Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
On Day 3 of Trump Impeachment 2, the Democratic House managers provided compelling evidence that Donald Trump knew that what he was saying on Jan. 6 was highly incendiary. They showed how he had previously goaded his supporters to rage and violence at rallies across the country. The usual situation involved Trump urging the crowds to “go after” a heckler or protester. They routinely complied.
The House managers also showed video demonstrating that Trump made no timely attempt to call off the crowd attacking the Capitol. In fact, he waited several hours after the Capitol siege began before finally making a tepid request for the mob to go home – and told them he loved them.
It was the worst attack on the Capitol since the War of 1812. As the Democrats explained to the Senate, the siege left several dead, 73 Capitol Police officers and 65 District of Columbia police officers injured. Some suffered brain damage, others the loss of eyesight or their fingers.
There is no definitive list of words in US law that are identified as incitements to criminal violence. Everything depends on context and audience. (Given the right audience and circumstances, for example, a mafia godfather can order a hit by using “break an egg,” “clip,” “hit,” “ice,” “pop” or “whack.”) In criminal trials, prosecutors often call mafia translators who explain that telling someone to “break an egg” does not always refer to making breakfast.
Powerful political leaders have similar options for getting things done through ambiguous verbal coercion. A famous example is that of King Henry II, who was said to have complained aloud about the Archbishop of Canterbury: “Will no one ride me of this meddlesome priest?” His knights took him literally and stabbed the archbishop to death. They thought they were just following orders.
Trump’s lawyers on Day 1 of the trial said his words were perfectly proper and could not possibly have incited violence by his supporters. Furthermore, he had no idea the crowd would invade the Capitol, they said. This kind of denial is classic Trump, throwing anyone under the bus to save himself. But unlike his previous firings of lawyers, Cabinet secretaries and others in his circle, this time he will need a fleet of buses to rid himself of the hundreds of insurrectionists allegedly inspired by his rhetoric last month.
Without calling a single witness, the House managers proved that many in the mob believed that they were acting on the express orders of their Commander in Chief. The evidence came directly from the mouths of the rioters, often caught on video they shot themselves. Some were so convinced that they were following legitimate presidential orders, they were astonished that police officers arrested them.
As for the argument proffered by Trump’s lawyers that the First Amendment shields Trump’s speech from scrutiny, the lead House manager, Rep. Jamie Raskin, calmly and meticulously dismantled that. Raskin, a former editor at the Harvard Law Review and professor of constitutional law at American University College of Law, noted that not all speech is protected. He cited the classic example of falsely shouting “fire” in a crowded theater – but added that Trump was more like a fire chief who tells a mob to set the theater on fire.
Not only is Trump not protected by the First Amendment in this case, he has the additional constraint of his presidential oath.
Nobody forced him to put his hand on a Bible and promise “to preserve, protect and defend the Constitution of the United States” – but he did. Urging a potentially violent crowd of thousands to march on the Capitol to “fight like hell” for the decertification of the presidential election, the Democrats convincingly argued, is entirely inconsistent with the presidential oath.
The Democrats have done a remarkable job of presenting a persuasive case for convicting the former president. Without calling a single witness, they have shown that he has repeatedly encouraged violent behavior by large crowds of his supporters. They have shown how he incessantly monitors television and social media, and thus must have known well in advance that his followers had believed his lies about the “stolen” election and were potentially violent. At the beginning of his speech, Trump personally estimated that many “hundreds of thousands” of supporters were there.
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Trump, who was the nation’s chief law enforcement officer on Jan. 6, made no attempt to determine if adequate security forces were in place before he urged his mob to march to the Capitol with him and “fight.” He abandoned the crowd and returned to the White House after the speech, despite the promise.
According to House manager Rep. Madeleine Dean, the word “fight” or its variants appeared 20 times in the nearly 11,000-word speech, while “peacefully” appears only once. Trump threw gasoline on the smoldering crowd of thousands that he had invited to Washington for a “wild” time. He then happily lit the fire with his incendiary rhetoric and came perilously close to causing the deaths of his own Vice President, Mike Pence, and House Speaker Nancy Pelosi, both of whom were actively hunted by the insurrectionists.
His lawyers Bruce Castor, Jr. and David Schoen have a lot of answering to do on Friday. Reports of a secret meeting between several Republican US Senators and the former president’s lawyers during the trial on Thursday evening are disturbing. The Senators are jurors in the impeachment trial as well as judges on legal issues. No secret meetings with jurors or judges are allowed in normal American courtrooms. If such a meeting occurred in a regular jury trial, the Senator-jurors would be held in contempt and a mistrial declared.
While the Senate can make its own rules about the procedural aspects of impeachment trials, secret meetings between Trump’s lawyers and a small number of GOP senators fails the “smell test.” It has the appearance of impropriety in the absence of the consent of a majority of the Senate and the Democratic House Managers.
Given the strength of the case against the former president, the Republicans in the Senate should be overwhelmingly voting for conviction. If they don’t, history will remember them as a collection of cowards who put the interests of a political party over that of the nation they were elected to represent.