Joe Neguse
Democratic Congressman and House Impeachment Manager Joe Neguse Credit: Screen Grab/C-Span

In a well-run courtroom, the judge makes the issues clear: What is the charge? What evidence is important? What do the lawyers need to prove? What does the trier of fact (jury, or judge in a bench trial) need to determine, to resolve the dispute?At the end of the trial, the judge lays out exactly what the jury must decide—for example, did the defendant in fact fire the fatal shot? If so, did the defendant act in self-defense? If it wasn’t in self-defense, did the defendant intend to kill the deceased? Was the killing premeditated? And so on.

This week’s Senate proceedings are, as a matter of constitutional text, a trial; but there is no judge to guide the advocates or to provide legal instructions to the Senators who must decide.

Thus, on Friday, the Senate and the nation heard the final evidence in two different cases—one laid out by the House in its Article of Impeachment and the accompanying trial brief, and the other rebutted by the lawyers for former President Donald Trump.

The House Article charges that, beginning months before the insurrection of January 6, Trump deliberately lied about the result of the election, attempted through corrupt means to invalidate it, and encouraged violence to prevent the constitutionally required certification of the electoral-vote total. His campaign apparatus spent as much as $50 million to spread the lie via advertising. He contacted state officials in contested states and pressured and threatened in an attempt to get them to set aside the vote and give him the state’s electoral votes.

As spelled out in the brief and the video evidence, he repeatedly encouraged violence against his political enemies and asked the most dangerous extremists in the country to “stand back and stand by.” He called his followers to a “wild!” rally on January 6, at which it was known to all in the government that violence was being planned, and then—aware of the intent of many in the crowd– directly told them to march on the Capitol. When they got there, the mob, predictably, turned violent—and the Vice President and the Speaker of the House were nearly assassinated. During the most dangerous hours of the assault, while five people were being killed, the President (despite desperate pleas from his allies) remained silent; he refused to call on his loyal insurgents to stop, and he did not dispatch federal law enforcement and military personnel to defend the Capitol, the members of Congress and the besieged U.S. Capitol Police. Afterwards, he sent the insurgents home with praise and the assurance that “we love you.”

As seen by the prosecution, then, the charge is that Trump engaged in a course of criminal action over months, which involved legitimization of violence, targeting of mass rage, defamation of individuals whose lives were endangered, organization of an insurrectionary gathering, passive acceptance of the violence when under way and then subsequent ratification of it once it was over.

If I were defending Trump from this charge, I would try to do what Trump’s lawyers—former Pennsylvania prosecutor Bruce Castor, Alabama litigator David Schoen, and Philadelphia lawyer Michael T. Van der Veen—attempted. Faced with vivid evidence of Trump’s course of conduct–calls for violence, repeated false claims of a stolen election, expenditure of time and money to gather a mob, knowledge that the crowd would be dangerous, and rhetoric that did nothing to discourage the violence—they refused to engage the issue.

All of that stuff, it turns out, is irrelevant—Donald Trump, they argue, is being tried for speaking the word “fight.” And since we all use the word “fight,” he can’t be guilty. Don’t believe me? Here’s a clip of Joe Biden, Kamala Harris, Nancy Pelosi, Bernie Sanders, Elizabeth Warren, Chuck Schumer and Madonna and Johnny Depp and (at one point I had to answer the door) probably His Holiness the Dalai Lama all using bad words like “fight.” To make that clearer, sometimes the video was repeatedly looped so it seemed like the speaker was saying “fight” five or six times in a row. That proves Trump is innocent. Why? Well, the word “fight” is a word. Words are speech. The First Amendment protects speech, so Trump can say “fight.”

Constricting the time frame of events is a time-honored lawyers’ tactic. In a courtroom, judges may put some limits on the freedom to distort the chronological frame of a criminal indictment. But here, the case is put to the Senate (and, equally important, the nation) as two different cases; if the past few years are any guide, it will be analyzed purely according to the pre-existing political commitments of the listeners.

In their first appearance on Tuesday, February 9, the Trump legal team proved incapable of even laying out that argument. Instead, they described a terrifying threat: One day a trial-happy Senate would come back and impeach Eric Holder. On Friday, having had time to recoup, they did get the he-said-fight argument in outline form. To them, they say, the only question is whether when Trump said “fight like hell” to the rally on January 6, these words were (1) unprotected by the First Amendment and (2) so powerful that they created a blood-crazed zombie mob that surprised everyone by assaulting the Capitol.

Thus posed, of course, the answer must be “no.” Trump’s behavior, as he claimed, was “totally appropriate” and it’s just one a jolly bad break that the criminals in the mob chose at that precise moment to run wild and engage in acts that no one deplored more than Donald Trump himself.

It’s very hard to believe that the defense presentation changed a single mind. Members of the House and Senate themselves were present on January 6 (as the defense team was not). Members of Congress know what happened. Many of the were terrified and appalled; remarkably many, however, found the breach of the Capitol to be just part of a working day that began with a spurious challenge to the electoral votes from Arizona and then—after an interlude of violence and blood—ended in a similar false challenge to the electoral votes from Pennsylvania. The aim of those challengers and the rioters alike was cancelling the results of the 2020 election. The means chosen were different; for some, parliamentary motions, for others, stun guns, bear mace, zip ties, clubs and spears, and a gallows. But the intent was the same. There’s no evidence that most of the challengers repent their actions; nor is there evidence that Donald Trump feels anything but perhaps regret that the insurrection failed.

This is the way to understand the contention that the First Amendment’s free speech clause bars the conviction of Donald Trump. There’s no doubt that Trump could tell his followers to “fight.” He might even use the word several times. And look! Look! Democrats say the word “fight” too!

But the charge is not limited to one speech on January 6. It is of a plan, and perhaps a full-fledged criminal conspiracy, initiated months before and moved forward with communications, organization, finance, and political support from Trump and his White House, which involved repeated lies and corrupt behind-the-scenes maneuvers and led predictably to a violent assault that came close to destroying our Congress.

The First Amendment doesn’t cover planning, financing, organizing, and inciting an armed attack on the United States. If you are convinced by the House’s evidence, then you will favor conviction. Or you can look the other way because what about Nancy Pelosi. Those are your choices.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.