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Call. Witnesses.

There was a crime. There is a trial. There should be witness testimony.
February 8, 2021
Call. Witnesses.
WASHINGTON, DC - JULY 28: The witness table is set in the room where U.S. Attorney General William Barr will testify before the House Judiciary Committee in the Congressional Auditorium at the U.S. Capitol Visitors Center July 28, 2020 in Washington, DC. In his first congressional testimony in more than a year, Barr is expected to face questions from the committee about his deployment of federal law enforcement agents to Portland, Oregon, and other cities in response to Black Lives Matter protests; his role in using federal agents to violently clear protesters from Lafayette Square near the White House last month before a photo opportunity for President Donald Trump in front of a church; his intervention in court cases involving Trump's allies Roger Stone and Michael Flynn; and other issues. (Photo by Chip Somodevilla/Getty Images)

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 the same level of proof beyond a reasonable doubt as a criminal trial. But if the incitement charge were part of an indictment pending in federal court, the allegation lodged against Trump would likely have two elements under 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 that he was simply using his First Amendment rights. (It is not clear that the First Amendment protects a president’s speech as president in connection with impeachment, but leave that academic question aside.) So the House 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 to the crowd he had summoned to the National Mall. It’s all on tape. Immediately after he said “you’ll never take back our country with weakness” and that “[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 to the trial brief, the mob subsequently breached security barriers around the Capitol perimeter, tore down scaffolding, “shoved and punched Capitol Police officers, gouged their eyes, assaulted 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, as well as “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 that bitch.”

Trial witnesses could supplement this narrative with first-hand accounts of what it was like to be there. One officer described it as a “medieval battle scene.” Another led the violent crowd away from the entrance to the Senate floor. A third was caught screaming with his head wedged in a door while he tried to keep the mob from barging through. Dozens of congressional staffers and aides suffered severe trauma and fear, not to mention the members themselves. Any of these folks’ testimony would underscore the gravity of the crimes that were committed.

Also: Hundreds of arrests have been made, with many rioters claiming both during and after the incident that they believed Trump had summoned them to take illegal action to stop the counting of Electoral College votes for Joe Biden. House impeachment managers could call one or more of them to testify, perhaps in exchange for leniency, to make the case that there was a connection between Trump’s speech and their violence. This could be important, since Trump’s lawyers now claim 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 have 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 in 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 that goes directly to one of the two main legal questions about 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 on this point might be extraneous.

But somehow I doubt that.

There are other 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 expand on Trump’s state of mind regarding the election results throughout the tumultuous weeks of “Stop the Steal” lies that culminated in the insurrection.

Maryland Gov. Larry Hogan has stated publicly that it took almost two hours for the Department of Defense to authorize him to send National Guard troops into the District once the attack happened. The Pentagon—at least in theory—answered to Donald Trump during that time. Hogan could flesh out the vital question of what role, if any, Trump played in the spectacular failures in law enforcement on that day. Because this, too, speaks to Trump’s intent.

There are downsides to calling witnesses. Many would require subpoenas—which could lead to court battles and a drawn-out trial. This might hamper the progress of President Biden’s governing agenda. It would also prompt calls from the Republican caucus for their own witnesses. It’s not clear why this would help Republicans—none of the facts are on their side. But 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 in advance of the trial, Democrats should bow to political reality, and dispense with 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 can 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 Donald Trump, then at least for the Republican members of Congress who, even now, continue to 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.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.