The memo (pdf), which was due on Tuesday, alleges that Trump incited the mob which breached the U.S. Capitol on Jan. 6 by challenging the results of the 2020 presidential election. The Democrats memo also presents an argument for why the trial is Constitutional even though Trump is now a private citizen.
Trump’s Save America political action committee did not respond to an emailed request for comment. In a speech given on the day of the Capitol breach, the president urged his followers to make their voices heard peacefully. Trump was also quick to condemn the violence and to call on supporters to go home.
“After months of spreading his Big Lie that he won a landslide victory in the 2020 election, leading up to and on January 6, 2021, President Trump summoned, assembled, and incited a violent mob that attacked the Capitol, cost the lives of three police officers and four other people, threatened the Vice-President and Congress, and successfully halted the counting of the Electoral College vote,” the Democrat impeachment managers alleged in a joint statement (pdf) accompanying the brief.
The trial memorandum cites partial, selectively edited sentences from Trump’s Jan. 6 speech in Washington as evidence that he incited an insurrection. For example, the Democrats claim that Trump exhorted followers to “fight like hell [or] you’re not going to have a country anymore.”
Trump had actually said in reference to his team’s courtroom efforts challenging the outcome of the election: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
The trial memo also selectively quotes Trump saying: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
The memo fails to include the previous sentence from Trump’s speech, which made it clear that he was addressing senators when he spoke of having “to be strong.”
“We’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them,” Trump said immediately prior to the statement cited by the Democrats.
The trial memo argued that trying Trump in the Senate is Constitutional because the framers of the Constitution envisioned the prospect of a former official being tried after leaving office. The Democrats cite examples from British and colonial history in which former officials were tried.
“As revolutionaries who overthrew a king, the Framers obsessed over protecting their young Republic from the abuse of power. Based on the history of impeachment in England and the early American states, they would have considered it self-evident that a former official like President Trump could be impeached and tried for high crimes and demeanors he had committed in office,” the trial memo states.
Forty-five Republican senators voted for a resolution calling the Senate trial unconstitutional because Trump is no longer president. Democrats would need to change the minds of 17 Republicans in order to secure Trump’s conviction, which would pave the way for blocking the former president from ever holding public office.
Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) on Feb. 1 warned his Democratic colleagues against calling witnesses during the trial, threatening to call on the FBI to testify in what may become a prolonged proceeding.
“If you open that can of worms, we’ll want the FBI to come in and tell us about how people pre-planned this attack and what happened with the security footprint at the Capitol. You open up Pandora’s Box if you call one witness,” Graham told Fox News on Monday.
Trump replaced his lead legal counsel over the weekend. His new team, led by lawyers David Schoen and Bruce Castor, will have just over a week to get ready before the trial begins Feb. 9.
Most Republican senators now are lining up against conviction. While few defend his actions, many argue that Congress does not have the power to impeach a former president. They also have maintained that another trial will hurt efforts to unify the country in the post-Trump era.
Senate President Pro Tempore Patrick Leahy (D-Vt.) will preside over the trial instead of Supreme Court Justice John Roberts.
Graham had also shot down a request by Sen. Dick Durbin (D-Ill.) to hold a Feb. 8 confirmation hearing for Merrick Garland, President Joe Biden’s nominee for attorney general. In a letter to Durbin, Graham wrote that a one-day confirmation hearing a day before the impeachment trial would not be sufficient.
“When the Senate’s focus is required to consider whether to bar a former president from being reelected, other business must stop. Proceeding with the confirmation of an attorney general and the impeachment of a former president at the same time would give neither the attention required,” Graham wrote.
Reuters contributed to this report.