The Trial of Donald Trump

This post first appeared at BillMoyers.com on February 5, 2021.

BY STEVEN HARPER

[Editor’s Note: STEVEN HARPER is a fellow of the American College of Trial Lawyers]

Opening Statement

“How did this happen in America?”

The answer led the House of Representatives to impeach then-President Donald Trump by the largest bipartisan vote in American history. Today we continue the process of holding him accountable for incitement of insurrection against the government of the United States. The Trump Insurrection led directly to at least five deaths, injuries to 140 law enforcement officers and a scar on the heart of our democracy.

So that we all operate from the same set of indisputable facts, let’s watch four short videos overviewing the events of January 6, starting with Just Security’s 10-minute excerpt of Trump’s 70-minute speech, which ignited an insurrection that Trump had fomented for months. Notice the mob’s reaction as Trump spoke line after incendiary line.

The second video is the Washington Post’s 14-minute encapsulation of the 41 minutes that followed Trump’s diatribe.

The third video, taken by a reporter for The New Yorker, is a view from inside the mob.

The fourth and final video comes from the bodycam of a law enforcement officer trying to protect the citadel of democracy that day. Watch the mob beat him with hockey sticks and flagpoles ripped from the temporary presidential inauguration structure.

Everything that you just saw and heard actually – indisputably – happened on January 6, 2021 in the United States of America. How did it come to this? 

The story begins six months earlier.

The Documentary Evidence

Let the evidence speak for itself.

  • Hours of incriminating video show Trump in his own words, first telling his followers that the election will be rigged unless he wins, and then, after a landslide defeat, telling them that the election was stolen because he lost. Here’s a sample
  • Trump personally pressured legislators and election officials to reverse the outcome in swing states that he lost, including Pennsylvania and Michigan. Shortly before Arizona Governor Doug Ducey (R) signed his state’s certification of Biden’s win, Trump placed a call to him too. But Ducey refused to take it, earning him a spot on Trump’s list of enemies attacked in future speeches and tweets. As we’ll see in a moment, Georgia was Trump’s final play on that field.
  • Trump’s attacks on the free and fair election failed in court too. Here are the more than 60 legal challenges that Trump lost after failing to present any evidence of the widespread fraud that he claimed was responsible for his defeat. Even Trump’s loyal attorney general, William Barr, said that Trump had no basis for reversing Biden’s win.

But Trump wasn’t willing to abide by the judicial branch’s reaffirmation of his election loss. As court after court rejected his claims, he was pursuing a final backup plan – an attack on the legislative branch that, if successful, would nullify the will of the voters and all of his courtroom losses. The Trump Insurrection targeted January 6 when a joint session of Congress would certify President-elect Joseph Biden’s win.

In mid-December, Trump began actively promoting the “Save America – Stop the Steal” rally. Look at this sample of his tweets:

  • Dec. 12, 2020: “Wow! Thousands of people forming in Washington (D.C.) for Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA”!
  • Dec. 19, 2020: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”
  • Dec. 26, 2020: – “The ‘Justice’ Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud, the biggest SCAM in our nation’s history, despite overwhelming evidence. They should be ashamed. History will remember. Never give up. See everyone in D.C. on January 6th.”
  • Dec. 27, 2020: “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow.”
  • Jan. 1, 2021: “The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

Trying desperately to create a false cloud over the election outcome in at least one swing state, Trump focused on Georgia. On January 2, he called Georgia Secretary of State Brad Raffensperger – a Trump supporter who had contributed to the campaign. Listen as he pressured Raffensperger to reverse the will of Georgia voters and threatened criminal prosecution if Raffensperger failed to comply:

  • “And you are going to find that they [the ballots] 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. And that’s a big risk…”
  • “I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state”
  • “You know, and I watched you this morning and you said, uh, well, there was no criminality. But I mean, all of this stuff is very dangerous stuff. When you talk about no criminality, I think it’s very dangerous for you to say that.”

And now let’s listen to what Raffensperger – a Trump supporter – told him.

  • “President Trump, we’ve had several lawsuits, and we’ve had to respond in court to the lawsuits and the contentions. We don’t agree that you have won…Well, Mr. President, the challenge that you have is the data you have is wrong.’”

Getting nowhere with Raffensperger, the Trump Insurrection plan moved forward. On January 3, the day after his call with Raffensperger, he replied to a #StoptheSteal tweet from one of the rally organizers.

  • “I will be there. Historic day!”

At the same time, Trump was pressuring Vice President Mike Pence relentlessly. He wanted Pence to defy the Constitution and, as presiding officer of the January 6 joint session, block final congressional certification of the election.

Danger was in the air. As Trump was tweeting on January 3, the US Capitol Police warned of the potential for violence at the rally, with “Congress itself” as the target.

On January 4, the National Park Service increased the crowd estimate on the rally permit from 5,000 to 30,000. The US Capitol Police chief asked for permission to put the National Guard on emergency standby, but was denied.

And take a look at the unusual memo that Acting Secretary of Defense Christopher Miller – whom Trump had installed shortly after every major news organization had called the election in Biden’s favor – issued that day to his secretary of the army. It required Miller’s personal authorization before the DC National Guard could employ “riot control agents” and other tactics, including “ballistic protection equipment such as helmets and body armor.”

January 5 was a busy day:

  • The FBI office in Norfolk, Virginia warned that extremists were preparing to travel to Washington to commit violence and “war” and shared that warning with counterparts in Washington.
  • The DC Metropolitan Police arrested a leader of Proud Boys – a group of devoted Trump followers – who was in possession of high capacity firearm magazines.
  • Someone placed explosive devices outside the offices of the Republican and Democratic national committees, although the devices weren’t found until the next day.
  • And White House Political Director Brian Jack was lining up Trump loyalists to speak at the rally. Members of the 2020 Trump campaign and former Trump White House staffers had been organizing it for weeks. 

On the morning of January 6 – Trump Insurrection Day – he got an early start with a tweet at 8:17 a.m. that put Pence in the crosshairs.

  • “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Later that morning, Pence told Trump that he would not comply with his unconstitutional demand to overturn the election. As Trump prepared to speak at the rally, his surrogates warmed up the crowd – actively promoting insurrection. Look at the video:

  • Donald Trump Jr.: “If you’re going to be the zero and not the hero, we’re coming for you, and we’re going to have a good time doing it.”

Now that you have the context of the timeline, let’s watch and listen to key excerpts from Trump’s speech again. It began shortly before noon.

  • “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved.”
  • “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer, and we want to be so nice. We want to be so respectful of everybody, including bad people. We’re going to have to fight much harder and Mike Pence is going to have to come through for us. If he doesn’t, that will be a sad day for our country because you’re sworn to uphold our constitution.”
  • “Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down, and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going to walk down to the Capitol and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
  • “Mike Pence, I hope you’re going to stand up for the good of the Constitution and the good of our country.” (12:49 p.m.)
  • “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
  • “We’re going to the Capitol and we’re going to try and give…[W]e’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”

At 1:26 p.m. – less than 30 minutes after Trump’s speech had ended – his mob had already reached the Capitol and the US Capitol Police ordered the evacuation of the complex. 

At 1:34 p.m. DC Mayor Muriel Bowser asked the secretary of the army for more federal help to deal with the mob. Almost an hour later, Acting Defense Secretary Miller still had not approved the request.

At 1:49 p.m. Trump was so proud that his incitement had succeeded, he retweeted a video of his speech.

Trump didn’t appear publicly until 4:17 p.m. – three hours after the attack began. Rather than condemn his insurrectionists, he tweeted a video to the mob, saying: “I know your pain. I know you’re hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side…It’s a very tough period of time. There’s never been a time like this where such a thing happened where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil.”

And at 6:01 p.m. Trump tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Inside the Insurrection

Now let’s hear live testimony from law enforcement witnesses:

  • A US Capitol police officer who saw the mob attack and kill 42-year-old officer Brian Sicknick with a fire extinguisher.
  • The DC Metropolitan police officer who was dragged from the Capitol building and beaten.
  • Officer Daniel Hodges, who got crushed in a doorway as insurrectionists tried to tear off his mask.
  • Officer Michael Fanone, who heard insurrectionists shout, “Kill him with his own gun.”
  • US Capitol police officer Eugene Goodman, who knew that Pence was hiding less than 100 feet away when he led the mob chasing him in the opposite direction from 2:20 p.m. to 2:25 p.m. As that was happening – at 2:24 p.m. – Trump tweeted:

“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!” 

Here’s a clip showing the crowd chanting “Hang Mike Pence,” the mob’s makeshift gallows, and Goodman’s heroism.

  • An official who can describe the massive police casualties resulting from the Trump Insurrection, including:
  • 81 Capitol Police officers who were assaulted during the siege.
  • About 65 DC police officers who suffered injuries such as cracked ribs, crushed spinal discs, stab wounds from a metal fence stake, concussions from head blows with objects that include metal poles ripped from inauguration-related scaffolding and even a pole with an American flag attached. Other injuries included swollen ankles and wrists, bruised arms and legs, and irritated lungs from bear and pepper spray.
  • 38 Capitol Police employees who tested positive for the coronavirus in the three weeks after responding to the riot.

Let’s also hear from these elected representatives and their staffs:

  • Pelosi’s staffers who hid under a conference room table as the approaching mob shouted, “Where’s Nancy? Where the f*ck is Nancy?” and “We’re here for you, Nancy.” Look again at the Washington Post video at around 2:28 p.m., when a staffer heard the mob in the hallway and whispered, “They’re pounding the doors, trying to find her.”
  • Rep. Byron Donalds (R-FL), who heard the mob around 2:40 p.m., pounding on the barricaded doors to the House chamber as members and staff evacuated. Which Republicans were with him at the time?
  • Sen. Ben Sasse (R-NE) who had conversations with Trump aides telling him that Trump was delighted with the attack as it was happening and that he didn’t understand why his aides weren’t equally thrilled. Who were those aides? Which Republicans hid with him during the siege?
  • Sen. Mike Lee (R-UT), who received a phone call around 2:00 p.m., when Trump called him by mistake as he was intending to pressure Sen. Tommy Tuberville (R-AL) into making additional objections to congressional certification of the election. Where was he hiding from the mob when Trump’s call with Tuberville was cut short because the group had to move to a more secure location? Which Senate Republicans were hiding with him?

At 7:00 p.m., dozens of police officers had been injured in the Trump Insurrection, and people had died when Sen. Lee got another call intended for Sen. Tuberville. This time, Rudy Giuliani called the same wrong number that Trump had called when he mistakenly reached Sen. Lee five hours earlier. Giuliani left this message on Sen. Lee’s phone:

“Sen. Tuberville? Or I should say Coach Tuberville. This is Rudy Giuliani, the president’s lawyer. I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. I know they’re reconvening at eight tonight, but it…the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow — ideally until the end of tomorrow.”

The Immediate Aftermath

Now let’s hear from elected representatives reflecting on what happened that day:

  • Sen. Mitch McConnell (R-KY). Which Republicans were hiding with him that afternoon? Were they they all trying desperately to reach members of the Trump administration for help? Whom did they reach?

Let’s look at a video excerpt of his January 19 speech from the Senate floor:

“The mob was fed lies.” What were the lies? And since he used the passive voice, who fed those lies to the mob?

“They were provoked by the president and other powerful people.” How did Trump provoke the mob? And who are the “other powerful people” he referenced?

And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like.” Is that how American democracy is supposed to work after an election?

What blowback has he received from Trump and fellow Republicans after making that statement?

  • Rep. Jason Crow (D-CO), who on January 13 said, “I had a lot of conversations with my Republican colleagues…A couple of them broke down in tears…saying that they are afraid for their lives if they vote for this impeachment.” Does he feel safe naming those colleagues now?
  • Rep. Liz Cheney (R-WY), the No. 3 ranking Republican in the House, who took a stand against Trump and voted to impeach him. Let’s hear her statement again:

“On January 6, 2021 a violent mob attacked the United States Capitol to obstruct the process of our democracy and stop the counting of presidential electoral votes. This insurrection caused injury, death and destruction in the most sacred space in our Republic.

“‘Much more will become clear in coming days and weeks, but what we know now is enough. The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” 

What blowback has she received from Trump and fellow Republicans after telling the truth and voting to impeach Trump?

What recriminations have the other nine Republicans in the House endured since joining with Rep. Cheney in voting to impeach Trump?

  • Finally, let’s hear from an expert witness who can confirm the broad scholarly consensusthat the Senate has the power to try, convict and ban from future office an impeached former president who incited an insurrection while president.

Closing Argument

This time the Trump Insurrection failed. But America can’t risk a sequel. After a successful attack on democracy, no one is left to hold the perpetrators accountable.

So now you know the answer to the question – “How did this happen in America?” But you also know that there’s a more urgent one: “Are there enough Republicans in the Senate willing to keep it from happening again?”


RELATED:

UPDATED: Insurrection Timeline – First the Coup and Then the Cover-Up

Listen to Steven Harper and Bill Moyers in Conversation.  December 10, 2020

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