Impeachment

Floor Speech

BREAK IN TRANSCRIPT

Mr. REED. Trump be printed in the Record.

Reed in the Impeachment Trial of President Donald John Trump I. FINDINGS

On January 13, 2021, the United States House of Representatives passed House Resolution 24,\1\ ``Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.''

Based on the evidence in the record, the arguments of the House Impeachment Managers, and the arguments of President's Counsel, I conclude as follows: Mr. Trump has violated his oath to take care that the laws be faithfully executed and has acted in a manner that is fundamentally incompatible with the constitutional order. The House Impeachment Managers have proven that Mr. Trump's incitement of insurrection amounts to the constitutional standard of ``high Crimes and Misdemeanors'' for which the remedy of conviction and disqualification is warranted. II. THE CONSTITUTIONAL GROUNDS FOR IMPEACHMENT

``The Senate shall have the sole Power to try all Impeachments.'' \2\ With these few words, the Framers of the Constitution entrusted the Senate with the most awesome power within a democratic society: whether to remove an impeached president from office. A. High Crimes and Misdemeanors

The Constitution states, ``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.'' \3\

``Treason'' and ``Bribery'' are foundational impeachable offenses. No more heinous example of an offense against the constitutional order exists than betrayal of the nation to an enemy or betrayal of duty for personal enrichment. A President commits treason when he levies war against the United States or gives comfort or aid to its enemies.\4\ As the House Judiciary Committee explained, a President engages in impeachable bribery when he ``offers, solicits, or accepts something of personal value to influence his own official actions.'' \5\

In interpreting ``high Crimes and Misdemeanors,'' we must not only look to the Federalist Papers and the records of the Constitutional Convention, but also to the contemporary and foundational writings on Impeachment available to the Framers.

Sir William Blackstone, whose influential Commentaries on the Laws of England were published from 1765-1770, discussed a classification of crimes he termed ``public wrongs, or crimes and misdemeanors'' that he defined as breaches of the public duty an individual owed to their entire community.\6\ Blackstone viewed treason, murder, and robbery as ``public wrongs,'' not only because they cause injury to individuals but also because they ``strike at the very being of society. '' \7\

Richard Wooddeson, a legal scholar who began giving lectures on English law in 1777, defined impeachable offenses as misdeeds that fail to clearly fall under the jurisdiction of ordinary tribunals. These wrongs were ``abuse[s] of high offices of trust'' that damaged the commonwealth.\8\

Much the same as Blackstone and Wooddeson, Alexander Hamilton included the dual components of abuse of public trust and national harm in his definition of impeachable crimes and misdemeanors. In Federalist Paper No. 65, Hamilton defined an impeachable offense as ``those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.'' \9\ B. The Constitutional Debates

Adding impressive support to these consistent views of the meaning of the constitutional term, ``high Crimes and Misdemeanors,'' is the history of the deliberations at the Constitutional Convention.

The convention delegates considered limiting Impeachment to treason and bribery. However, they concluded that these enumerated offenses alone could not anticipate every manner of profound misconduct that a future president might engage in.\10\ George Mason, a delegate from Virginia, declared that ``high crimes and misdemeanors'' would be an apt way to further capture ``great and dangerous offences'' or ``[a]ttempts to subvert the Constitution.'' \11\

This wording would also set the necessarily high threshold for Impeachment that would be proportional to the severe punishment of removing an elected official and disqualification from holding future public office. Further insight is provided by James Iredell, a delegate to the North Carolina Convention that ratified the Constitution, who later served as a Justice of the United States Supreme Court. During the Convention debates, Iredell stated:

The power of impeachment is given by this Constitution, to bring great offenders to punishment . . . This power is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community, and the objects of it may be such as cannot be easily reached by an ordinary tribunal.\12\

Iredell's understanding sustains the view that an impeachable offense must cause ``great injury to the community.'' Private wrongdoing, without a significant, adverse effect upon the nation, cannot constitute an impeachable offense. James Wilson, a delegate to the Federal Constitutional Convention and, like Iredell, later a Supreme Court Justice, wrote that Impeachments are ``proceedings of a political nature . . . confined to political characters, to political crimes and misdemeanors, and to political punishments.'' \13\

Later commentators expressed similar views. In 1833, Justice Joseph Story quoted favorably from the scholarship of William Rawle, who concluded that the ``legitimate causes of impeachment . . . can have reference only to public character, and official duty . . . In general, those offenses, which may be committed equally by a private person, as a public officer, are not the subject of impeachment.'' \14\

This line of reasoning is buttressed by the careful and thoughtful work of the House of Representatives during the Watergate proceedings. The Democratic staff of the House Judiciary Committee concluded that, ``[b]ecause impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.'' \15\

The deliberations at the Constitutional Convention also demonstrate a conscious movement to narrow the terminology as a means of raising the threshold for the Impeachment process to require an offense against the State.

Early in the debate on the issue of presidential Impeachment in July of 1787, it was suggested that Impeachment and removal could be founded on a showing of ``malpractice,'' ``neglect of duty,'' or ``corruption.'' \16\ By September of 1787, the issue of presidential Impeachment had been referred to the Committee of Eleven, which was created to resolve the most contentious issues.

The Committee of Eleven considered whether the grounds for Impeachment should be ``treason or bribery.'' \17\ This was significantly more restricted than the amorphous standard of ``malpractice,'' too restricted, in fact, for some delegates. George Mason objected and suggested that ``maladministration'' be added to ``treason and bribery.'' \18\ James Madison opposed this suggestion as being ``equivalent to a tenure during pleasure of the Senate.'' \19\ Mason responded by further refining his suggestion and offered the term ``other high crimes and misdemeanors against the State.'' \20\ The Mason language was a clear reference to the English legal history of Impeachment. Mason's proposal explicitly narrowed these offenses to those ``against the State.'' The Convention itself further clarified the standard by replacing ``State'' with the ``United States.'' \21\

At the conclusion of the substantive deliberations on the constitutional standard of Impeachment, it was obvious that only serious offenses against the governmental system would justify Impeachment and subsequent removal from office. However, the Committee of Style applied the final stylistic touches to the Constitution. This Committee had no authority to alter the meaning of the carefully debated language and could only impose a stylistic consistency through, among other things, the elimination of redundancy. In its zeal to streamline the text, the words ``against the United States'' were eliminated as unnecessary to the meaning of the passage.\22\

The weight of both authoritative commentary and the history of the Constitutional Convention combines to provide convincing proof that the Impeachment process was reserved for serious breaches of the constitutional order that threaten the country in a direct and immediate manner. C. An Impeachable Offense is Not Limited to Criminal Liability or a Defined Offense

Article I, Section 3 of the United States Constitution provides that ``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.'' \23\ As Delegate James Wilson wrote, ``impeachments, and offenses and offenders impeachable [do not come] within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects: for this reason, the trial and punishment of an offense on an impeachment, is no bar to a trial and punishment of the same offence at common law.'' \24\ The independence of the Impeachment process from the prosecution of crimes underscores the function of Impeachment as a means to remove a president from office, not only because of criminal behavior, but because the president poses a threat to the constitutional order. Criminal behavior is not irrelevant to an Impeachment, but it only becomes decisive if that behavior imperils the balance of powers established in the Constitution.

The assertion that an impeachable offense must be predicated on a criminal act goes against the well- established consensus of the legal community. For example, Mr. Trump's former Attorney General, William Barr, wrote in a 2018 memo to the Department of Justice (DOJ) when he was still in private practice, that the President ``is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process [which] means that the president is not the judge in his own cause.'' \25\ As Mr. Barr makes clear, Impeachment does not need to be based on a crime.

Furthermore, any assertion that an impeachable offense must involve the violation of an ``already known or established'' law, even if not criminal, is not supported by the constitutional record. In advocating for the inclusion of Impeachment at the Constitutional Convention, James Madison made the case that the country must be protected against any number of abuses that a president could engage in and which might cause permanent damage to the country. Madison wrote that:

[It was] indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security[. . .] He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.\26\

Confining Impeachment to criminal or even codified offenses goes against the mainstream consensus on the meaning of ``high Crimes and Misdemeanors'' and would fail to capture the universe of harms to the constitutional order in which a President could engage. D. Conclusion

Authoritative commentary on, together with the structure of, the Constitution makes it clear that the term, ``other high Crimes and Misdemeanors,'' encompasses conduct that involves the president in the impermissible exercise of the powers of his office to upset the constitutional order. Moreover, since the essence of Impeachment is removal from office, rather than punishment for offenses, there is a strong inference that the improper conduct must represent a continuing threat to the American people and the Constitution. IV. STANDARD OF PROOF

In an Impeachment trial, each Senator has the obligation to establish the burden of proof he or she deems proper.\27\ The Founding Fathers believed maximum discretion was critical for Senators confronting the gravest of constitutional choices.\28\ Differentiating Impeachment from criminal trials, Alexander Hamilton argued, in Federalist Paper No. 65, that Impeachments ``can never be tied down by such strict rules . . . as in common cases serve to limit the discretion of courts in favor of personal security.'' \29\ In this regard, Hamilton further distinguished Impeachment proceedings from a criminal trial by stressing that an impeached official would be subject to the established rules of criminal prosecution after Impeachment.\30\

However, what exact constitutional standard should be used remains debatable. Practical concerns related to utilizing the Impeachment power should be considered when determining the standard of proof required. Too low of a standard may lead to removal, even if significant doubts exist. A ``. . . high `criminal' standard of proof could mean, in practice, that a man could remain president whom every member of the Senate believed to be guilty of corruption, just because his guilt was not shown `beyond a reasonable doubt.' '' \31\

When uncertain about the standard of proof to apply, it is worth reviewing the writings of eminent scholars. In doing so, I have found a closer approximation to what the standard should be in many Impeachment trials as compared to those used in general legal practice: `` `[o]verwhelming preponderance of the evidence' . . .'' \32\ Yet, I believe that the severity of removing a president of the United States warrants an even higher bar. As such, a definition slightly modified, but modeled on that proposed standard, is more applicable: overwhelmingly clear and convincing evidence. This standard more closely comports with historical analysis of the Founders' desire to separate criminal law and Impeachment and the arguments made by scholars, while reflecting the serious constitutional harms alleged in the Article of Impeachment before the Senate. V. CONSTITUTIONALITY OF IMPEACHMENT TRIAL

The President's Counsel has argued that an Impeachment trial conducted after a president leaves office is unconstitutional. Specifically, they write, in their trial brief, ``It is denied that the quoted provision [Article I, Section 4] currently applies to the 45th President of the United States since he is no longer `President'.'' \33\ The President's Counsel hinge their argument on the wording of Article II, Section 4, which reads, ``The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'' The President's Counsel argue that since Mr. Trump is no longer the president,

``[T]he clause `shall be removed from Office on Impeachment for . . .' is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution . . . Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, `disqualification' to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.'' \34\

Such logic ignores the historical context in which the Impeachment power was drafted, willfully misinterprets the language of the Constitution, rejects the precedent set by previous Senates, and promotes the dangerous concept of a ``January Exception.'' \35\

Impeachment was not a revolutionary concept at the time the U.S. Constitution was drafted. The concept had long been part of English political custom, which framed much of the Founder's understanding of government.\36\ Indeed, Alexander Hamilton explicitly stated in Federalist No. 65 that the Impeachment power was borrowed from English political history.\37\ Thus, we can understand the bounds of the Impeachment power from precedents set in English political history. Two examples from the 18th century are illustrative of the impeachability of former officials. First, ``[i]n 1725, former Lord Chancellor Macclesfield was impeached and convicted for acts of bribery committed during his tenure in office.'' \38\ Second, at the time of the Philadelphia Convention, Parliament was preparing to conduct an Impeachment trial against Warren Hastings, the former Governor General of Bengal. These proceedings commenced after Hastings had retired from his office. ``The Framers were acutely aware of the Hastings proceeding, with George Mason raising it as an example during debate on the Impeachment clauses.'' \39\ If the Framers had misgivings about Impeachment of former officials, a concept that would have been on the public mind given Mr. Hastings' impending Impeachment trial, surely they would have clarified the wording of the Impeachment power in the U.S. Constitution.

The practice of impeaching former officers was also common in the early state governments. ``Between 1776 and 1787, 10 of the newly independent states adopted constitutions that included impeachment provisions. Five specifically permitted late Impeachment; no state explicitly forbade it.'' \40\ Moreover, some state constitutions only allowed the Impeachment of former officials, meaning that future disqualification from office was central to the very purpose of Impeachment.\41\ For example, Thomas Jefferson underwent an Impeachment inquiry in 1781 after his tenure as governor ended.\42\ What purpose could such a late inquiry have except to attempt to disqualify a former official from holding office again in the future? The influence of the early state constitutions on the drafting of the U.S. Constitution is widely accepted. This influence no doubt extended to the Framer's understanding of the Impeachment power as including former officials.\43\

Indeed, the language of the U.S. Constitution proves this out. Article I, Section 3, Clause 6 states, ``The Senate shall have the sole Power to try all Impeachments.'' That is, the Senate has the power to conduct a trial for any Impeachment commenced by the House of Representatives without qualification regarding its timing. The House impeached Mr. Trump, and it is now in the constitutional power of the Senate to conduct an Impeachment trial. Article I further outlines two possible penalties in any Impeachment trial: removal and disqualification. The Senate cannot exceed these penalties, nor are these penalties necessarily linked by the language of the text. The Senate has the power to remove a president without also disqualifying him or her from future office. Likewise, legal scholars assert that disqualification from office need not follow removal from office.\44\ Such a reading would neuter the ability of the Senate to disqualify officials from future office upon their resignation. Hence, an official accused of crimes against the political order could simply resign to avoid punishment and potentially retake office in the future. The Framers understood that the power of a demagogic president extends beyond his tenure of office. The disqualification component of the Impeachment power is the constitutional method for addressing this dangerous potentiality, for it establishes ``a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country.'' \45\

In accordance with English political history, the early state constitutions, and the clear language of the U.S. Constitution, the Senate has repeatedly asserted its right to conduct an Impeachment trial of former government officials. The first Impeachment trial concerned Senator William Blount of Tennessee on the charge of conspiracy. After the Senate expelled Blount from the body in July of 1797, the House brought five articles of Impeachment against the former senator in January of 1798 with the intention of disqualifying him from holding office in the future.\46\ Most scholars agree that the Senate dismissed the case on the grounds that the Impeachment power does not extend to Members of Congress.\47\ The Senate did not, however, dismiss the case on the basis that Blount was a former official.\48\ The Senate once again asserted its right to conduct an Impeachment trial of a former official in the 1876 case of ex-Secretary of War William Belknap. The House voted to impeach Belknap after he resigned. The Senate then debated the constitutionality of late impeachability before asserting in a 37-29 vote that it had the power to try an ex- officer.\49\ Though Belknap was not ultimately convicted, the Senate had decided that it had the power to convict and disqualify an ex-official. Congress acted once more in the 1926 case of federal judge George English. The House of Representatives chose not to further pursue Impeachment after English's resignation, but the House Managers declared ``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].'' \50\ Several Senators similarly declared the jurisdiction of the Senate in the case of Judge English.\51\ As these cases demonstrate, the Senate has repeatedly declared its late-Impeachment powers, though it has rarely chosen to purse Impeachment.\52\

Finally, the denial of late impeachability promotes the dangerous and unconstitutional idea of a ``January Exception.'' One of the central concerns of the Framers was the diffusion of power across branches in a system of checks and balances to prevent any one branch, but particularly the executive, from gaining too much power. Impeachment is the last line of defense created to hold officials accountable for their abuse of those powers. Hence the time between election and inauguration is not a consequence-free period for an outgoing president. A president who commits an impeachable offense on the night before his term ends is still accountable for those actions when he leaves the Oval Office. After his term as president, John Quincy Adams proclaimed, ``I hold myself, so long as I have the breath of life in my body, amendable to impeachment by [the] House for everything I did during the time I held any public office.'' \53\ The Framers of the Constitution did not intend to grant Mr. Trump a January reprieve from accountability. He must be held accountable for his actions during the last weeks of his presidency. VI. DUE PROCESS

The President's Counsel assert that the Impeachment inquiry is defective because of a lack of due process protections for Mr. Trump. However, the Constitution does not provide any guidance about what procedures are proscribed in an Impeachment trial. Article II, Section 3 states, ``The Senate shall have the sole power to try all Impeachments.'' \54\ Alexander Hamilton provides context to this in Federalist Paper No. 65, saying that Impeachments ``can never be tied down by such strict rules . . . as in common cases serve to limit the discretion of courts in favor of personal security.'' \55\

Specifically, President's Counsel asserts that the Speaker of the House purposefully held onto the Article of Impeachment, passed by the House of Representatives, in order to ensure that Mr. Trump's term would end before a Senate trial commenced. However, at the time H. Res. 24 passed, the Senate was in recess and not scheduled to return until January 19th. The Senate Minority Leader urged the Senate Majority Leader to bring the Senate back into session immediately in order to receive the Article of Impeachment. However, the Senate Majority Leader rejected this request, meaning that even if the House of Representatives had tried to send the Article to the Senate immediately after passage, it would not have been considered until the Senate was back in session.\56\

President's Counsel also assert that the House of Representatives did not provide proper due process because it did not hold hearings on the Article of Impeachment. Manager Lieu analogized the present facts to a case where crimes are committed in plain view, and prosecutors do not have to spend a prolonged time investigating before pressing charges.\57\ In this case, the events in question--the ``Save America'' rally, the Electoral Certification, and the ensuing insurrection--were widely broadcast on television and in news publications. Those who took part in the attack also documented their participation over social media including on Twitter, Instagram, and YouTube.\58\ In the aftermath of the insurrection, participants were arrested and indicted for their unlawful and violent actions, and their charging documents were available to the public.\59\

In addition, President's Counsel, throughout this case, has conflated the requirements of an Impeachment proceeding with that of a criminal case, where the Due Process Clause of the Fifth Amendment applies. These claims are spurious at best. As constitutional scholar Michael Gerhardt stated in regards to Mr. Trump first Impeachment, ``First, the [Due Process] clause does not apply because none of the interests protected by the due process clause are being denied here--the sanctions are removal and disqualification but not the deprivation of life, liberty, or property, which the clause protects. Second, even if due process applies, it has been satisfied here: The minimal requirements of due process are an impartial decision-maker and notice. The president has had plenty of notice about the impeachment effort, and the Constitution designates senators as the impartial decision- makers.'' \60\

``The Supreme Court has explained . . . that due process is not a `technical conception with a fixed content unrelated to time, place, and circumstances.' Instead, the concept is `flexible and calls for such procedural protections as the particular situation demands.' '' \61\ In an Impeachment, the obligation of the Senate is to accord the president, as the accused, the right to conduct his defense fairly, while respecting the House of Representative's exclusive constitutional prerogative to bring Articles of Impeachment. At the core of the Senate's task is the fundamental understanding that our system of laws recognizes the rights of defendants and the responsibilities of the prosecution to prove its case.

Based on the above analysis, I find that there is overwhelmingly clear and convincing evidence that Mr. Trump was afforded due process in this Impeachment proceeding. VII. INCITEMENT OF INSURRECTION

House Resolution 24 alleges that, in the conduct of his office, Mr. Trump incited an insurrection, in violation of his constitutional duty to take care that the laws be faithfully executed, and in subversion of the constitutional order. I find that there is overwhelmingly clear and convincing evidence that Mr. Trump committed impeachable conduct. As I will further explain, Mr. Trump must be convicted and disqualified from holding office for the conduct described in H. Res. 24. A. Legal Standards for Incitement

As explained in Section III, Congress is bound neither by civil nor criminal law in determining whether an offense meets the standard of ``high Crimes or Misdemeanors.'' However, existing legal frameworks for ``incitement'' are helpful for analyzing and putting Mr. Trump's words and conduct into context.

Black's Law Dictionary defines incitement generally as ``the act or an instance of provoking, urging on, or stirring up.'' \62\ Specifically in regards to criminal law, Black's Law Dictionary defines incitement as ``the act of persuading another person to commit a crime.'' \63\

A group of constitutional law scholars explained that, for the purposes of Impeachment, a determination of whether a president's speech or conduct is protected must primarily take into account whether a president's words are consistent with the Constitution \64\ and the oath to ``faithfully execute the office of President of the United States, and . . . preserve, protect and defend the Constitution of the United States.'' \65\ For example, if a president said ``I no longer promise to support and defend the Constitution of the United States'' or ``I no longer recognize Congress as a co-equal branch of government,'' these statements would certainly be inherently antithetical to the constitutional order that the president swore to uphold. While these statements may be lawful and protected by the Constitution in another context, they would certainly be impeachable.

Turning to the definition of ``insurrection'' itself, the Corpus Juris Secundum defines it as ``the act of rising in open resistance against established authority or government, or as any open and active opposition of a number of persons to the execution of the laws of the United States of so formidable a character as to deny, for the time being, the authority of the government, even though not accompanied by bloodshed and not of sufficient magnitude to render success probable.'' \66\

Based on these sources, I will examine the following questions, in order to determine whether Mr. Trump incited his supporters to commit insurrection,

(1) What was Mr. Trump's pattern of speech or conduct prior to the January 6th ``Save America'' rally?

(2) Did Mr. Trump foreseeably or recklessly solicit his supporters to believe his election lies, and know that his supporters would take action based on these lies?

(3) Did Mr. Trump's speech or conduct drive his supporters to commit unlawful or violent acts on January 6th?

(4) What steps did Mr. Trump take once the rioters had breached the Capitol? B. Leading Up to January 6, 2021, Mr. Trump Propagated a False Narrative that the Election Had Been Stolen and Supported Violent Rhetoric

To determine whether Mr. Trump engaged in incitement, it is instructive to look at a timeline of Mr. Trump's statements, direct acts, and actions taken at his behest, leading up to January 6th.

a. Statements and Conduct Regarding Voter Fraud Before the 2020 Election

Even before the November 2020 election, Mr. Trump gave credence to the idea that mass voter fraud would be inevitable, and the only way he would lose was if the election were stolen. For example, in July, Mr. Trump tweeted ``With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history.'' \67\ At an August rally in Wisconsin, Trump said ``The only way we're going to lose this election is if the election is rigged, remember that . . . It's the only way we're going to lose this election. So we have to be very careful.'' \68\ In September, he told reporters, from the White House lawn, ``I'm not sure that it [the election] can be [honest], I don't know that it can be with this whole situation, unsolicited ballots, they're unsolicited, millions being sent to everybody.'' \69\

Before the election took place, Mr. Trump also refused to say whether he would accept the election results. In a July interview with Chris Wallace, when asked directly whether he would accept the results of the election, Trump said ``Look, you--I have to see. No, I'm not going to just say yes.'' \70\ In September, when asked by a reporter if he would commit to a peaceful transfer of power, Mr. Trump implied that he would not, saying ``Get rid of the ballots and you'll have a very peaceful--there won't be a transfer, frankly. There will be a continuation.'' In the same month, when asked by a reporter whether the election results would be legitimate only if he won, Mr. Trump did not give a direct answer, saying, ``So we have to be very careful with the ballots. The ballots--that's a whole big scam.'' \71\

b. Statements and Conduct Regarding Voter Fraud After 2020 Election

Once the 2020 election was over, Mr. Trump made it clear that he would concede under no circumstances, and continued his full-court press urging Americans not to accept the election results. In a statement after Mr. Biden was projected the winner, Mr. Trump said, ``The simple fact is this election is far from over . . . Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated. The American People are entitled to an honest election: that means counting all legal ballots, and not counting any illegal ballots. This is the only way to ensure the public has full confidence in our election.'' \72\

Mr. Trump escalated his attack on the election results by posting a speech on December 2nd, which he taped from behind the presidential lectern and characterized as potentially ``the most important speech I've ever made.'' \73\ Over the course of 46 minutes, Mr. Trump repeated the same baseless claims of voter fraud, and refused to acknowledge his loss. Mr. Trump said the nation's election system was ``under coordinated assault and siege'' and declared that it was ``statistically impossible'' for him to have lost to Mr. Biden.\74\ His overall claim was that, ``This election is about great voter fraud, fraud that has never been seen like this before.'' \75\

The day after Christmas 2020, Mr. Trump sought to escalate his narrative that there was a mass effort to deprive him of a second term. He sent out a series of tweets attacking executive branch agencies, the federal judiciary, and Senate Republicans, claiming that they had not done enough to prevent voter fraud. He tweeted that the Supreme Court ``has been totally incompetent and weak on the massive Election Fraud that took place.'' He also tweeted that ``The `Justice' Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud.'' Furthermore, he leveled the claim that ``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.'' \76\

As late as January 4th, Mr. Trump held a rally before the Georgia Senate runoff saying, ``When you win in a landslide and they steal it and it's rigged, it's not acceptable. Not acceptable.'' The crowd chanted, ``Fight for Trump!'' and Mr. Trump responded, ``They're not going to take the White House. We're going to fight like hell.'' \77\

In addition to his dishonest rhetoric on election fraud, Mr. Trump took concrete steps to bend reality to match what he wanted. As I will explain in more detail in Section VIII, Mr. Trump used any means necessary to cajole, intimidate, and threaten individuals at all levels of government to use their authority to reject, and in some cases alter, the electoral votes for Mr. Biden.\78\

It is important to note that Mr. Trump forcefully pushed these lies, no matter how divorced from reality they became. In the weeks after the election, it became painstakingly clear that Mr. Biden was the winner, as states moved to certify his results. In states where the Trump campaign asked for election audits, subsequent recounts provided no compelling evidence that Mr. Trump had won by a landslide.\79\ He and his allies filed and lost over 60 lawsuits alleging voting irregularities in state and federal court, including the Supreme Court.\80\ His Attorney General attested that the Justice Department discovered no voting fraud ``on a scale that could have effected a different outcome in the election.'' \81\ Top election officials put out a statement saying, ``The November 3rd election was the most secure in American history . . . There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.'' \82\ The day before the Capitol insurrection, even Vice President Mike Pence told Mr. Trump that he had a constitutional duty to certify the true winner of the election, which was Mr. Biden.\83\

Yet, throughout all of this and despite undeniable evidence to the contrary, Mr. Trump doggedly claimed that he had won the election, and that his supporters should help vindicate him. He lied to the American people, and did so knowingly and deliberately.

c. Mr. Trump Invoked Violent Means to Further His Re- Election

Leading up to January 6th, Mr. Trump supported--either tacitly or outright--the use of violent and menacing tactics by his supporters. For example, in the spring of 2020, Mr. Trump embraced the backlash against COVID-19 policies to aid his re-election. Following armed protests over stay-at-home orders, he tweeted ``LIBERATE MINNESOTA!'', ``LIBERATE MICHIGAN!'' and ``LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!'' \84\ During some of the anti- lockdown protests, armed groups attempted to derail the legislative proceedings at statehouses in Michigan, Idaho, and Oregon.\85\ These disruptive and aggressive methods were in essence a prelude to what happened during the assault on the Capitol.

This anger boiled over when six men plotted to kidnap Michigan Governor Gretchen Whitmer because they were angry about the state's coronavirus policies.\86\ When the Federal Bureau of Investigation foiled the plot, Mr. Trump added fuel to the fire, and attacked Governor Whitmer over Twitter. He tweeted, ``Governor Whitmer of Michigan has done a terrible job. She locked down her state for everyone, except her husband's boating activities . . . My Justice Department and Federal Law Enforcement announced . . . today that they foiled a dangerous plot against the Governor of Michigan. Rather than say thank you, she calls me a White Supremacist-- while Biden and Democrats refuse to condemn Antifa, Anarchists, Looters and Mobs that burn down Democrat run cities.'' \87\

Furthermore, in November 2020, Mr. Trump embraced a group of his followers who sought to intimidate supporters of his political opponent. He posted a video of his supporters in different cars surrounding a Biden campaign bus in Texas. Mr. Trump cheered this kind of intimidation, tweeting, ``I LOVE TEXAS'' and ``In my opinion, these patriots did nothing wrong.'' \88\ At a rally in Michigan, Mr. Trump even praised his supporters' actions saying, ``Did you see the way our people, they were, ya know, protecting this bus . . . because they're nice . . . They had hundreds of cars. Trump! Trump! Trump and the American flag.'' \89\

After Mr. Biden was declared the winner, Mr. Trump focused his ire in the following weeks on changing the election results in Georgia. Mr. Trump's relentless claims of voter fraud in Georgia were followed by a wave of death threats against state election officials. Gabriel Sterling, an election official in Georgia, pleaded with Mr. Trump to denounce the threats of violence, clearly articulating the risks of failing to do so. Sterling said, ``Mr. President, it looks like you likely lost the state of Georgia. We're investigating. There's always a possibility, I get it, and you have the rights to go through the courts. What you don't have the ability to do--and you need to step up and say this--is 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. And it's not right.'' \90\

d. Mr. Trump Supported Extremist Groups

Mr. Trump made statements supporting, or failing to condemn members of extremist groups, many of whom came together to storm the Capitol on January 6th.

Famously, during the first presidential debate on September 29th, when asked to condemn white supremacist groups, like the Proud Boys, Trump refused. Instead, he announced, ``Proud Boys--stand back and stand by.'' \91\ The Proud Boys group took this as an explicit endorsement of their violent tactics and ideology.\92\ A known social media account associated with the Proud Boys made ``Stand back and stand by'' its new slogan, and Proud Boys leader Joe Biggs likewise posted that he was ``standing by.'' \93\

Mr. Trump also made statements and used social media to pander to Q'Anon, a conspiracy movement, including by retweeting messages from Q'Anon followers on Twitter hundreds of times before his account was suspended.\94\ When pressed on his views on Q'Anon, Mr. Trump appeared to defend the movement. On August 19th, Mr. Trump tacitly endorsed QAnon at a press conference, saying, ``I don't know much about the movement, other than I understand they like me very much. Which I appreciate.'' \95\ In a town hall on October 15th, Mr. Trump praised Q'Anon members again, this time saying, ``Let me just--let me just tell you, what I do hear about it, is they are very strongly against pedophilia. And I agree with that. I mean, I do agree with that. And I agree with it very strongly.'' \96\

e. Mr. Trump Organized the January 6th ``Save America'' Rally

In the days leading up to January 6th, Mr. Trump sent out numerous tweets promoting the ``Save America Rally'' and gave his supporters specific instructions on when and where to attend. On December 19th, he tweeted, ``Big protest in D.C. on January 6th . . . Be there, will be wild!'' \97\ On December 27, he tweeted ``See you in Washington, DC, on January 6th. Don't miss it. Information to follow.'' \98\ On January 1, 2021, he tweeted, ``The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!'' \99\ The day before, he posted, ``I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early--doors open at 7AM Eastern. BIG CROWDS!'' \100\

Mr. Trump not only knew, but actively coordinated the January 6th rally in order to disrupt the congressional proceedings that day. First, Mr. Trump chose to convene a rally on the same day as the electoral certification, and then explicitly urged his supporters to attend what he predicted would be a ``wild'' and ``historic'' day. Manager Plaskett underscored that it was only after Mr. Trump chose that day that the Pro-Trump group, Women for America First, obtained a permit for what became the ``Save America'' rally at the Ellipse.\101\ The day after Women for America First announced the rally, Mr. Trump reposted their invitation and replied ``I will be there Historic day!'' \102\ Manager Plaskett stated that the Trump campaign even ``became directly involved with the planning of the event, including the speaking line-up and even the music to be played and brought in the same people who spoke at the second Million MAGA rally to help.'' \103\ Notably, Vice President Pence's sister-in-law is on the advisory board of Women for Trump, which has ties to Women for America First--thus blurring the lines between the Trump administration and the organizers of the January 6th rally.\104\

Manager Plaskett also emphasized that Mr. Trump's top advisors and the Trump communications team were actively monitoring posts from mainstream websites such as Twitter and Facebook, as well as pro-Trump message boards on Reddit and 4Chan.\105\ Posters wrote about preparations for the rally in Washington, D.C. to take their election back, by violent means if necessary, on these message boards. His supporters posted hundreds of messages outlining their plans for January 6th. They discussed how to physically breach the Capitol grounds, which individuals to target once inside, and which weapons and tactical gear to take with them.\106\

In this section, I outlined Mr. Trump's words and actions leading up to the attack on the Capitol. I will now move onto examining whether Mr. Trump foreseeably or recklessly persuaded his supporters into believing his voter fraud lies and taking action at his behest to prevent what he considered a stolen election. C. Mr. Trump Foreseeably and Recklessly Persuaded His Supporters That the Election Was Stolen

Mr. Trump spread lies, conspiracy theories, and incendiary rhetoric before and after the 2020 election. He did so with the understanding that it would inflame his supporters and enlist their aid in helping him disrupt the electoral process. The effect was to foreseeably and recklessly goad his supporters into action. We know this because there is evidence that his supporters were buying into his delegitimizing the election, his encouragement of taking action to overturn the electoral process, and his support for violent tactics.

Mr. Trump's promotion of themes such as ``Stop the Count'' and ``Stop the Steal'' served to gin up his supporters. Manager Swalwell pointed out that Mr. Trump spent ``millions of dollars to amplify that lie . . . [I]n mid-December, President Trump announced the release of ads, including ones entitled `'The Evidence is Overwhelming--FRAUD!'' and ``STOP THE STEAL.'' He spent $50 million from his legal defense fund on these ads to stop the steal and amplify his message. They were released nationally, played in video ads, online advertising, and targeted text messages.'' \107\

His supporters took these ideas literally--angrily converging upon vote centers on November 5th to protest the continued counting of ballots after Election Day.\108\ Trump supporters formed ``Stop the Steal'' online groups, which became a hotbed for sharing false claims and misleading videos about voter fraud. In November and December, his supporters held ``Stop the Steal'' rallies around the country. It was widely publicized that, at some of these events, participants were armed and belligerent. Notably, on December 12th, they staged the Second Million MAGA March in Washington, D.C., which resulted in violent clashes between Proud Boy members and counter protestors.\109\ Mr. Trump promoted these rallies on his social media, and, in some instances, heaped praise on his supporters for fighting.\110\

The evidence showed that Mr. Trump's promotion of the ``Save America'' rally succeeded in convincing his supporters to show up at the time and place he named on January 6th. Many of Mr. Trump's supporters said that they felt summoned to Washington, D.C. to take retaliatory action. In a Parler post before the insurrection, a supporter shared one of Mr. Trump's tweets and wrote, ``This isn't a joke, this is where and when we make our stand. #January6th, Washington DC. Be there, no matter what. Nothing is more important.'' \111\ In a statement taped on a livestream video taken during the insurrection, a man is heard saying, ``Our president wants us here We wait and take orders from our president.'' \112\ In court papers and interviews given after the insurrection, pro-Trump rioters said they joined the march because the president encouraged them to do so.\113\

I find overwhelmingly clear and convincing evidence that Mr. Trump and his allies foreseeably and recklessly solicited his supporters to help him overturn the election results-- including most prominently by attending the January 6th rally to disrupt the Electoral College certification. D. Mr. Trump's Supporters Committed Unlawful Acts of Insurrection on January 6th

a. Trump Speaks at the ``Save America'' Rally

After months of fomenting anger over his false claims of election fraud, Mr. Trump gathered his supporters at the ``Save America'' rally on January 6th. Once there, Mr. Trump told the crowd ``We're going to walk down to the Capitol because you'll never take back our country with weakness. You have to show strength and you have to be strong.'' \114\ This was a continuation of a pattern of violent rhetoric by Mr. Trump leading up to the events at the Capitol. For example, Mr. Trump had previously told followers to ``Fight like Hell'' at rallies. He repeated this language at the rally at noon on January 6th stating, ``[W]e fight. We fight like hell.'' \115\ His supporters got the message. By 12:53pm, a large group of Trump supporters approached a fenced off area in front of the Capitol and began to engage with Capitol police officers, many of whom were armed only with mace and their side arms.\116\

b. The Insurrection Begins

The crowd pushed past the barricade, knocking down police officers in the process, in an attempt to get closer to the building. Within minutes, protestors began swarming other entrances of the Capitol.\117\ Inside the Capitol, Vice President Pence presided over the joint session of Congress. Contrary to the wishes of Mr. Trump, Vice President Pence began the process of certifying the election results. Outside the Capitol, the crowd of protestors grew more violent. ``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.' '' \118\ Law enforcement officers were attacked with baseball bats, crutches, hockey sticks, flag poles, and fire extinguishers.\119\ Some rioters came armed with handguns, pepper spray, knives, and brass knuckles.\120\ Congressional staff and reporters were warned to stay away from windows and doors.\121\

c. Rioters Storm the Capitol

Between 2pm and 2:30pm, rioters broke through multiple entrances and began pushing deeper into the Capitol, flooding the Rotunda, Crypt, Statuary Hall, and other locations.\122\ Videos captured by rioters show the crowd, many in Trump paraphernalia, chanting ``Stop the Steal'' and ``U.S.A.'' as they breached the Capitol and overpowered security.\123\

Meanwhile, the Joint Session had separated into different chambers. The Senate was in the midst of a debate regarding an objection to certifying Arizona's Electoral College votes.\124\ Secret Service rushed Vice President Pence out of the Senate chambers and took him and members of his family to a secure location within the Capitol.\125\ Capitol Police officer Eugene Goodman led rioters away from the entrance to the Senate chambers, narrowly avoiding a potentially deadly encounter between Members of the Senate and rioters.\126\ Senators were then evacuated from the Chamber.\127\

On the other side of the Capitol, the House went into recess and members were told to lock down and shelter in place.\128\ By 2:45 pm, members of the Capitol Security Team were forced to barricade the doors to the Chamber as insurrectionists attempted to break in. House Members were instructed to put on gas masks and some attempted to build makeshift shelters in case the mob broke through the doors.\129\ Members who were on the ground level were evacuated through the Speaker's Lobby as Capitol Security guarded the door with guns.\130\ Ashli Babbitt, an Air Force veteran, was fatally shot as she and others tried to break through the barricaded glass door.\131\ Members, reporters, and staff in the Gallery remained trapped one floor above the rioters. Videos taken during the events on January 6th show this group sitting and lying down in the aisles in an attempt to shelter behind the chairs.\132\ One particularly moving photo shows Representative Jason Crow (D-CO), a former Army Ranger, comforting Representative Susan Wild (D-PA) as the pair sheltered in the Gallery.\133\ Rep. Crow recounted that he was doing what any friend would do, telling Rep. Wild ``that I was there for her, and that we would get through it.'' \134\ Another video shows Rep. Lisa Blunt Rochester (D- DE) praying loudly in the Gallery for safety and peace as she and other lawmakers, including Rep. Pramila Jayapal (D-WA), watched Capitol Police officers barricade the door to the Chamber.\135\

d. The Rioters Target Vice President Pence and Speaker Pelosi

As members of Congress moved to secure locations or sheltered in place, rioters walked the halls carrying Confederate flags, vandalizing the building, and breaking into congressional offices, including the office of Speaker of the House Nancy Pelosi.\136\ 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.'' \137\ The use of the term ``Crazy Nancy'' is significant, for this is Mr. Trump's nickname for the Speaker of the House. Vice President Mike Pence was another primary target for the most violent sections of the mob. ``Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,'' said one rioter.\138\ Rioters called for Pence's death.\139\ Throughout the Capitol, Members and their staff barricaded themselves in offices, hid under tables, called loved ones, and prayed for safety.\140\

e. The President Fails to Respond to or Condemn the Violence at the Capitol

President's Counsel argue that the President did not intend or anticipate for violence to take place. If that were the case, one would expect that--as soon as it was clear that the rioters had begun engaging in unlawful or violent acts--Mr. Trump would quickly and clearly condemn these actions and take every action possible to stop further violence. Arguably, once the lawbreaking began, it was only Mr. Trump that had the most potent power at that point to get his supporters to stop. However, instead of acting expeditiously, it took him more than two hours after the rioters stormed the Capitol to make a statement. In this time, it is reported that lawmakers and Trump advisors pleaded with him to call off the angry mob and denounce the violence.\141\ Mr. Trump was seemingly unmoved by these pleas for help, and it is even reported that he was pleased by the actions of his supporters.\142\ Rather than call off his supporters, it is reported that Mr. Trump called a Member of the Senate asking him to raise additional objections to certifying the Electoral College results.\143\ Not until 4:15pm did Mr. Trump release a pre-recorded message, telling supporters to go home. The video statement did not condemn the rioters' actions at the Capitol.

Mr. Trump's delay in responding to the insurrection is unsurprising, for many of the rioters thought they were ``answer[ing] the call of my President.'' \144\ In a livestreamed video from inside the Capitol, one rioter declared that ``[o]ur president wants us here. . . . We wait and take orders from our president.'' \145\ Another rioter claimed that she ``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.'' \146\ One supporter, who was later arrested for his actions on January 6th, stated through his lawyer that he, ``acted out of the delusional belief that he was a `patriot' protecting his country . . . He was responding to the entreaties of the-then commander in chief, President Trump. . . . The President maintained that the election had been stolen and it was the duty of loyal citizens to `stop the steal.' '' \147\ To paraphrase the House Managers, Mr. Trump sold his followers the big lie of a stolen election and then provoked those followers to violent action to ``stop the steal.''

In his late statement on the events at the Capitol, Trump urged his followers to ``Please support our Capitol Police and law enforcement stay peaceful.'' Of course, the insurrection was never peaceful, and the Capitol Police were treated cruelly by the mob. Over the course of the insurrection, 140 police officers were injured and one officer, Brian Sicknick, was killed. Four rioters also died. Congressional Leadership offices were trashed, the walls of the Capitol bore the marks of bullets, monuments were destroyed, windows were smashed and broken in, Members and staff were terrorized, Senate desks were ransacked, and smoke hung in the air. Mr. Trump should have pleaded with the crowd to stand down and leave the Capitol as soon as the insurrection began. The fact that he waited to address the rioters, and downplayed the severity of the insurrection to the point of even praising the patriotism of the rioters, was not just dereliction of duty. It was malicious disregard for the lives of Capitol Police, Members of Congress, staff, and Capitol workers threatened by the mob that he incited.

f. The Capitol is Cleared and the Election Results are Certified

It took more than four hours after the rioters first entered the building to secure the Capitol and another three hours before the Joint Session could resume.\148\ Nevertheless, Joseph R. Biden Jr. was confirmed the winner of the 2020 election at approximately 4am.\149\ Democracy prevailed. E. The First Amendment Is Not a Defense to Mr. Trump's Incitement of Insurrection

President's Counsel argued at trial that Mr. Trump was exercising his First Amendment rights in expressing his views at the ``Save America'' rally, and thus cannot be convicted in this proceeding. I conclude that there is overwhelmingly clear and convincing evidence that the First Amendment does not inoculate him from the current Impeachment charge.

a. The First Amendment Is Not a Bar to Impeachment

As I explained in Section II, the relevant standard in an Impeachment trial is whether a president committed impeachable ``high Crimes and Misdemeanors.'' An impeachable offense need not violate a criminal or other established law. Indeed, even an action that is lawful or otherwise protected by the Constitution can still be an impeachable offense. Rather the appropriate standard in this proceeding is whether an offense is ``incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.'' \150\ In addition, as I explained in Section IV, there is no defined standard of proof in an Impeachment, and there are no requirements to adhere to the same standards as in a criminal prosecution.

As a result, in an Impeachment trial, the Senate is simply not bound by a determination of whether Mr. Trump is protected by the First Amendment, nor must the Senate demand a showing that every element of a criminal charge of incitement has been met.

b. Mr. Trump's Speech Likely Satisfies the Standard of Incitement

Although I have concluded that the First Amendment does not necessarily serve as a shield in this proceeding, I find it persuasive that the bedrock principle of free speech has a long history in our country. Therefore, I undertook an examination of the governing case precedent regarding incitement. I have concluded that, even if the First Amendment were to apply in this case, Mr. Trump's overall course of conduct would satisfy the standard for incitement.

The First Amendment prohibits any law ``abridging the freedom of speech.'' \151\ However, even at our country's founding, it is clear that the First Amendment was not intended to provide absolute protection for every utterance. Of the fourteen states that ratified the Constitution by 1792, thirteen had laws limiting libelous or blasphemous speech.\152\ In addition, the Supreme Court has recognized specific categories of speech that are not protected by the First Amendment and which the government may regulate because of their content. These categories are ``obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.'' \153\

The relevant legal framework for incitement was established by the U.S. Supreme Court in the 1969 case of Brandenburg v. Ohio.\154\ In that case, a Ku Klux Klan leader, Clarence Brandenburg, was convicted after making a speech at a Klan rally that apparently broke an Ohio law against ``advocat[ing] crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.'' \155\ The Supreme Court overturned Brandenburg's conviction and struck down the statute on First Amendment grounds. In doing so, the Court articulated a new test for when advocating for violence or lawbreaking could be criminally prosecuted. The Brandenburg test defines unprotected incitement as speech that is ``directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'' \156\

Subsequent cases further clarified the ``imminence'' standard set out in Brandenburg. In the Supreme Court case of Hess v. Indiana, Gregory Hess was attending an anti-Vietnam war protest when the police moved a group of protesters from the street onto the sidewalk.\157\ Hess said, ``We'll take the [effing] street later'' and was convicted for disorderly conduct.\158\ The Supreme Court reversed Hess' conviction, concluding, ``Since the uncontroverted evidence showed that Hess' statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had `a tendency to lead to violence.' '' \159\

The Supreme Court subsequently explained that a finding of ``imminence'' also hinged upon the context and timing connecting speech and subsequent acts of lawbreaking. In NAACP v. Claiborne Hardware Company, a local branch of the National Association for the Advancement of Colored People (NAACP) organized a boycott of white-owned stores in Mississippi.\160\ The boycott was largely supported by impassioned speeches encouraging nonviolent picketing-- including by boycott organizer Charles Evers--but some acts and threats of violence did occur.\161\ The Court concluded, ``There are three separate theories that might justify holding Evers liable . . . First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.'' \162\ In the specific case of Evers' speech, the Court concluded ``In the course of [Evers'] pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however the acts of violence identified in 1966 occurred weeks or months after [his] April 1, 1966, speech.'' \163\

There is overwhelmingly clear and convincing evidence that Mr. Trump's overall course of conduct meets the spirit of the Brandenburg test. As laid out in the Claiborne case, a finding of ``imminence'' should take into account the context and timing of Mr. Trump's January 6th rally speech. After months of fueling the narrative that the election was stolen from him, Mr. Trump asked his supporters to assemble on the day that Congress would be certifying the election results. Once Mr. Trump had gathered his supporters--knowing that they would listen--he directed the crowd to ``walk down Pennsylvania Avenue,'' ``fight like hell,'' and ``stop the steal.'' Unlike the speech in Claiborne, which was far removed in time, the lawlessness was imminent because it happened a short distance and short time after Mr. Trump's speech. Unlike the indefinite speech in Hess, Mr. Trump's speech was directed at a specific group of persons, and subsequent acts of violence are directly traceable to people who had listened to Mr. Trump's calls to action.

On the issue of Mr. Trump's intent, whether or not Mr. Trump specifically intended every act of violence, he set these events in motion. If Mr. Trump truly did not intend for lawbreaking, what did he expect his supporters would do once they reached the Capitol? How did he expect his supporters to lawfully achieve the aim of preventing electors from being counted? From this evidence, we can infer that Mr. Trump understood there was a high likelihood that his supporters would break the law once they got to the Capitol.

Further revealing his state of mind, Mr. Trump did not publicly disapprove of the insurrection as it was happening, or take concrete steps to clear the mob. The first public statement he made, once the mob had breached the Capitol, was to disparage Vice President Pence for failing to block the certification. Instead of acting expeditiously, it took him nearly two hours to acknowledge the attack. In his three statements that day, he repeated false claims that the election was stolen and sympathized with his followers. There are reports that he even called a sitting Senator to ask him to object to additional states, as the insurrection was taking place. In addition, there is no evidence that Mr. Trump tried to activate the National Guard, and even rebuffed requests to do so. The question becomes how did Mr. Trump expect these actions--criticizing the Vice President, urging additional electoral objections, and praising his supporters--to calm down tensions? How did he foresee that the overwhelmed Capitol police would be able to push back the mob without additional law enforcement assistance? From this evidence, we can infer that Mr. Trump was satisfied, or at least was not displeased, that his actions had inflamed his supporters to violently disrupt the electoral certification.

c. Mr. Trump's Speech Was Held to a Higher Standard as a Public Official

It is further important to note that Mr. Trump was not making statements in his capacity as a private citizen but as president of the United States. In the Supreme Court case, Garcetti v. Ceballos, the Court held that ``when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.'' \164\ In this case, the respondent was disciplined for a memorandum he wrote as part of his employment in a district attorney's office, and asserted that his supervisors violated his First Amendment rights.\165\ The Court concluded ``We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.\166\

In Mr. Trump's case, it would be difficult to argue that he gave a political speech at the ``Save America'' rally outside the course of performing his official duties. The purpose of the speech was to use his role as president to urge his supporters to stop the certification of Biden's electoral win. In addition, there is evidence that members of the crowd had taken Mr. Trump's invocations to attend the rally, and his insisting that they head to the Capitol, as instructions coming from the president.\167\

Moreover, as Manager Raskin explained, a president takes an oath to uphold the laws, the Constitution, and the principles of our republic.\168\ In exchange, the president is given tremendous power and prestige--more so than any other person in the country. That is why, in an instant, a president's words can calm, agitate, or otherwise change the landscape on issues ranging from foreign affairs, to the economy, to the rule of law. Not only can the president's words have an expansive ripple effect, they are more likely to succeed in inciting action from the public. These potent powers can be wielded by the president for the good of the country, or can be exploited to subject it to the gravest abuses. That is why--for the protection of our laws and democratic institutions--a president's primary obligation is to uphold their oath of office, and any freedom of expression must yield to that higher duty.

In this case, Mr. Trump did not have a First Amendment right to fuel a mass disinformation campaign, foreseeably fan the flames of political division, and then direct a mob to disrupt a congressional proceeding. VII. OBSTRUCTION OF ELECTORAL COLLEGE

In inciting the insurrection on January 6th and attempting to overturn the 2020 election, Mr. Trump attempted to destroy our democratic system and negate the will of the American people.

The Electoral College process is laid out in the Twelfth Amendment of the Constitution, which states:

``The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least . . . they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice- President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted[.]''

Just as the Electoral College has been carried out and affirmed since the first presidential election of President George Washington,\169\ the 2020 election took place according to the requirements of the Constitution. Voters in each respective state and territory chose their electors to serve in the Electoral College,\170\ with Mr. Biden winning a majority of 306 electoral votes.\171\ On December 14, 2020, the appointed electors convened state-by-state to cast their ballots for the President and Vice President of the United States, and certified the results.\172\ On January 6th to 7th of 2020, Congress counted the certified votes, and declared Mr. Biden and Kamala Harris the winners. \173\

Throughout the Electoral College process, Mr. Trump attempted to interfere and nullify the outcome. For example, as discussed in Section VII, Mr. Trump was at the head of a mass disinformation campaign to discredit the election results before the election had even gotten underway, and then filed dozens of lawsuits alleging widespread voter fraud.\174\ In addition, as I will outline, he wielded his overwhelming power as president to cajole and intimidate members of federal, state, and local government to start investigations, file lawsuits, and reject electoral votes in a bid to overturn the 2020 election. A. Mr. Trump Attempted to Use Federal Law Enforcement Agencies to Carry Out Investigations and File Lawsuits

After losing the 2020 election, Mr. Trump pushed the Justice Department to investigate his meritless allegations of election irregularities.\175\ He also pushed the Justice Department to ask the Supreme Court to invalidate Mr. Biden's victory, which his appointees refused to do, citing the lack of evidence.\176\ Mr. Trump even disparaged his own FBI and DOJ, implying that they were working against him. In an interview, Mr. Trump said, ``This is total fraud. And how the F.B.I. and Department of Justice--I don't know, maybe they're involved--but how people are allowed to get away with this stuff is unbelievable. This election was a total fraud . . . Missing in action . . . Can't tell you where they are.'' \177\

Succumbing to this pressure, Attorney General William Barr issued a memorandum to U.S. attorneys across the country allowing them to pursue any ``substantial allegations'' of voting irregularities before the 2020 presidential election was certified.\178\ The memorandum gave prosecutors the ability to sidestep longstanding Justice Department policy of not taking overt steps on possible election fraud before results are certified. In response, career DOJ prosecutors called on Mr. Barr to rescind the memo, because it was not based on fact and there was no evidence of widespread voter fraud.\179\

After Mr. Barr stepped down as Attorney General, Mr. Trump then reportedly pressured Barr's successor, Acting Attorney General Jeffrey Rosen, to file legal briefs seeking to overturn his election loss.\180\ He wanted Mr. Rosen to appoint special counsels, including a counsel who would look into Dominion Voting Systems--which is at the center of a right-wing conspiracy theory accusing the company of conspiring with the Venezuelan government to tip the election toward Mr. Biden. Mr. Rosen refused the president's entreaties. Mr. Trump then plotted with Jeffrey Clark, a Trump loyalist and the head of the DOJ's civil division, to oust Mr. Rosen as acting attorney general, and replace him with Mr. Clark, who was willing to do Mr. Trump's bidding in trying to overturn the Georgia election results. This plan was only unsuccessful because Mr. Trump's advisors convinced him the move could potentially lead to mass resignations within DOJ's leadership and lead to congressional investigations.\181\ B. Mr. Trump Exerted Inappropriate Pressure on State Elected Officials

Article II, Section 1, Clause 2 provides that each state shall appoint electors ``in such Manner as the Legislature thereof may direct.'' \182\ However, the decisions on how and when to choose electors is left up to the states. The Electoral Count Act only requires that states be required to certify their elections at least six days before the electors meet to vote.\183\ After his loss on Election Day, Mr. Trump sought to exploit the ambiguous language of the Electoral Count Act that gives states discretion in choosing electors. Most state laws require the appointment of electors who vote according to the outcome of the popular vote in each state.\184\

However, Mr. Trump sought to use the weight of his office to persuade and, in some cases, intimidate state officials. For example, he invited GOP members of the Michigan state legislature to the White House, in a brazen bid to get them to throw out the state's election results.\185\ He also called two members of the Wayne County Board of Canvassers, including its Republican chairwoman, who had already voted to certify that Joe Biden won their county.\186\ Within 24 hours of the call, the Republican chairwoman announced that she wanted to ``rescind'' her vote.\187\ Her reasoning mirrored Mr. Trump's claims that the election may have been rife with fraud. In another instance, he called the speaker of the Pennsylvania House of Representatives, Bryan Cutler, and inquired about the electoral process. According to Cutler's spokesperson, Mr. Trump blatantly asked, ``I'm hearing about all these issues in Philadelphia, and these issues with your law What can we do to fix it?'' \188\

Mr. Trump's effort hit its crescendo when the Trump campaign convinced supporters in several states to create an alternate slate of electors to send for the congressional certification.\189\ The Trump campaign helped organize alternate Electoral College meetings in Wisconsin, Arizona, Pennsylvania, Georgia, New Mexico, and Nevada.\190\ However, election law experts dismissed the validity of these false electors, which had ``neither been certified by state executives nor purportedly appointed by state legislators.'' \191\

Mr. Trump also took extra effort to influence the outcome of the Georgia election, a fierce battleground state. In early December, he called Governor Brian Kemp and asked him to hold a special session of the Georgia legislature to appoint Trump electors to reverse Mr. Biden's win. Mr. Trump also wanted Kemp to order an audit of absentee ballot signatures. When Kemp told the former president he would not be complying with either demand, Mr. Trump told a crowd of supporters at a Georgia rally that, ``Your governor could stop it very easily if he knew what the hell he was doing . . . So far we haven't been able to find the people in Georgia willing to do the right thing.'' \192\

In the most extraordinary example of his inappropriate interactions with state lawmakers, Mr. Trump outright tried to coerce Georgia Secretary of State Brad Raffensperger, ``to find'' 11,780 votes--which would amount to the one vote margin he needed to win the state.\193\ Mr. Trump spent roughly an hour haranguing Raffensperger and Ryan Germany, the Georgia secretary of state's general counsel, about doing another vote count and insisting on baseless conspiracy theories. Even when presented with facts to the contrary by Raffensperger and Germany, who are both Republicans, Mr. Trump did not relent.

Mr. Trump also made veiled threats of how his supporters would punish Republicans if the Georgia election officials did not go along with what he was asking. Specifically, he told Raffensperger, who will be up for reelection in 2022, ``[T]hey hate the state, they hate the governor, and they hate the secretary of state. I will tell you that right now. And the only people that like you are people that will never vote for you. You know that, Brad, right?'' \194\

Mr. Trump even suggested that Raffensperger and Germany would face criminal consequences if they refused to intervene, saying ``[T]he ballots are corrupt. And you're going to find that they are--which is totally illegal, it is more illegal for you than it is for them because, you know what they did and you're not reporting it. That's a criminal--that's a criminal offense. And you can't let that happen. That's a big risk to you and to Ryan, your lawyer. '' \195\

In the end, Mr. Trump made so many false claims about the Georgia election, a top state official had to publicly debunk the claims one-by-one to restore public trust in the integrity of their election.\196\ C. Mr. Trump Lobbied Vice President Pence to Reject Electoral Votes

Vice President Pence presided over the January 6th certification of electoral votes. This role is spelled out by Article II, Section 1 of the Constitution, which dictates that ``The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.'' \197\ In conducting this duty, the Vice President has no more power than to determine whether the certificates submitted by each state are authentic and then to count the votes.\198\

In the days leading up to and on January 6th, Mr. Trump denied the constitutional reality of the Vice President's role and made it clear that he wanted Vice President Pence to block electoral votes for Mr. Biden. At his behest, a group of Republican lawmakers filed a lawsuit against Vice President Pence. The lawsuit alleged that the Twelfth Amendment gave the Vice President, and not states, unilateral power to determine which among competing slates of electors may be counted.\199\ Mr. Trump's own Justice Department stepped in to defend Mr. Pence, and a federal judge tossed out the lawsuit after finding that the Republican lawmakers lacked standing to sue in this case.\200\

Still, Mr. Trump unabashedly and repeatedly tried to coerce Vice President Pence into unilaterally rejecting the election results. On January 2nd, he falsely proclaimed over Twitter that, ``The Vice President has the power to reject fraudulently chosen electors.'' \201\ Two days later, Mr. Trump said at a rally in Georgia that, ``I hope Mike Pence comes through for us, I have to tell you . . . Of course, if he doesn't come through, I won't like him as much.'' \202\ Trump reportedly met with and called Pence multiple times-- plying him to object to Biden's victory, including at least one time with threatening language.\203\ Trump reportedly solicited others in his orbit to put pressure on the Vice President, including Rudy Giuliani and trade adviser Peter Navarro.\204\ Despite the enormous pressure, Mr. Pence told Mr. Trump that he planned to certify the election results for Mr. Biden.\205\

In response, Mr. Trump tweeted on the morning of January 6th that, ``All Mike Pence has to do is send [the votes] back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!'' \206\ He also tweeted ``If Vice President @Mike--Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!'' \207\ In his remarks at the ``Save America'' rally itself, Mr. Trump said, ``I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. . . . And I actually--I just spoke to Mike. I said: 'Mike, that doesn't take courage. What takes courage is to do nothing. That takes courage.' '' \208\

Once the electoral vote count had begun, it was clear that Vice President Pence was not going to comply with his demands. Mr. Trump attacked him on Twitter writing, ``Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!'' \209\ D. Mr. Trump Encouraged Members of Congress to Deny and Overturn the Election Results

Once it was clear that Mr. Trump had no plans of conceding, even after Mr. Biden had been declared the presumptive winner, Republicans were faced with a choice. Manager Lieu explained that Mr. Trump targeted Members of Congress on social media making it clear he saw their siding with him as a loyalty test. Mr. Trump reminded Republicans that he, in his view, had gotten them elected and he expected their gratitude.\210\ Under these threats of retribution, Mr. Trump was successful in getting Republicans to line up with him--in either refusing to acknowledge that Mr. Biden had won or worse, enabling his baseless claims of a rigged election.\211\

In early December, Mr. Trump also identified an ally in the House of Representatives who was circulating a Dear Colleague letter asking Republican members to sign onto an amicus brief supporting a lawsuit filed by the Texas Republican Attorney General in the Supreme Court to void the election results of other states.\212\ Mr. Trump began to personally lobby House Republicans asking them to sign the amicus brief.\213\ In the end, one hundred and twenty six Republican members of Congress signed on, including the House Minority Leader.\214\ The U.S. Supreme Court rejected the lawsuit saying the state of Texas lacked standing to pursue the case.\215\

As an extension of Mr. Trump' pressure campaign, Republican Members of Congress began to similarly view the certification of the Electoral College as a loyalty test to Mr. Trump. A few days before January 6th, eleven current and then-incoming Republican senators announced that they would vote to reject the Electoral College votes of some states as not ``lawfully certified,'' unless Congress appointed a commission to conduct an emergency, ten day audit of the election results.\216\ One hundred and forty Republican Members of the House planned a similar effort.\217\ Together, the Senate and House Members planned to object to the counting of electors from Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.\218\

The question is not whether these Members had the legal right to object to electors but whether there were facts to support the objections. At that point, the results of the election and lack of substantive voting irregularities was affirmed by dozens of judges, the U.S. Supreme Court, governors, and election officials.\219\ In addition, Department of Homeland Security officials put out a statement that said, ``The November 3rd election was the most secure in American history.''\220\ Attorney General Barr put out a similar statement that said, ``[We] have not seen fraud on a scale that could have effected a different outcome in the election.''\221\ In the face of all this evidence, the subsequent objections could be seen as little more than a ploy to lend specious legitimacy to Mr. Trump's allegations of voter fraud and avoid provoking Mr. Trump's ire. E. Mr. Trump Sought to Block the Peaceful Transfer of Power

Mr. Trump's overall course of conduct embodied the exact kind of behavior that the Framers built constitutional protections to thwart. The Framers knew that an executive who amassed too much power might replicate the abuses of a monarchy. At the Constitutional Convention, James Madison explained the risks of appointing an executive--saying ``loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.''\222\ An exchange between two delegates, William Richardson Davie and James Wilson, highlights the importance of safeguarding against a corrupt president that would cheat to get reelected. Davie stated, ```[i]f he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself reelected.' [Davie] considered this as an essential security for the good behaviour of the Executive.''\223\ Wilson concurred with Davie ``in the necessity of making the Executive impeachable while in office.''\224\

Without mechanisms to keep an out-of-control president in check, there was little binding him to the law. This, in part, prompted the Framers to design the system of checks and balances and Congress's Impeachment power. Another intentional hallmark of our democracy is the peaceful transfer of power, which is especially important when an incumbent loses re-election.\225\ This assures that an executive acquires and maintains power only through lawful means. It also ensures that power is given to a president, and taken back, according to the will of people. It began when President John Adams--defeated by his bitter political rival Thomas Jefferson--quietly left the White House on the morning of the new president's inauguration.\226\ Since then, no president has ever refused to accept an election result or defied the lawful processes for resolving electoral disputes, until Mr. Trump.

Mr. Trump, unable to accept the will of the people, categorically rejected the decision of Americans as expressed in the 2020 election. Even more than refusing, he repeatedly sought to undermine processes at the federal, state, and local level that would advance a peaceful transfer of power. As the House Managers noted, Mr. Trump tried to obstruct the election process through non-violent means.\227\ When these attempts failed, he directed a mob to help him wrest power by launching an attack on the legislative branch. IX. VIOLATION OF SEPARATION OF POWERS

One of the key principles rooted in our democratic system is the separation of powers between the co-equal branches of government. This is apparent from the way the Framers devised a system of federal government that diffuses and divides its core functions across the legislative, executive, and judicial branches.

The doctrine is rooted in a political philosophy that aims to keep the government, as a whole and each branch, both limited and empowered, so that the government can function effectively, while the branches can prevent one another from acting arbitrarily or recklessly. As James Madison explained in Federalist Paper Number 47, ``The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.''\228\

Therefore, when any one branch of government seeks to obstruct an essential function of another branch, it threatens the separation of powers.\229\ In a case where a president seeks to derogate the authority of another branch, it can also undermine the president's constitutional obligation to ``take Care that the Laws be faithfully executed.''\230\

In inciting the armed assault on the Capitol on January 6th, Mr. Trump knowingly and recklessly threatened a constitutional proceeding of the Congress. In all this, Mr. Trump gravely endangered the security of the United States and its institutions, and imperiled a coequal branch of government. X. VIOLATION OF OATH OF OFFICE

Manager Castro outlined the numerous ways that Mr. Trump abandoned his post as the insurrection began, and even hours after it was underway.\231\ Capitol Police were overwhelmed and violently assaulted by the armed mob. Members of Congress and congressional staff feared for their lives, many of them hiding or barricaded in offices, as the mob wreaked mayhem on the Capitol grounds. It was all unfolding on television, leaving little doubt that Mr. Trump saw it happening in real time.

Manager Castro emphasized that Mr. Trump could have simply told the rioters to stop and leave the Capitol.\232\ As I explained in Section VII, Mr. Trump did not acknowledge the attack for nearly two hours, while Republican lawmakers and the people closest to him implored him to call off the attack. Instead, he tweeted out criticism of Vice President Pence. When he finally acknowledged the attack, he did not denounce the mob or rioters, but asked them to ``stay peaceful,'' even though it was clear that they had undertaken an unlawful siege at the Capitol. At this time, Mr. Trump still did not ask the rioters to stop. Three and half hours in, he released a video reaffirming the same voter fraud lies, and told his supporters, ``We love you. You're very special.'' While Mr. Trump did tell the rioters to go home this time, he still refused to disavow the ongoing attack or the attackers themselves.

In addition to inciting the insurrection, Mr. Trump abandoned his duties to defend the American people, even after the events of the day turned deadly. Manager Castro noted that he did not deploy the National Guard, nor any other law enforcement.\233\ He was so disengaged from discussions with the Pentagon about deploying the National Guard that Vice President Pence had to intervene to help move the request forward.\234\

Taken together, Mr. Trump's conduct was an astonishing and willful dereliction of duty. He had sworn an oath to ``faithfully execute the office of President of the United States and preserve, protect and defend the Constitution of the United States.''\235\ Yet on that day, he commanded his supporters to inflict grave harm to the constitutional order, by telling them to disrupt the electoral certification and the peaceful transfer of power. He sat back and watched as his supporters took part in an attack on the government institutions that he swore to defend. Then, he entirely failed to stop or condemn the widespread lawbreaking that his supporters took part in. As such, I find that there is overwhelmingly clear and convincing evidence that Mr. Trump violated his oath of office.

XI. CONCLUSION: CONVICTION AND DISQUALIFICATION OF MR. TRUMP IS AN APPROPRIATE REMEDY

Conviction and disqualification of a president from office requires a high standard and should only be arrived at when there are no other remedies available.

First, I would refute several assertions by President's Counsel that the Impeachment proceeding, and the remedies thereof, are not the appropriate way to hold Mr. Trump accountable for his actions. President's Counsel and the Senate Minority Leader argue that the more proper forum is a criminal proceeding because of the criminal implications of his offenses. Taken to its logical extreme, their views would absurdly mean that if a president's malfeasance could be prosecuted, the president should be protected from the Impeachment process. In addition, Manager Raskin correctly differentiated the purpose and independence of the Impeachment process from the prosecution of crimes. As Manager Raskin stated, ``[Impeachment] was created to prevent and deter elected officials who swear an oath to represent America but then commit dangerous offenses against our republic.''\236\ An Impeachment, unlike a criminal case, is not meant to punish the defendant, but to guard the country and the Constitution from an unfit executive. As I have explained, by his conduct, Mr. Trump violated his oath of office and refused to defend the Constitution itself. Therefore, an Impeachment is the most appropriate forum to protect the integrity of the presidency and the constitutional order.

President's Counsel also contend that Impeachment is unnecessary in this case because the 2020 election was the remedy for his conduct. Of course, when Mr. Trump incited a mob to violent action at the U.S. Capitol, it was an attempt to delay the certification of the election results. This followed months of Mr. Trump's public refusal to concede the election on the grounds that it was stolen from him. Clearly, the election process is insufficient in this case because Mr. Trump does not recognize the validity of any election outcome that does not favor him.

Failing to convict the former president would result in several constitutional perils. First, Mr. Trump may once again run for president. If re-elected, there is no reason to believe that he would feel constrained by any limitations. An acquittal essentially would provide him permission to commit the same abuses or worse, without fear of accountability. That includes leveraging all the powers of the presidency to stay in power or wage an assault on a coequal branch of government. Presidents must be held accountable when their lust for power does violence to bedrock principles. Disqualification from public office is the only remedy left to prevent such behavior from Mr. Trump in the future.

A failure to convict would also be a lesson to future presidents with authoritarian tendencies that they can attack our democratic principles and institutions without consequence. Even beyond a ``January Exception,'' a future president might reason that otherwise impeachable conduct will not be challenged during any part of their presidency. In addition to rank abuse of power, a future president may not submit to the peaceful transfer of power and the sacred will of the people. In terms of the legislative branch, Congress would send a message that it is unwilling to use its own oversight powers functionally and effectively, and is unwilling to uphold a meaningful separation of powers. Disqualification is the necessary method for protecting the republic from such democratic decay within the executive and legislative branches.

This chapter in history reminds us that democracy is fragile and we must diligently safeguard its principles. To this end, I have a responsibility to defend the truth, the rule of law, and our democratic institutions. I am compelled to vote to convict President Donald J. Trump of committing ``high Crimes and Misdemeanors'' and support his disqualification from ever again holding an office of public trust. Endnotes

1. Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, H.R. Res. 24, 117th Cong. (2021).

2. U.S. Const. art. I, Sec. 3, cl. 6.

3. U.S. Const. art. II, Sec. 4.

4. U.S. Const. art III, Sec. 3, cl. 1.

5. Staff of H. Comm. on the Judiciary, 116th Cong., Rep. on Constitutional Grounds for Presidential Impeachment 14 (Comm. Print 2019).

6. 2 Sir William Blackstone, Commentaries on the Laws of England 2152 (William Carey Jones ed., 1976).

7. Id. at 2153.

8. Charles Doyle, Cong. Research Serv., 98-882, Impeachment Grounds: A Collection of Selected Materials 4 (1998).

9. The Federalist Paper No. 65, at 439 (James Madison) (Jacob E. Cooke ed., 1961)

10. 2 The Records of the Federal Convention of 1787 550 (Max Farrand ed., 1911).

11. Ibid.

12. 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 113 (Jonathon Elliot ed., 2nd ed. 1861).

13. Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 21 (3rd ed. The University of Chicago Press 2019) (1996).

14. 2 Joseph Story, Commentaries on the Constitutions 799 at 269-70 quoting William Rawle, A View of the Constitution of the United States at 213 (2d ed. 1829).

15. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep. on Constitutional Grounds for Presidential Impeachment 27 (Comm. Print 1974).

16. 2 The Records of the Federal Convention of 1787, supra note 10, at 64-65.

17. Id. at 550

18. Ibid.

19. Ibid.

20. Ibid.

21. Id. at 551.

22. Id. at 600.

23. U.S. Const. art. I, Sec. 3, cl. 7.

24. 1 The Collected Works of James Wilson 736 (Kermit L. Hall and Mark David Hall eds., 2007).

25. Memorandum from William Barr, Attorney General, Department of Justice, to Rod Rosenstein, Deputy Attorney General, Department of Justice, and Steve Engel, Assistant Attorney General, Department of Justice 12 (June 8, 2018) (on file with the New York Times) (emphasis in original).

26. 2 The Records of the Federal Convention of 1787, supra note 10, at 65-66.

27. Charles L. Black, Jr. & Philip Bobbit, Impeachment: A Handbook, New Edition 17 (2018).

28. The Federalist No. 65, supra note 9, at 441; Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment 127 (2018).

29. The Federalist No. 65, supra note 9, at 441.

30. Id. at 442.

31. Black & Bobbitt, supra note 27.

32. Ibid. (Black's analysis is cited by several other scholars as persuasive; See e.g., Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment 137 (2018).

33. Bruce L. Castor Jr. et al, Trump's Answer to Article of Impeachment, (Feb. 2, 2021) at 1, https://www.cnn.com/2021/ 02/02/politics/trump-response-impeachment-article/index.html.

34. Castor Jr. et al, supra note 33, at 1-2.

35. Jamie Raskin et al, Trial Memorandum of the United States House of Representatives I. the Impeachment Trial of President Donald J. Trump, House Judiciary Com. 48 (Feb. 2, 2021), https://judiciary.house.gov/news/ documentsingle.aspx?DocumentID=3515.

36. Jared P. Cole & Todd Garvey, Impeachment and the Constitution, CRS (Nov. 20, 2019), https:// crsreports.congress.gov/product/pdf/R/R46013.

37. The Federalist No. 65, supra note 9, at 397.

38. Raskin et al, supra note 35, at 51.

39. Brian C. Kalt & Frank Bowman, Congress Can Impeach Trump Now and Convict Him When He's Gone, Wash. Post (Jan 11, 2021), https://www.washingtonpost.com/outlook/2021/01/11/ trump-impeachment-senate-trial/.

40. Ibid.

41. Brian C. Kalt, ``The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment'', 6 Texas Review of Law and Politics 13, 26 (2001).

42. Kalt, supra note 40, at 29.

43. Mark Aaronson et al, Constitutional Law Scholars on Impeaching Former Officers, Politico (January 21, 2021), at 2, https://www.politico.com/f/?id=00000177-2646-de27-a5f7- 3fe714ac0000.

44. Id. at 1-92.

45. The Federalist No. 65, supra note 9, at 456.

46. Senate Historical Office, ``The First Impeachment'', United States Senate, https://www.senate.gov/artandhistory/ history/minute/The-First-Impeachment.htm.

47. Ibid.

48. Kalt & Bowman, supra note 38.

49. Ibid.

50. Raskin et al, supra note 35, at 73-74.

51. Raskin et al, supra note 35, at 74.

52. Kalt & Bowman, supra note 38.

53. Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analyses 80, (Henry Barton Dawson ed., U. of Chicago Press, 2000).

54. U.S. Const. art. I, Sec. 3, cl. 6.

55. The Federalist No. 65, supra note 9, at 441.

56. Siobhan Hughes, McConnell Won't Convene Senate Early to Accept Impeachment Article, Wall St. J. (Jan. 13, 2021), https://www.wsj.com/livecoverage/trump-impeachment-house- biden/card/lQqlkwh7BOCRLaSGrkig.

57. 167 Cong. Rec. S662 (daily ed. Feb. 11, 2021) (statement of Mr. Manager Lieu), https://www.congress.gov/ 117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.

58. Kavin Collier, Selfies, social media posts making it easier for FBI to track down Capitol riot suspects, NBC (Jan. 16, 2021), https://www.nbcnews.com/tech/social-media/selfies- social-media-posts-making-it-easier-fbi-track-down-n1254522

59. Bryce Klehm & Rohini Kurup, Compiling the Criminal Charges Following the Capitol Riot, Lawfare (Jan. 6, 2021), https://www.lawfareblog.com/compiling-criminal-charges- following-capitol-riot.

60. Salvador Rizzo, Trump attorneys falsely claim he was denied due process', Wash. Post (Feb. 13, 2021), https:// www.washingtonpost.com/politics/2021/02/13/trump-attorneys- falsely-claim-he-was- denied-due-process/ 61. Jared P. Cole, Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issues, CRS (July 27, 2016), https://www.crs.gov/Reports/R43730? source=search&guid=2a367adacc304370874da 997e155d437&index=0#_Toc530390992.

62. Incitement, Black's Law Dictionary (10th ed. 2014).

63. Ibid.

64. Nicholas Fandos et al, 144 Constitutional Lawyers Call Trump's First Amendment Defense `Legally Frivolous', N.Y. Times (Feb. 5, 2021), https://www.nytimes.com/2021/02/05/us/ politics/trump-impeachment-defense.html

65. U.S. Const. art. II, Sec. 1, cl. 8.

66. See 77 C.J.S. Riot Sec. 36.

67. Eugene Kiely et al, The President's Trumped-Up Claims of Voter Fraud, FactCheck.org (Jul. 30, 2020), https:// www.factcheck.org/2020/07/the-presidents-trumped-up-claims- of-voter-fraud/.

68. C-SPAN, President Trump Remarks in Oshkosh, Wisconsin, (Aug. 17, 2020), https://www.c-span.org/video/?474841-1/ president-trump-give-acceptance-speech-white-house-week

69. Paul LeBlanc & Jason Hoffman, Trump again casts doubt on whether he'll accept election result in latest unfounded attack on voting process, CNN (Sept. 24, 2020), https:// www.cnn.com/2020/09/24/politics/trump-2020-election-ballots/ index.html.

70. Sanya Mansoor, `I Have to See.' Mr. Trump Refuses to Say If He Will Accept the 2020 Election Results', TIME (Jul. 19, 2020), https://time.com/5868739/trump-election-results- chris-wallace/ 71. Nick Niedzwiadek et al, After Trump meeting, Michigan GOP leaders say Biden's win still stands, Politico (Nov. 20, 2020) https://www.politico.com/news/2020/11/20/michigan-gop- dc-trump-election-438690.

72. Staff Reports, READ THE FULL STATEMENT: Trump Responds to Biden Being Projected as Winner, NBC Boston (Nov. 7, 2020), https://www.nbcboston.com/news/local/read-the-full- statement-president-trump- responds-to-biden-being-projected-as-winner/2225599/.

73. Aamer Madhani & Kevin Freking, In video, Trump spreads baseless claims about voter fraud, PBS News (Dec. 2, 2020), https://www.pbs.org/newshour/politics/in-video-trump-spreads- baseless-claims-about-voter-fraud.

74. Philip Rucker, Trump escalates baseless attacks on election with 46-minute video rant, Wash. Post (Dec. 2, 2020), https://www.washingtonpost.com/politics/trump- election-video/2020/12/02/f6c8d63c-34e8-11eb-a997- 1f4c53d2a747_story.html.

75. Aamer Madhani & Kevin Freking, In video, Trump spreads baseless claims about voter fraud, PBS News (Dec. 2, 2020), https://www.pbs.org/newshour/politics/in-video-trump-spreads- baseless-claims-about-voter-fraud.

76. James Crowley, Trump Attacks FBI, DOJ, Supreme Court and GOP Senators in Twitter Tirade, Newsweek (Dec. 26, 2020), https://www.newsweek.com/trump-attacks-doj-fbi-supreme-court- gop-senators-mitch-mcconnell-twitter-1557376.

77. Alana Wise, Despite Clear Defeat, Trump Vows To Fight On, Continues Disinformation In Georgia, NPR (Jan. 4, 2021), https://www.npr.org/2021/01/04/953436607/despite-clear- defeat-trump-vows-to-fight-on-continues-disinformation-in- georgia.

78. Ariane de Vogue & Paul LeBlanc, Trump asks Supreme Court to invalidate millions of votes in battleground states, CNN (Dec. 10, 2020), https://www.cnn.com/2020/12/09/politics/ trump-supreme-court/index.html.

79. William Cummings et al, By the numbers: President Donald Trump's failed efforts to overturn the election, USA Today (Jan. 6, 2021), https://www.usatoday.com/in-depth/news/ politics/elections/2021/01/06/trumps-failed-efforts-overturn- election-numbers/4130307001/.

80. Ibid.

81. It's Official: The Election Was Secure, Brennan Ctr. for Justice (Dec. 11, 2020), https://www.brennancenter.org/ our-work/research-reports/its-official-election-was-secure.

82. GCC et al, Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executive Committees, CISA (Nov. 12, 2020), https://www.cisa.gov/news/2020/11/12/joint- statement-elections-infrastructure-government-coordinating- council-election.

83. https://abcnews.go.com/Politics/trump-pressure-pence- reject-bidens-win-congress-wednesday/story?id=75057551.

84. Colby Itkowitz, `Liberate': Trump tweets support of protests against stay-at-home orders, Wash. Post (Apr. 17, 2020), https://www.washingtonpost.com/politics/2020/04/17/ liberate-trump-tweets-support-protesting-against-stay-at- home-orders/.

85. Rebecca Boone, Armed statehouse protests set tone for US Capitol insurgents, Associated Press (Jan. 7, 2021), https://apnews.com/article/election-2020-coronavirus- pandemic-oregon-elections-idaho- 688fc8894f44992487bb6ee45e9abd77.

86. John Flesher, 6 men indicted in alleged plot to kidnap Michigan governor, A.P. (Dec. 17, 2020), https://apnews.com/ article/gretchen-whitmer-michigan-indictments-coronavirus- pandemic-traverse-city-10f7e02c57004da9843f89650edd4510.

87. 13 On Your Side Staff, Mr. Trump responds after failed Gov. Whitmer kidnap plot, 12 News (Oct 8, 2020), https://www.12newsnow.com/article/news/ health/coronavirus/president-trump-responds-after-failed-gov- whitmer-kidnap-plot/69-3a86c917-343a-431b-91b1-df5e72726a96.

88. Katie Shepherd, Trump cheers supporters who swarmed a Biden bus in Texas: `These patriots did nothing wrong', Wash. Post (Nov. 2, 2020), https://www.washingtonpost.com/nation/ 2020/11/02/trump-caravan-biden-bus/.

89. Matthew Schwartz, Trump Speaks Fondly Of Supporters Surrounding Biden Bus In Texas, NPR (Nov. 1, 2020), https:// www.npr.org/2020/11/01/930083915/trump-speaks-fondly-of- supporters-protecting-biden-bus-in-texas.

90. Stephen Fowler, `Someone's Going To Get Killed': Ga. Official Blasts GOP Silence On Election Threats, NPR (Dec. 1, 2020), https://www.npr.org/sections/biden-transition-updates/ 2020/12/01/940961602/someones-going-to-get-killed-ga- official-blasts-gop-silence-on-election-threats.

91. Melissa Quinn, ``Stand back and stand by'': Trump declines to condemn white supremacists at debate, CBS News (Sep, 30, 2020), https://www.cbsnews.com/news/proud-boys- stand-back-and-stand-by-trump-refuses-to-condemn-white- supremacists/.

92. Sheera Frenkel & Annie Karni, Proud Boys celebrate Trump's `stand by' remark about them at the debate, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/2020/09/29/ us/trump-proud-boys-biden.html.

93. Ben Collins & Brandy Zadrozny, Proud Boys celebrate after Trump's debate callout, NBC News (Sep. 30, 2020), https://www.nbcnews.com/tech/tech-news/proud-boys-celebrate- after-trump-s-debate-call-out-n1241512.

94. Alex Kaplan, Trump has repeatedly amplified QAnon Twitter accounts. The FBI has linked the conspiracy theory to domestic terror, Media Matters (Jan. 11, 2021), https:// www.mediamatters.org/twitter/fbi-calls-qanon-domestic-terror- threat-trump-has-amplified-qanon-supporters-twitter-more-20.

95. Axios, Trump praises Anon supporters: ``I understand they like me very much'', Axios (Aug. 20, 2020), https:// www.axios.com/trump-praises-qanon-supporters-i-understand- they-like-me-very-much-42146fb3-bd69-4943-8e80- 2f0bcf4b0b17.html.

96. Philip Bump, Rather than condemn the QAnon conspiracy theory, Trump elevates its dangerous central assertion, Wash. Post (Oct. 15, 2020), https://www.washingtonpost.com/ politics/2020/10/15/rather-than-condemn-qanon-conspiracy- theory-trump-elevates-its-dangerous-central-assertion/.

97. Dan Barry & Sheera Frenkel, ``Be There. Will Be Wild!': Trump All but Circled the Date, N.Y. Times (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/capitol-mob- trump-supporters.html.

98. Donald Trump, See you in Washington, DC, on January 6th. Don't miss it. Information to follow!, Facebook (Dec. 27, 2020), https://m.facebook.com/DonaldTrump/posts/see-you- in-washington-dc-on-january-6th-dont-miss-it-information-to- follow/10166040173540725/.

99. Dan Barry & Sheera Frenkel, ``Be There. Will Be Wild!': Trump All but Circled the Date, N.Y. Times (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/capitol-mob- trump-supporters.html.

100. @realdonaldtrump, I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11 AM Eastern. Arrive early--doors open at 7 AM Eastern. BIG CROWDS!, Instagram (Jan. 5, 2020), https://www.instagram.com/p/ CJrjQ79sY3Q/?hl=en

101. 167 Cong. Rec. S629 (daily ed. Feb. 10, 2021) (statement of Ms. Manager Plaskett), https:// www.congress.gov/117/crec/2021/02/10/CREC-2021-02-10-pt1- PgS615-4.pdf

102. Philip Bump, When did the Jan. 6 rally become a march to the Capitol?, Wash. Post (Feb. 10, 2021), https:// www.washingtonpost.com/politics/2021/02/10/when-did-jan-6- rally-become-march-capitol/ 103. 167 Cong. Rec. S629 (daily ed. Feb. 10, 2021) (statement of Ms. Manager Plaskett), https:// www.congress.gov/117/crec/2021/02/10/CREC-2021-02-10-pt1- PgS615-4.pdf

104. Women For Trump, Meet the Advisory Board, https:// women.donaldjtrump.com/ 105. 167 Cong. Rec. S630 (daily ed. Feb. 10, 2021) (statement of Ms. Manager Plaskett), https:// www.congress.gov/117/crec/2021/02/10/CREC-2021-02-10-pt1- PgS615-4.pdf (page S630)

106. Greg Miller et al, A mob insurrection stoked by false claims of election fraud and promises of violent restoration, Wash. Post (Jan. 9, 2021), https://www.washingtonpost.com/ national-security/trump-capitol-mob-attack-origins/2021/01/ 09/0cb2cf5e-51d4-11eb-83e3-322644d82356-story.html.

107. 167 Cong. Rec. S623 (daily ed. Feb. 10, 2021) (statement of Mr. Manager Swallwell), https:// www.congress.gov/117/crec/2021/02/10/CREC-2021-02-10-pt1- PgS615-4.pdf.

108. Bill Bostock, Videos show Trump protesters chanting `count those votes' and `stop the count' outside separate ballot-counting sites in Arizona and Michigan, Bus. Insider (Nov. 5, 2020), https://www.businessinsider.com/videos-trump- protesters-michigan-arizona-vote-count-2020-11

109. Jason Slotkin et al, 4 Stabbed, 33 Arrested After Trump Supporters, Counterprotesters Clash In D.C., NPR (Dec. 12, 2020), https://www.npr.org/2020/12/12/945825924/trump- supporters-arrive-in-washington-once-again-for-a-million- maga-march.

110. Atlantic Council's DFRLab, #StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection, Just Security (Feb. 10, 2021), https:// www.justsecurity.org/74622/stopthesteal-timeline-of-social- media-and-extremist-activities-leading-to-1-6-insurrection/ 111. Pilar Melendez, `Trump Is Calling Us to Fight!': Georgia Teen Charged in Capitol Riots, Daily Beast (Feb. 8 2021), https://money.yahoo.com/trump-calling-us-fight- georgia-232147165.html.

112. Dan Barry et al, `Our President Wants Us Here': The Mob That Stormed the Capitol, N.Y. Times (Feb. 5, 2021), https://www.nytimes.com/2021/01/09/us/capitol-rioters.html

113. Alan Feurer & Nicole Hong, `I Answered the Call of My President': Rioters Say Trump Urged Them On, N.Y. Times (Jan. 17, 2021), https://www.nytimes.com/2021/01/17/nyregion/ protesters-blaming-trump-pardon.html.

114. Aaron Blake, What Trump said before his supporters stormed the Capitol, annotated, Wash. Post (Jan. 11, 2021), Trump's speech before rioters stormed the Capitol, annotated--Washington Post

115. Ibid.

116. Julia Jacobo, A visual timeline on how the attack on Capitol Hill unfolded, ABC News (Jan. 10, 2021), https:// abcnews.go.com/US/visual-timeline-attack-capitol-hill- unfolded/story?id=75112066.

117. Ibid.

118. Jamie Raskin et al, Trial Memorandum of the United States House of Representatives In the Impeachment Trial of President Donald J. Trump, House Judiciary Com. (Feb. 2, 2021), at 22, https://judiciary.house.gov/uploadedfiles/ house_trial_brief_final.pdf, Taken from Marc Fisher et al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021), https://www.washingtonpost.com/graphics/2021/politics/trump- insurrection-capitol/.

119. Evan Hill et al., They Got a Officer!': How a Mob Dragged and Beat Police at the Capitol, N.Y. Times (Jan. 11, 2021), https://timesofindia.indiatimes.com/world/us/they-got- a-officer-how-a-mob-dragged-and-beat-police-at-the-capitol/ articleshow/80225478.cms; Peter Hermann, `We Got to Hold This Door', Wash. Post (Jan. 14, 2021), https:// www.washingtonpost.com/dc-md-va/2021/01/14/dc-police-capitol- riot/?arc404=true. Luke Mogelson, New Yorker, Among the Insurrectionists, The New Yorker (Jan. 15, 2021), https:// www.newyorker.com/magazine/2021/01/25/among-the- insurrectionists.

120. 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, New Yorker, Among the Insurrectionists, The New Yorker (Jan. 15, 2021), https:/ /www.newyorker.com/magazine/2021/01/25/among-the- insurrectionists.

121. Julia Jacobo, A visual timeline on how the attack on Capitol Hill unfolded, ABC News (Jan. 10, 2021), https:// abcnews.go.com/US/visual-timeline-attack-capitol-hill- unfolded/story?id=75112066.

122. Ibid.

123. Ibid.

124. 4 Lauren Leatherby & Anjali Singhvi, Critical Moments in the Capitol Siege, N.Y. Times (Jan. 15, 2021), https:// www.nytimes.com/interactive/2021/01/15/us/trump-capitol-riot- timeline.html.

125. Ashley Parker et al., How the Rioters Who Stormed the Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/politics/pence-rioters- capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b- f1381ef3d207_story.html.

126. Rebecca Tan, A Black Officer Faced Down a Mostly White Mob at the Capitol. Meet Eugene Goodman, Wash. Post (Jan. 14, 2021), https://www.washingtonpost.com/local/public-safety/ goodman-capitol-police-video/2021/01/13/08ab3eb6-546b-11eb- a931-5b162d0d033d_story.html.

127. Marc Fisher et al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021), https://www.washingtonpost.com/podcasts/ post-reports/four-hours-of-insurrection/; Lauren Leatherby et al., How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/ interactive/2021/01/12/us/capitol-mob-timeline.html.

128. Julia Jacobo, A visual timeline on how the attack on Capitol Hill unfolded, ABC News (Jan. 10, 2021), https:// abcnews.go.com/US/visual-timeline-attack-capitol-hill- unfolded/story?id=75112066.

129. Marc Fisher et al., The Four-Hour Insurrection, Wash. Post (Jan. 7, 2021), https://www.washingtonpost.com/podcasts/ post-reports/four-hours-of-insurrection/.

130. Ibid.

131. Ellen Barry et al, Woman Killed in Capitol Embraced Trump and QAnon, N.Y. Times (Jan. 7, 2021), https:// www.nytimes.com/2021/01/07/us/who-was-ashli-babbitt.html.

132. 6 Rep. Dan Killdee (@RepDanKildee), Twitter (Jan. 6, 2021, 2:52 PM), https://twitter.com/RepDanKildee/status/ 1346907565482004495; Rose Minutaglio, Rep. Susan Wild On The `Sheer Panic' She Felt In That Viral Photo, Elle (Jan. 7, 2021), https://newsopener.com/fashion/rep-susan-wild-on-the- sheer-panic-she-felt-in-that-viral-photo/; CBS News, Video Shows Members of Congress Taking Cover in House Gallery, (Jan. 6, 2021), https://ft.cbsnews.com/video/video-shows- members-of-congress-taking-cover-in-house-gallery-cbsnews- special-report-2021-01-06/.

133. Haley Britzky, This Army Ranger-turned-Congressman was last out of the House chamber during the Capitol riots, Task and Purpose (Jan. 7, 2021), https://taskandpurpose.com/news/ jason-crow-army-ranger-capitol-riots/.

134. Ibid.

135. CBS News, Video shows members of Congress taking cover in House gallery, CBS (Jan. 6, 2021), https:// www.cbsnews.com/video/video-shows-members-of-congress-taking- cover-in-house-gallery-cbsnews-special-report-2021-01-06/.

136. Julia Jacobo, A visual timeline on how the attack on Capitol Hill unfolded, ABC News (Jan. 10, 2021), https:// abcnews.go.com/US/visual-timeline-attack-capitol-hill- unfolded/story?id=75112066.

137. 2 David K. Li & Ali Gostanian, Georgia Lawyer Said He Kicked in Pelosi's Door, She Could've Been `Torn into Little Pieces', NBC News (Jan. 19, 2021), https://www.nbcnews.com/ news/us-news/georgia-lawyer-said-he-kicked-pelosi-s-door-she- could-n1254756.

138. Ashley Parker et al., How the Rioters Who Stormed the Capitol Came Dangerously Close to Pence, Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/politics/pence-rioters- capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b- f1381ef3d207_story.html.

139. Peter Baker et al., Pence Reached His Limit with Trump. It Wasn't Pretty, N.Y. Times (Jan. 12, 2021).

140. Lauren Leatherby et al., How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/interactive/2021/01/12/us/capitol- mob-timeline.html.

141. Maggie Haberman & Jonathan Martin, After the Speech: What Trump Did as the Capitol Was Attacked, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/ trump-capitol-riot.html.

142. Lexi Lonas, Sasse says Trump was `delighted' and `excited' by reports of Capitol, The Hill (Jan. 8, 2021), https://thehill.com/homenews/senate/533403-sasse-says-trump- was-delighted-and-excited-by-reports-of-capitol-riot.

143. Sunlen Serfaty et al, As riot raged at Capitol, Trump tried to call senators to overturn election, CNN (Jan. 8, 2021), https://www.cnn.com/2021/01/08/politics/mike-lee- tommy-tuberville-trump-misdialed-capitol-riot/index.html.

144. Judge G. Michael Harvey, Special Agent James Soltes Affidavit, (Jan. 8, 2021), at 3 https://www.justice.gov/usao- dc/case-multi-defendant/file/1364486/download; Alan Feurer & Nicole Hong, `I Answered the Call of My President': Rioters Say Trump Urged Them On, N.Y. Times (Jan. 17, 2021), https:// www.nytimes.com/2021/01/17/nyregion/protesters-blaming-trump- pardon.html.

145. Dan Barry et al., `Our President Wants Us Here': The Mob That Stormed the Capitol, N.Y. Times (Jan. 9, 2021), https://www.nytimes.com/2021/01/09/us/capitol-rioters.html.

146. David Begnaud (@DavidBegnaud), Twitter (Jan. 15, 2021, 8:30 PM) https://twitter.com/DavidBegnaud/status/ 1350254179218911232.

147. Kyle Cheney & Josh Gerstein, Judge orders Proud Boy charged in Capitol riot held without bond, Politico (Feb. 10, 2021), https://www.politico.com/news/2021/02/10/proud-boy- insurrection-trump-468353.

148. Shelly Tan et al., How One of America's Ugliest Days Unraveled Inside and Outside the Capitol, Wash. Post (Jan. 9, 2021), https://www.washingtonpost.com/nation/interactive/ 2021/capitol-insurrection-visual-timeline/.

149. Ibid.

150. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep. on Constitutional Grounds for Presidential Impeachment 27 (Comm. Print 1974).

151. U.S. Const. amend. I.

152. Roth v. United States, 354 U.S. 476, 482 (1957).

153. Victoria L. Killion, The First Amendment: Categories of Speech, CRS (Jan. 16, 2019), https:// crsreports.congress.gov/product/pdf/IF/IF11072.

154. Brandenburg v. Ohio, 395 U.S. 444 (1969).

155. Ibid.

156. Ibid.

157. Hess v. Indiana, 414 U.S. 105, 110 (1973).

158. Id. at 107.

159. Id. at 108-109.

160. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

161. Id. at 886.

162. Id. at 927.

163. Id. at 928.

164. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).

165. Cornell Law, GARCETTI v. CEBALLOS (No. 04-473), Legal Inf. Inst. (May 30, 2006), https://www.law.cornell.edu/supct/ html/04-473.ZS.html.

166. Ibid.

167. Rosalind S. Helderman et al, `Trump said to do so': Accounts of rioters who say the president spurred them to rush the Capitol could be pivotal testimony, Wash. Post (Jan. 16, 2021), https://www.washingtonpost.com/politics/trump- rioters-testimony/2021/01/16/01b3d5c6-575b-11eb-a931- 5b162d0d033d_story.html.

168. 167 Cong. Rec. S659 (daily ed. Feb. 11, 2021) (statement of Mr. Manager Raskin), https://www.congress.gov/ 117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.

169. Washington Papers, The Electoral Count for the Presidential Election of 1789, University of Virginia, (https://washingtonpapers.org/resources/articles/the- electoral-count-for-the-presidential-election-of-1789/.

170. National Archives, 2020 Electoral College Results, National Archives and Records Administration (2020), https:// www.archives.gov/electoral-college/2020.

171. Mark Sherman, Associated Press, Biden clears Electoral College 270-vote threshold to become president, PBS News (Dec. 14, 2020), https://www.pbs.org/newshour/politics/biden- clears-electoral-college-270-vote-threshold-to-become- president.

172. Ibid.

173. John Wagner et al, Pence declares Biden winner of the presidential election after Congress finally counts electoral votes, Wash. Post (Jan. 7, 2021), https:// www.washingtonpost.com/politics/2021/01/06/congress- electoral-college-vote-live-updates/.

174. William Cummings et al, By the numbers: President Donald Trump's failed efforts to overturn the election, USA Today (Jan. 6, 2021), https://www.usatoday.com/in-depth/news/ politics/elections/2021/01/06/trumps-failed-efforts-overturn- election-numbers/4130307001/.

175. Matt Zapotosky & Devlin Barrett, Barr clears Justice Dept. to investigate alleged voting irregularities as Trump makes unfounded fraud claims, Wash. Post (Nov. 9, 2020), https://www.washingtonpost.com/national-security/trump- voting-fraud-william-barr-justice-department/2020/11/09/ d57dbe98-22e6-11eb-8672-c281c7a2c96e_story.html.

176. Jess Bravin & Sadie Gurman, Trump Pressed Justice Department to Go Directly to Supreme Court to Overturn Election Results, W.S. Journal (Jan. 23, 2021), https:// www.wsj.com/articles/trump-pressed-to-change-justice- department-leadership-to-boost-his-voter-fraud-claims- 11611434369.

177. Michael Crowley et al, In his first one-on-one interview since losing to Biden, Trump baselessly cast more conspiracy theories, N.Y. Times (Dec. 23, 2020), https:// www.nytimes.com/live/2020/11/29/us/joe-biden-trump#in-his- first-one-on-one-interview-since-losing-to-biden-trump- baselessly-cast-more-conspiracy-theories.

178. Kadhim Shubber, William Barr Election Memo--November 9, Financial Times (Nov. 9, 2020), https:// beta.documentcloud.org/documents/20403358-william-barr- election-memo-november-9.

179. Katie Benner & Adam Goldman, Federal Prosecutors Push Back on Barr Memo on Voter Fraud Claims, CNN (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/us/politics/justice- department-voter-fraud.html.

180. Kate Benner, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General, N.Y. Times (Jan. 22, 2021), https://www.nytimes.com/2021/01/22/us/ politics/jeffrey-clark-trump-justice-department- election.html.

181. Ibid.

182. U.S. Const. art. II, Sec. 1, cl. 2.

183. Electoral Count Act, Pub.L. 49-90.

184. NCSL, The Electoral College, (Nov. 11, 2020), https:// www.ncsl.org/research/elections-and-campaigns/the-electoral- college.aspx.

185. Peter Alexander et al, Trump invites Michigan GOP lawmakers to White House after calling officials in key county, NBC News (Nov. 19, 2020), https://www.nbcnews.com/ politics/2020-election/trump-called-michigan-republicans- they-sought-rescind-their-certification-votes-n1248254.

186. Nick Niedzwiadek et al, After Trump meeting, Michigan GOP leaders say Biden's win still stands, Politico (Nov. 20, 2020) https://www.politico.com/news/2020/11/20/michigan-gop- dc-trump-election-438690; & Ursula Perano, Trump called Michigan Republican who wanted to flip vote on Wayne County election certification, Axios (Nov. 19, 2020), https:// www.axios.com/trump-called-wayne-county-republican-michigan- vote-ff545fb1-657a-4016-939d-015e5289e894.html.

187. Anita Kumar & Gabby Orr, Inside Trump's pressure campaign to overturn the election, Politico (Dec. 21, 2020), https://www.politico.com/news/2020/12/21/trump-pressure- campaign-overturn-election-449486.

188. 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), https://www.washingtonpost.com/politics/trump-pennsylvania- speaker-call/2020/12/07/d65fe8c4-38bf-11eb-98c4- 25dc9f4987e8_story.html.

189. Alison Durkee, Trump Campaign Assembling Alternate Electors in Key States in Far-Fetched Attempt to Overturn Election, Forbes (Dec. 14, 2020), https://www.forbes.com/ sites/alisondurkee/2020/12/14/trump-campaign-assembling- alternate-electors-in-key-states-in-far-fetched-attempt-to- overturn-election/?sh=66a9659b3213.

190. Deanna Paul, Republican Electors Cast Unofficial Ballots, Setting Up Congressional Clash, Wall St. J. (Dec. 28, 2020), https://www.wsj.com/articles/republican-electors- cast-unofficial-ballots-setting-up-congressional-clash- 11609164000.

191. Rick Hasen, Trump Campaign Planning on Sending Alternative Slate of Electors to Congress, Per Stephen Miller. It Won't Matter to the Outcome. Election Law Blog (Dec. 14, 2020), https://electionlawblog.org/?p=119632.

192. Anita Kumar & Gabby Orr, Inside Trump's pressure campaign to overturn the election, Politico (Dec. 21, 2020), https://www.politico.com/news/2020/12/21/trump-pressure- campaign-overturn-election-449486.

193. Amy Gardner, `I just want to find 11,780 votes': In extraordinary hour-long call, Trump pressures Georgia secretary of state to recalculate the vote in his favor, Wash. Post (Jan. 3, 2021), https://www.washingtonpost.com/ politics/trump-raffensperger-call-georgia-vote/2021/01/03/ d45acb92-4dc4-11eb-bda4-615aaefd0555_story.html.

194. The New York Times, Transcript: Mr. Trump's Phone Call With Georgia Election Officials, N.Y. Times (Jan. 3, 2021), https://www.nytimes.com/2021/01/03/us/politics/trump- raffensperger-georgia-call-transcript.html.

195. Ibid.

196. Miles Parks, Georgia Election Official: Don't Let Misinformation `Suppress Your Own Vote', NPR (Jan. 4, 2021), https://www.npr.org/2021/01/04/ 953321408/georgia-election-official-dont-let-misinformation- suppress-your-own-vote.

197. U.S. Const. art. II, Sec. 1.

198. Michael Schmidt, Trump Says Pence Can Overturn His Loss in Congress. That's Not How It Works, N.Y. Times (Jan. 5, 2021), https://www.nytimes.com/2021/01/05/us/politics/ pence-trump-election.html.

199. Maggie Haberman & Katie Benner, Justice Dept. Asks Judge to Toss Election Lawsuit Against Pence, N.Y. Times (Dec. 31, 2020), https://www.nytimes.com/2020/12/31/us/ politics/justice-department-mike-pence-louie-gohmert.html.

200. Caroline Linton, Judge dismisses Gohmert's attempt to force Pence to decide election results, CBS (Jan. 3, 2021), https://www.cbsnews.com/news/louie-gohmert-trump-election- lawsuit-pence-dismissed-federal-judge/.

201. Nick Niedzwiadek & Kyle Cheney, Trump pressures Pence to throw out election results--even though he can't, Politico (Jan. 5, 2021), https://www.politico.com/news/2021/01/05/ trump-pressures-pence-election-results-455069.

202. Ibid.

203. Josh Dawsey & Ashley Parker, Inside the remarkable rift between Donald Trump and Mike Pence, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/politics/trump- pence-breakuo-capitol-riot/2021/01/11/6a6aa052-5357-11eb- 89bc-7f51ceb6bd57_story.html.

204. Ibid.

205. Jeff Mason, Despite Trump pressure, Pence will not block Biden's election certification: advisers, Reuters (Jan. 4, 2021), https://www.reuters.com/article/us-usa-election- pence/despite-trump-pressure-pence-will-not-block-bidens- election-certification-advisers-idUSKBN29A2J0.

206. Quint Forgey, `Do it Mike': Trump leans on Pence to reject Biden's Electoral College certification, Politico (Jan. 6, 2021), https://www.politico.com/news/2021/01/06/do- it-mike-trump-leans-on-pence-to-reject-bidens-electoral- college-certification-455319.

207. Ashley Collman, Trump is still wrongly insisting that Pence can change the election result, and he called a New York Times report that said otherwise `fake news', Bus. Insider (Jan. 6, 2021), https://www.businessinsider.com/ trump-wrongly-insisting-pence-can-overturn-election2021-1.

208. Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial, NPR (Feb. 10, 2021), https:// www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a- key-part-of-impeachment-trial.

209. John Haltiwaner, Trump attacks Pence for not having the `courage' to overturn the election as the president's supporters storm the Capitol, Bus. Insider (Jan. 6, 2021), https://www.businessinsider.com/trump-attacks-pence-for-not- having-courage-to-overturn-election-2021-1.

210. https://www.congress.gov/117/crec/2021/02/10/CREC- 2021-02-10-pt1-PgS615-4.pdf (S626).

211. Paul Kane & Scott Clement, Just 27 congressional Republicans acknowledge Biden's win, Washington Post survey finds, Wash. Post (Dec. 5, 2020), https:// www.washingtonpost.com/politics/survey-who-won-election- republicans-congress/2020/12/04/1a1011f6-3650-11eb-8d38- 6aea1adb3839_story.html.

212. Anita Kumar & Gabby Orr, Inside Trump's pressure campaign to overturn the election, Politico (Dec. 21, 2020), https://www.politico.com/news/2020/12/21/trump-pressure- campaign-overturn-election-449486.

213. Ibid.

214. Daniella Diaz, READ: Brief from 126 Republicans supporting Texas lawsuit in Supreme Court, CNN (Dec. 11, 2020), https://www.cnn.com/2020/12/10/politics/read-house- republicans-texas-supreme-court/index.html.

215. Adam Liptak, Supreme Court Rejects Texas Suit Seeking to Subvert Election, N.Y. Times (Dec. 11, 2020), https:// www.nytimes.com/2020/12/11/us/politics/supreme-court- election-texas.html.

216. Andrew Solender, Nearly a Dozen Republican Senators Will Object to Electoral College Vote, Forbes (Jan. 2, 2021), https://www.forbes.com/sites/andrewsolender/2021/01/02/ nearly-a-dozen-republican-senators-will-object-to-electoral- college-vote/?sh=7965a5881c3e.

217. Jake Tapper, At least 140 House Republicans to vote against counting electoral votes, two GOP lawmakers say, CNN (Dec. 31, 2020), https://www.cnn.com/2020/12/31/politics/ electoral-college-house-republicans/index.html.

218. Dareh Gregorian, Congress is set to count the Trump- Biden Electoral College votes. Here's the lowdown, ABC News (Jan. 5, 2021), https://www.nbcnews.com/politics/2020- election/congress-set-count-trump-biden-electoral-college- votes-here-s-n1252609.

219. Meryl Kornfield, From a presidential commission to Trump-nominated judges, here's who has rebuked Trump's voter fraud claims, Wash. Post (Jan. 3, 2021), https:// www.washingtonpost.com/politics/2021/01/03/voter-fraud/.

220. GCC et al, Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executive Committees, CISA (Nov. 12, 2020), https://www.cisa.gov/news/2020/11/12/joint- statement-elections-infrastructure-government-coordinating- council-election.

221. Katie Benner & Michael S. Schmidt, Barr Acknowledges Justice Dept. Has Found No Widespread Voter Fraud, N.Y. Times (Dec. 1, 2020), https://www.nytimes.com/2020/12/01/us/ politics/william-barr-voter-fraud.html.

222. The Avalon Project, Madison Debates, Yale Law School Lillian Goldman Law Library (Jul. 20, 1787), https:// avalon.law.yale.edu/18th_century/debates_720.asp.

223. Id. at 64.

224. Ibid.

225. U.S. Const. amend. XX, Sec. 1.

226. Sara Georgini, How John Adams Managed a Peaceful Transition of Presidential Power, Smithsonian Mag. (Dec. 7, 2020), https://www.smithsonianmag.com/history/how-john-adams- managed-peaceful-transition-presidential-power-180976451/.

227. 167 Cong. Rec. S627 (daily ed. Feb. 11, 2021) (statement of Mr. Manager Lieu), https://www.congress.gov/ 117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf (S627).

228. The Federalist Paper No. 47 (James Madison) (Jacob E. Cooke ed., 1961).

229. See generally The Federalist Paper No. 47 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist Paper No. 48 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist Paper No. 49 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist Paper No. 50 (James Madison) (Jacob E. Cooke ed., 1961; The Federalist Paper No. 51 (James Madison) (Jacob E. Cooke ed., 1961). (Federalist Papers No. 47 through No. 51 explain how the Executive, Legislative, and Judicial Branches were to be wholly separated from each other, yet accountable to each other through a system of checks and balances.); See also Nixon v. Administrator of General Services, 433 U.S. 425, 426 (1977). (In Nixon v. GSA, the Supreme Court articulated the test for a violation of the separation of powers as occurring when the action of one branch ``prevents [another branch] from accomplishing its constitutionally assigned functions.'')

230. U.S. Const. art. II, Sec. 3.

231. 167 Cong. Rec. S641-S643 (daily ed. Feb. 10, 2021) (statement of Mr. Manager Castro), https://www.congress.gov/ 117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf.

232. 167 Cong. Rec. S641-S642 (daily ed. Feb. 10, 2021) (statement of Mr. Manager Castro). https://www.congress.gov/ 117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf (S641- S642).

233. 167 Cong. Rec. S642 (daily ed. Feb. 10, 2021) (statement of Mr. Manager Castro). https://www.congress.gov/ 117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf.

234. Matt Stieb, Pence, Not Trump, Gave Order to Activate National Guard: Report, Intelligencer, N.Y. Mag. (Jan. 6, 2021), https://nymag.com/intelligencer/2021/01/pence-not- trump-activated-the-national-guard-report.html.

235. U.S. Const. art. II, Sec. 1, cl. 8.

236. 167 Cong. Rec. S662 (daily ed. Feb. 11, 2021) (statement of Mr. Manager Raskin). https://www.congress.gov/ 117/crec/2021/02/11/CREC-2021-02-11-pt1-PgS645-2.pdf.

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