Hello and welcome to the five day politics podcast. I'm Galen Droog. Today, House impeachment managers finished laying out their argument for why former President Trump should be convicted by the Senate for inciting an insurrection at the U.S. Capitol.

They presented evidence spanning months from before the election when then President Trump refused to commit to a peaceful transfer of power to his attempts to overturn election results in individual states and then to footage inside the Capitol on January 6th that the public had not previously seen. We've talked about the political dynamics within the Senate previously on this podcast. It appears unlikely that 17 Republicans will ultimately join Democrats to convict Trump, although we'll have to see how the vote comes down.

But these proceedings are still a meaningful record that could shape public opinion and the historical record. So today we're going to dig into the evidence and the law.

And here with me to do that is our colleague at ABC News, Kate Shaw. Kate is a legal contributor at ABC law professor at Cardozo School of Law and co-host of the podcast Strict Scrutiny.

Welcome, Kate. Hey, thanks for having me back.

And listeners may remember Kate from this podcast previously during the last impeachment. So thank you for for coming again. Let's get to it.

What was the crux of the argument that House impeachment managers made for why former President Trump should be convicted for inciting an insurrection?

The case that they made this week tracked pretty closely the single article of impeachment for incitement of insurrection. And it focused, of course, on the events of January 6th. But just as you said, took a pretty broad view of sort of January 6th as the culmination of a sustained campaign that started on November 3rd in some ways. But even earlier than that, in many ways, sort of the president, President Trump seeking to discredit the outcome of the election that he had lost and sort of seeking different venues, pursuing different avenues to undermine the legitimacy of his election loss.

And so that involved lawsuits, that it involved pressure campaigns against state officials. Then his attention turned to his vice president, Mike Pence, and he somehow believed had the unilateral power to refuse to count votes from some of the states that had gone for Joe Biden. And so as he sort of turned his focus to January 6th, many of his supporters having internalized this lie that the election had been stolen, began to coalesce around this plan. And, you know, were there actual was there actual evidence that the president was in coordination or conversation with any of these individuals prior to the January six attack?

No, there wasn't. And I expect we'll hear a lot about the conspicuous absence of that kind of evidence from the former president's defense team. But there's a lot of circumstantial evidence that suggested that especially on January 6th itself, President Trump was quite aware of the way his followers were understood, his exhortation to fight like hell or they wouldn't have a country to be tough. Right. You know, use the term fight something like 20 times during his speech on the Ellipse, just before everyone started to march on the Capitol and then also during the course of the actual attack on and siege of the Capitol.

You know, even if you followed all this really closely in real time, it was quite striking not just to see the new footage that you talked about, but to see laid out along in kind of a timeline that the tweets that President Trump sent over the course of the day, seeming essentially to encourage some of what was happening even at the end of the day, when it was pretty clear how maybe not the full extent, but a lot of sort of much of the extent of how harrowing and violent the scene inside the Capitol had been that the president continued to double down on this false claim of election fraud.

That said, these are the things and events that happen when a secret election victory, a landslide victory, is stolen. So in a very effective presentation, I think the House managers made the case that an offense against the sort of polity or the body politic was exactly the kind of conduct that the framers had in mind when they drafted the impeachment clauses of the Constitution, that it's harder to think of a stalker example of high crime and misdemeanor than inciting a violent mob to attack a coequal branch of government, and that for that reason, he warrants a conviction and then potential disqualification from future office holding.

So to that point in particular, the rationale for why impeachment exists. We talked about this when you were on the podcast a little over a year ago. This is a political and not legal proceeding. So it works differently from a criminal trial. There's no fines, there's no jail time at stake. And it's simply laid out in the Constitution as the consequence for treason, bribery or other high crimes and misdemeanors. So in this particular case, we're the House impeachment managers casting their arguments in legal or political terms because.

You know, this is ultimately you just got to get your colleagues to see the world the way that you do or make your case to the American public in such stark terms that you shift public opinion in such a way that it becomes inevitable. Right. Were they actually trying to treat this more as a criminal case where you have to prove point by point by point that legally Trump is liable for incitement of an insurrection?

I think impeachment is always both a political and a legal process. And so I don't think it's the case that we should all throw up our hands and say, well, obviously everyone is going to vote. There are kind of partisan interests and there's no law to speak of it all in this process. I think a lot of law happens outside of courts and this is congressional law. And so I think precedent matters a lot when you're talking about impeachment, just that the precedent that is relevant is congressional precedent.

And so, too, I think that making arguments in the language of law has always happened in these impeachment proceedings, but that it's really clear that neither the managers nor the senators voting are bound in any way by judge made law. Right. So, for example, the standard to actually establish incitement in a court of law would be you're making a statement that is intended to and is likely to cause imminent lawless action. So those are the requirements of incitement.

But is that binding on the Senate in any formal way? No, and I'm not sure anybody really thinks that it is, but certainly it informs the Senate because a lot of them are lawyers. And this is a process that is a constitutional process. And so they have always looked to some degree to judge made law, but not understood themselves to be bound by it all. That said, I do think that incitement of insurrection is a statutory crime, seditious conspiracy is a statutory crime.

So I think that whatever happens with the final vote count here, I think there's a separate set of questions about whether there could be criminal charges that could be brought against the former president based on all of this. But but so in terms of I think that properly understood, the senator should view this as a legal process. But again, we're sort of they get to decide what the law is. And it's always a little you know, there's a strange thing about impeachment, which is it's not even clear what the standard of proof should be.

Should each senator understand himself or herself to have to be convinced beyond a reasonable doubt or by a preponderance of the evidence or by clear and convincing evidence? These are the standards that would apply to different kinds of cases brought in court. But there's no settled answer to the question of how convinced any individual senator needs to be by the evidence in order to vote to convict. So they kind of all have to decide how to answer that question for themselves. So it's a process and the answer to that question is going to be informed by law and the kind of weight of the evidence, but also have a heavy dose of politics.

I want to get into the suggestion that you made that there could be some criminal liability outside of this impeachment process. But I do want to dig a little deeper into what kinds of appeals the impeachment managers made. Were they talking to the public more broadly? Were they appealing to a certain sort of history where, as we mentioned, the law or politics, how were they trying to do the persuading?

So just as the proceeding is, I think, equal parts and simultaneously legal and political, I think they are simultaneously talking to the senators and to the public. And of course, if they convince the public successfully enough, the public will in turn put pressure on the senators and that could affect the votes. But I think that I think that they are also very much trying to write a first draft of history in terms of the meaning of these proceedings. And I think that in particular, in the closing summation that Congressman Raskin gave first, he said or one of the things he said was, can we just all agree that incitement of insurrection is an impeachable offense, like he would like the historical record to make that fact, which doesn't seem like it should be subject to real debate or dispute.

But I think he would like it clearly stated by the Senate, maybe even stated in clear terms by the senators who vote to acquit, that the conduct is impeachable conduct, that it warrants a conviction. But maybe here because of these fairly weak jurisdictional concerns, because he is a former president, these senators are voting to acquit, but that the conduct itself is not conduct that is worthy of the ultimate constitutional sanction. So they're they're talking to both. They're writing a first draft of history.

And I do think that it's important to bear in mind that an impeachment I I think it's a mistake to assume that it's a foregone conclusion that the votes aren't there. But, of course, it is very likely the case that the votes aren't there. But even if the votes aren't there, I think that it could be a pretty meaningful we're creating a historical record of the events of the 6th that I think is a hugely important one, whether it's enough, whether there should be another nine 11 style commission to sort of further develop the record, because there are still things we don't know.

A lot of them, I think, is a separate question. But this is an important, I think, first draft of the historical record. But it's also the case that I think that Trump could be really politically wounded by these proceedings, even if he is not convicted and disqualified. Think about Andrew Johns. And we talked about the. First time we talked about impeachment, so in 1868, Andrew Johnson is the first president to be impeached, he is acquitted by a single vote in the Senate, but he's really politically wounded by the process.

He doesn't. This is 1860. He doesn't even get his party's nomination to run for president. Later that same year. So that's a political consequence. He doesn't he finishes his term. He's not removed. But it's significant sort of what it does to his political trajectory. And I think you sort of make the argument in a bunch of different directions about what the impeachment of Bill Clinton did to Bill Clinton, sort of legacy and stature in history. But either way, it matters to presidents and it matters from the perspective of history if presidents are subject to impeachment and trial.

So I think there is independent value and meaning in these proceedings, regardless of the ultimate vote.

You mentioned those jurisdictional claims and that was what the first day of the impeachment trial was focused on, essentially whether or not the Senate can even convict a former president who's no longer in office. Now, the majority of Republicans came down on the side that it is not constitutional to convict a president that is no longer in office.

What does the legal background say in terms of the answer to that question?

I think that the pretty clear weight of authority is in favor of the permissibility of holding a trial for a former official in particular, where the offence occurred while an individual was holding public office and where the impeachment in the House occurred while the individual was holding public office. Both of those things are, of course, the case here. So we really only have two precedents for it. So in the 17 nineties, senators actually impeached. We now believe it to be a case.

You can't impeach, Senator, but first decade of the country's history, it wasn't totally clear. And so he was impeached and tried after he'd already been expelled from the Senate. So that's sort of important precedent one. The next one is eighteen seventy six. William Belknap, who is the secretary of war and was involved in a corruption scandal and resigned and then was impeached and tried again after his departure from office. And the same kinds of jurisdictional questions arose in eighteen seventy six that Congress debated whether it had the jurisdiction to hold the trial and conclude that it did.

So that's really important legal precedent. Again, not judge made congressional precedent. But, you know, Congress has considered and answered this question before and has decided it has jurisdiction to try former officials. The two other things I'll say. One is when you're doing constitutional interpretation, the kind of drafting history matters and sometimes constitutional British history matters.

And the framers of the Constitution were at the constitutional convention debating the drafting of the impeachment clauses. They were very well aware of the fact that impeachment of ex officials were customary practice in Britain, that there was one ongoing at the time the Constitution was drafted. While they were at the Constitutional Convention, they talked about the case of Warren Hastings, who was an official who is currently on trial then for various offenses. So they were familiar with this. It was also the case.

And in a lot of state constitutions, impeachment explicitly extended to officials. So this was sort of the legal kind of culture of the moment. And it seems pretty clear that they intended, when they included impeachment in the Constitution, to reach officials. And then the last, I think, reason that the jurisdictional arguments are weak is just a practical one. Right. The idea that egregious presidential misconduct, if it happens late enough in a term, would escape this ultimate constitutional sanction, just feels like an unworkable kind of constitutional role to me and not one of the framers would ever have intended.

And so for all these reasons, I think that the arguments against jurisdiction are weak and that's where the weight of the authority is. Everyone who's looked seriously at this question has basically come out in the way I just described. But it's not a frivolous argument. You don't want any private official being subject to impeachment right there. There have to be some limits. But here, I think, you know, again, he was in office when the misconduct occurred.

He was in office when he was impeached. There was no time to try him prior to January 20th. And so I think that the Senate pretty clearly does have jurisdiction over the trial.

So some Republicans are still making the case that they, as senators and the president no longer in office, do not have the right to convict. That question was settled on Tuesday, but can they still use that as an argument for why they won't convict when the vote comes down early next week?

Raschid really tried to make the argument today that they don't. The jurisdictional question has been answered. The Senate has ruled that objection was rejected and thus there's some obligation on the part of the senators consistent with their both oath of office and here oath as jurors to do impartial justice, to consider the evidence and cast their votes on the basis of the charge and the evidence. And I think he made a compelling case what the Senate has decided as a body, that it can proceed here.

It has affirmed the Belnap precedent from eighteen seventy six that I just talked about, and that they shouldn't be voting on the basis of the jurisdictional question. That is no longer a live question, but to return to what I said earlier, there's nothing that constrains the senators in any particular way in this regard. And I. Do you expect that a lot of them will point to the jurisdictional doubt as a basis to vote to acquit because it allows them right to avoid, I think, an uncomfortable vote in based on the strength of the evidence that we've seen this week on the president's actual culpability here.

What are the other arguments that Trump's defense attorneys are going to make to the public and to senators for why they should not convict Trump?

So I think they're going to make a due process argument that somehow this happened too quickly and the President Trump didn't have sufficient time to prepare. It's not a crazy argument, but I think that if this trial were happening in April or May, they would be making the argument that the managers were dilatory and that they didn't actually need to proceed. And so I think that there was some time to prepare. And I do think due process principles apply in impeachment.

Not everybody agrees with that, but I do think it's right. But here, I think certainly basic due process principles were honored. I think they're going to make a First Amendment argument. They'll suggest that because at the core of this case against former President Trump is speech and rhetoric that that speech is protected by the First Amendment. I also don't think that that's a strong argument. I mean, for a couple of reasons. One, even for private citizens, speech is not absolute.

The First Amendment doesn't confer absolute protections on speech. There are lots of categories of speech that are exempt from the protection of the First Amendment. And incitement to violence or incitement of lawless action is exempt from the First Amendment, even if this were a private person speaking. But in particular, when you're talking about a public official, you know, the First Amendment actually applies in really different ways to public officials. So think about the public school teachers or police officers.

They are subject to pretty serious discipline, maybe even firing for things they say all the time. And that's for better or worse. I think that line of cases is actually really problematic. But it's well-established that the First Amendment doesn't provide certainly anything like absolute protection for those kinds of officials. For senior government officials, it's in some ways even more so. Think about President Trump's senior cyber official, Chris Krebs, who came out and to the president's displeasure, said, look, this was a free and fair election and the president fired it.

And no one thought the First Amendment conferred on Krebs any protection against that firing. He was subject to sanction professional sanction for the words that he uttered. And I view this as simple or the president can speak. Of course he can speak. But the fact that it is speech does not protect him from consequences. He could be he could lose a reelection effort, might be fired by the people, or he could be subject to impeachment by the Congress.

And the fact that it is speech to me is not particularly relevant. I'll say one more thing I think has to be the case, that everyone agrees that certain kinds of presidential speech would be subject to impeachment. So if the president explicitly invited a foreign government to invade the United States or pledged his fealty right to another government, seems pretty clear that would be a violation of his oath of office and subject him to impeachment and conviction.

So then the question comes to what is the specific speech that we're referring to here that incited a riot or incited an insurrection? And how much of the argument comes down to that? Did Trump literally intend for the people at the rally to go and violently destroy property and ultimately kill people when he said fight like hell? How do you deal with that question of is this actually what President Trump wanted?

Yeah, I mean, clearly, his lawyers are going to argue that he was speaking metaphorically. It is true that no one is going to be able to know, certainly in these proceedings, maybe in any proceedings, what was really going on inside former President Trump's mind. But we rely on circumstantial evidence to establish intent all the time in the law. So I think that if there is clear enough evidence that the president understood the likely effects of his speech, that he understood how his words would be heard by his followers, and then when they responded, as they did, when he actively continue to encourage, if not the violence itself, the sort of predicate for the violence.

Right. This idea that the election had been stolen, the idea that underlay all of this conduct, you know, it all does add up to a compelling circumstantial case that the president was aware of the effect of his words and maybe that he intended this effect. But again, because it's this hybrid legal political process, I don't think you need to nail down intent in the same way you would in a courtroom. I do think that if you were making up this case in court, that would be the major obstacle establishing presidential intent.

And I want to ask you specifically about that. But first, today's podcast is brought to you by calm sleep. We all love it and most of us probably want more of it. But rather than getting a solid night's rest, we often find ourselves scrolling social media or reading the news when we should be powering down for the night.

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Get started today at com dotcom five three eight that KLM. Com Dotcom five three eight. The numbers, not the letters. OK, so you just mentioned that the major obstacle, if this were strictly a criminal proceeding, would be establishing intent. Do you think that we are going to end up seeing what this case would look like in a criminal court?

I still think more likely than not we will not. I think that the odds are against it, but I wouldn't rule it out that we could see some federal criminal prosecution. I mean, I think that in some ways it depends a little bit on how the impeachment proceedings are understood, not in any formal way. You could charge former President Trump criminally, whether he is even if he is convicted in this impeachment proceeding or if he's acquitted, as seems likely, none of that has any binding effect on federal prosecutors.

But I think that in some atmospheric sense, if that if it felt like there was this kind of rigorous consideration of these events and this conduct, whatever the sort of outcome that was careful and searching and served some accountability, furthering interests, I think that would reduce the likelihood that you might see some federal criminal prosecution. I'm not sure if that's exactly what we've seen. It's been this fast process. No witnesses. I'm not sure that it feels like the events have been run to ground, even in a factual sense.

And so I imagine that there will be at least some consideration inside the Biden Justice Department of the possibility of whether it's incitement of insurrection or seditious conspiracy of some kind of criminal charge. Just imagine if a private citizen who held a rally and kind of fomented Amar, if a private citizen called a rally and managed to rile up a mob, then attacked the Capitol, you got to imagine that there would at least be serious consideration given to bringing criminal charges against that person.

And so from the perspective of equal justice under law, it does seem as though it should at least be considered. And maybe one more thing I'll say is I'm talking just about federal criminal prosecution. I think there's a decent chance that he will be charged in Fulton County, Georgia, for his phone call to Secretary of State Fred Raffensperger. At least there's an inquiry ongoing right now, and it's the solicitation of election fraud seems like a fairly straightforward crime.

So that that seems like a live possibility to me as well.

Yeah. So we learn some of the details about that investigation that's happening in Fulton County today. We've also talked previously on this podcast about investigations that are ongoing in New York State, for example. And of course, you mentioned there the possibility of federal prosecution. That seems unlikely. This all gets at a pretty tricky question for democratic norms, right? We think in a democratic society, well functioning, democratic society, you don't criminally prosecuted your political adversaries because that's a slippery slope, right?

Oftentimes in countries that have democratic backsliding or that are not democracies at all, political opponents can end up in prison for barely any reason at all. You can always drum up some kind of reason to throw your opponent in jail. And obviously, I'm not saying that that's what happened is happening here, but that's oftentimes the concern when we talk about prosecuting political adversaries. So the Biden Justice Department, as well as the attorneys general in these different states that could potentially bring suits are going to have to make this calculation.

They're also going to have to consider like, well, how will Republicans view this? And do they want to retaliate by then prosecuting Democrats, even if they have not necessarily committed the exact same offenses that this could spiral in some way? How do you weigh those considerations with one that we haven't had a situation where the president has fomented an attack on the Capitol before and tried to overturn an election in that way. So it seems pretty serious and pretty undemocratic, but there's also the slippery slope on the other side where things can escalate quickly when you start prosecuting political adversaries.

I think it's such an important and good question. I mean, I guess I'm going to sound kind of Pollyanna ish when I say that I actually have a decent amount of sort of faith in the kind of rule of law and norms of lawyers. And that and that actually gives me some comfort when I worry about sort of this kind of an escalating cycle of baseless prosecutions of political adversaries. I mean, take a look at the relatively not, I will say, the generally really strong performance of election officials of both political parties, even in the face of really intense political pressure to deviate from both law and norms and their sort of resistance.

Right in Georgia, of course, or this friend of mine, since we're just talking about it. But I think there are other examples as well. So I I guess I think that because these events and this conduct in this president is so sui generis that it would be possible to hold him potentially accountable in a criminal context without necessarily opening the Pandora's box you are describing. Although I would I would think if I were in the Biden Justice Department leadership, I would absolutely want to appoint an independent counsel, special prosecutor type to actually take a look.

At the events of January 6th, whether any additional criminal charges against high level persons should be considered in addition to all these, obviously there are many, many charges that have already been brought. I would maybe want that person to be a Republican, right. A prominent one know, I think that there are ways that you can try to depoliticize the process of considering charges against a former president. And maybe the process concludes with a decision not to prosecute.

And maybe that's for the best, but at least there's been some serious thought and consideration given to it. But, yeah, I mean, the concerns that you just voiced are, I think the reason that I still think it is, or one of the reasons that I still think that that the kind of concerns will be powerful enough that we that we are not likely to see the criminal charges brought. But again, I think you could find a way to do it that would at least reduce the chances of it sort of lighting a torch that we would then sort of come to regret.

This gets outside of the realm of perhaps, you know, constitutional law or theories surrounding the presidency and impeachment.

But we're now seeing various different lawsuits come out surrounding responsibility for disinformation campaigns surrounding election fraud. We saw that Fox News has been served at two point seven billion defamation lawsuit, along with some of their hosts and Rudy Giuliani at Powell, the Trump attorney. And, you know, we also see that the rioters themselves are, in many cases, being prosecuted.

I'm curious when we think of, OK, how do we want to make sure this never happens again? Well, one of the ways that the Democrats are pursuing this is through this impeachment process and this trial, you know, to what extent can these other methods of prosecuting individual writers or defamation lawsuits or things like that, how much power does that have to kind of nip in disinformation in the bud or deactivate some of these militia groups, for example?

Yeah, I mean, I hate to say it because, like, my tool is the law, but I do worry that the law is not really going to be able to help us answer these questions of sort of that that one of the key afflictions of the body politic at the moment like is this sort of is misinformation. But it's hard for me to see exactly how law, as opposed to kind of politics and culture and other sorts of tools are going to fix that problem.

I do think that, you know, these lawsuits are significant. And I do think that the platforming of Trump and a lot of others on Twitter and Facebook are really significant. And those things aren't there outside of law, but sort of law enforcement, is that right? The Facebook oversight board is considering this question right, of the Trump ban, and it's using a legal process. It's not bound by law, but it's almost like impeachment in certain respects.

Right. Like it's kind of a political and kind of a legal process, as I understand it, from the first batch of written opinions that they just issued. And so so so it does feel like that that the kind of legal remedies that you just listed are kind of bandaids and sort of the kind of the body politic illness is one that remedies that aren't purely legal remedies are going to be required by law.

And lastly, what about the future of impeachment? This maybe poses similar questions to the spiral of prosecuting political adversaries. Obviously, President Trump has behaved in a way that no former president has, or at least not any president in our modern recollection has.

But nonetheless, things turn into a partisan tit for tat. Does is impeachment now kind of just like we're used to it? It's something that happens.

You know, I think impeachment talk is something that we may see more of. I think that there were worries under Bush and under Obama that we were sort of in this or entering this age of impeachment in which impeachment was going to be used to routinely. Right. That it should be a pretty extraordinary process and not regularly invoked. And look, now we've done it twice in two years, essentially, and that's that's half the times that we've ever done it.

And so I do think that there could be reason for concern that we might be in this era in which literally every president where the House is controlled by the other party, which is historically very often the case, is going to be subject to a serious impeachment threat. And I guess I think that there that we may be, again, moving into an era of more impeachment talk and maybe efforts by some members, but that actually seeing an impeachment vote in the House is something that is still going to be relatively rare, although we could we could see an uptick.

And there the two thirds supermajority requirement for a conviction in the Senate is something of a bulwark, you know, for better or worse.

But it could be the case that, you know, we have we have pretty routine impeachment in the House. It's kind of like a no confidence vote in a parliamentary system, and it's not that big a deal and. We don't hold lengthy hearings or call tons of witnesses or anything like that, and then we sort of have a vote in the Senate and or not, if the outcome is so foreordained and we go about our business, I don't think that's a good development, but I don't think it's a fatal one.

I do think it's possible that we could see it. But I actually think the rhetoric that you have seen from the Republicans in Congress, for the most part, obviously there are exceptions, seems to reflect an appreciation that this conduct was clearly out of bounds. And so I don't see them using this precedent as a justification to launch a lot of impeachment inquiries into President Biden, at least any that are serious.

All right. Well, we will leave it there. Thank you so much for inviting us again on all things impeachment. Thanks so much for having me. My name is Galen Droog. Tony Chow is in the virtual control room. You can get in touch by emailing us at Podcast's at five thirty eight dotcom. You can also, of course, tweet us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple podcast store or tell someone about us.

Thanks for listening and we'll see you soon.