On Jan. 6, President Trump spoke at a political rally in Washington, D.C. and told thousands of his supporters that “our election victory [was] stolen by emboldened radical left Democrats” and “we will never concede” but rather “we will fight” and “we will stop the steal.”
He told his supporters we “need to take back our country.” He asserted that, “our country has had enough. We will not take it anymore” and with his audience in total agreement, he said, “I know that everyone here will soon be marching over to the Capitol.”
After his supporters received their endorsement from the President of the United States, they marched to the U.S. Capitol. A mob of thousands breached the U.S. Capitol Police barriers, fought, and overwhelmed the Capitol Police officers at the door of the U.S. Capitol, and ransacked and took possession of the U.S. Capitol building for at least 4 hours.
Between the speech by President Trump and the taking of the Capitol building, a joint session of Congress had convened for the constitutional and ceremonial counting of the electoral college votes from the states in order to certify that Joseph Biden had won the November election.
In attendance was the Vice President of the United States, the Speaker of the House, and the entire Congress from both chambers. Other than the annual State of the Union, it’s the only time both chambers of Congress with all its constitutional and elected officers and members meet in one place and one time.
Trump had told his supporters for at least two weeks that the Vice President had the authority to reject the votes from four states he said had stolen the election from him in favor of Biden. They believed him despite the constitutional fact that the Vice President had no such authority. But we will leave the lack of civics education among them for another discussion.
When the Vice President made it clear that he would not reject the votes, Trump’s supporters felt that this was the final betrayal and rioted and took the U.S. Capitol.
A week later, to the day, the House of Representatives impeached Trump for incitement of insurrection. The Article of Impeachment asserted, Trump “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol…. Thus incited by President Trump, members of the crowd he had addressed… injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive and seditious acts.”
It is a maxim in law that a person is responsible for his actions. To be found criminally culpable a person must decide to do evil (mens rea) and then do an evil act. There are definitions of mens rea; intentionally, knowingly, recklessly, and negligently.
Recklessly occurs if you knew of the risk that some harm would occur as a result of what you are doing and you did it anyway but did not want to cause the specific harm that occurred. Negligently occurs if you truly did not know what you were doing would cause harm, but the law imposes on you the responsibility to know.
The Article asserts that Trump’s speech resulted in a riot and attack on the Capitol as any reasonable president in his situation would have or should have known. That’s the “in context, encouraged — and foreseeably resulted in” language in the Article.
The House impeachment managers will have to convince the 66 Senators that in the political environment that existed on Jan. 6, Trump knew or should have known that his supporters would riot after hearing his speech.
But in criminal law there is another issue — jurisdiction. A court must have the legal authority to hear the case and have legal authority over the parties in the case.
Here is the problem. The Senate is not going to conduct the trial until after Biden takes the oath of office and Trump leaves. This means the Senate will hold a trial of person not in office.
In the Senate, under the Constitution, “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.”
A literal reading of the text means that the person tried must be in office to be removed and be subjected to disqualification. If Trump is out of office when the Senate convenes, to use a criminal law analogy, he would be entitled to argue for a motion to dismiss the case for lack of court jurisdiction. Trump would also have a right to assert the case is moot because he is no longer president.
The counter argument, textually, is that disqualification is independent of removal. Thus, Trump can be convicted for inciting a riot and insurrection and the punishment of disqualification is still available. No president has been subjected to an impeachment trial in the Senate under this theory.
Like everything else that was the Trump presidency, this second impeachment is a challenge to American presidential norms dating back centuries.
Arthur Garrison is an associate professor of criminal justice at Kutztown University and author of the upcoming book, "Chained to the System: The History and Politics of Black Incarceration in America."