post reported that Trump had earlier pressured the state’s lead elections investigator to “find the fraud” and, by doing so, become “a national hero.” By this conduct in both instances, in addition to potentially breaking Georgia state law, Trump again used his official authority for the purpose of interfering with or affecting the presidential election.
The most critical reason for sending articles of impeachment to the Senate is to provide an insurance policy against further grave misconduct during the remaining days of Trump’s presidency. Even if the Republican-controlled Senate is not currently inclined to consider reconvening for a trial in the next 10 days, the option for swift removal of the president would be available if a new crisis developed. And the Senate need only convict on one charge to do so.
Finally, there are good arguments that the Senate could render judgment on articles of impeachment even after Biden’s inauguration by exercising its constitutional authority to disqualify Trump from ever again holding “any Office of honor, Trust, or Profit under the United States.” If the new Democratic majority wants to initiate a searching inquiry into Trump’s involvement in the Capitol riot, an article framed in terms of seditious conspiracy would sufficiently support such action.
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