Democrats are no longer under the thumb of Mitch McConnell. If they want to call witnesses to testify in the second impeachment trial of Donald J. Trump, they can.
But what's more: They should.
Impeachment does not necessarily require same level of proof beyond an acceptable doubt as a criminal trial. However, if the incitement charge were part of an indictment pending in federal court, the allegation lodged against Trump would likely have two elements underneath the Supreme Court's First Amendment precedent:
First, Trump must have intended to produce a crime.
Second, his words and actions must have been likely to incite or produce lawless action.
Trump's defense team claims he was simply using his First Amendment rights. So the home impeachment managers are going to have to contend with the two-part test.
The second element of the test is straightforward. As the impeachment managers' brief explains, lawlessness abounded in the wake of Trump's January 6 remarks towards the crowd he had summoned to the National Mall. It's all on tape. Soon after he said \”you'll never take back our country with weakness\” which \”[y]ou have to show strength,\” supporters shouted \”take the Capitol right now\” and \”invade the Capitol building!\” Trump responded, \”Thank you\” and then, \”So let's walk down Pennsylvania Avenue.\”
According towards the trial brief, the mob subsequently breached security barriers round the Capitol perimeter, tore down scaffolding, \”shoved and punched Capitol Cops, gouged their eyes, assaulted all of them with pepper spray and projectiles,\” \”tore off officers' helmets, beat them with batons, and deployed . . . bear spray, a chemical irritant similar to tear gas, designed to be used by hunters to fend off bear attacks.\” People in the crowd had \”sledgehammers, baseball bats, hockey sticks, crutches, flagpoles, police shields, and fire extinguishers.\” At least six handguns were recovered, in addition to \”knives, brass knuckles\” and \”a noose.\” The terrorists smashed windows to gain access to the building, shouting \”Hang Mike Pence!\” and \”Tell Pelosi we're coming for your bitch.\”
Trial witnesses could supplement this narrative with first-hand accounts of the items it was like to be there. One officer described it as being a \”medieval battle scene.\” Another led the violent crowd away from the entrance to the Senate floor. A third was caught screaming together with his head wedged in a door as they tried to keep the mob from barging through. Dozens of congressional staffers and aides suffered severe trauma and fear, as well as the members themselves. These folks' testimony would underscore the gravity from the crimes that were committed.
Also: Countless arrests have been made, with many rioters claiming both during and after the incident that they believed Trump had summoned these to take illegal action to prevent the counting of Electoral College votes for Joe Biden. House impeachment managers could call a number of them to testify, perhaps in exchange for leniency, to make the case that there would be a connection between Trump's speech and their violence. This could be important, since Trump's lawyers now declare that \”the people who criminally breached the Capitol did so of their own accord and for their own reasons.\”
Witness testimony could directly counter that assertion.
But witness testimony would also shore up the first prong of a criminal incitement charge, assuming for argument's sake that the test applies here: That Trump intended his words to achieve the effect of stoking lawlessness. One aide reportedly described Trump's behavior during the siege as that of \”a total monster.\” Another called him \”insane.\” The New York Times' Maggie Haberman reported that \”[h]e was pleased because he liked the scene.\” Senator Ben Sasse said within an interview that he has had conversations with senior White House officials and was convinced that Trump \”wanted there to be chaos.\” And disavowals notwithstanding, it looks like the Trump campaign was involved in organizing the January 6 rally that erupted in violence.
Calling Trump's former staff to testify as to his knowledge and state of mind could produce a powerful trial record which goes directly to one of the two main legal questions regarding his incitement.
If Republican senators would be willing to stipulate for the record that they believe Trump intended his words to produce a crime, then witnesses about this point might be extraneous.
But somehow I doubt that.
There are also bits of important context that witnesses can add.
The article of impeachment mentions Trump's call to Georgia Secretary of State Brad Raffensberger urging him to \”find\” votes to overturn the election. House impeachment managers could call Raffensberger to grow on Trump's state of mind regarding the election results through the tumultuous weeks of \”Stop the Steal\” lies that culminated in the insurrection.
Maryland Gov. Larry Hogan has stated publicly it took almost two hours for that Department of Defense to authorize him to transmit National Guard troops into the District once the attack happened. The Pentagon-at least in theory-answered to Mr . trump during that time. Hogan could flesh out the vital question of what role, if any, Trump took part in the spectacular failures in police force on that day. Because this, too, talks to Trump's intent.
There are downsides to calling witnesses. Many would require subpoenas-which can lead to court battles and a drawn-out trial. This may hamper the progress of President Biden's governing agenda. It would also prompt calls in the Republican caucus for their own witnesses. It isn't clear why this would help Republicans-none from the facts are on their side. However they could try to turn the trial into a circus.
The best argument against calling witnesses is that, since the Republican caucus has announced their verdict prior to the trial, Democrats should bow to political reality, and eliminate impeachment as quickly as possible.
Except that actual reality trumps political reality. If Republicans want to act as though nothing important happened on January 6 and pretend that Donald Trump cannot be held accountable for his actions, they are able to play pretend.
But the House managers must aim to talk not just to Senate Republicans, but to America. Their job is to explain to the country exactly what happened and why there ought to be consequences. If not for Mr . trump, then at least for the Republican members of Congress who, even now, still enable and lie for him–and for the ongoing vitality and legitimacy of the Constitution's system of separated powers itself.
What happened on January 6 was real. It was a crime. Trump was impeached. He is standing trial.
Call the witnesses.