Questions for Senators to Ask the Legal Teams During the Impeachment Trial

We suggest the following questions for Senators to ask the two legal teams during the question-and-answer period of the impeachment trial.

To President Donald Trump’s legal team:

1. If press reports are accurate and the evidence showed that former President Trump was delighted with the attack, believing that it would disrupt the electoral vote count, would your position on acquittal be the same?

2. You have argued that the president is entitled to his opinion, fully protected by the First Amendment, and so would your defense on these grounds by the same if a president stated: “In my opinion, my Vice President betrayed me and my country, and he deserves to be beaten within an inch of his life. I don’t know that I can actually ask anyone to do this but that is my opinion”?

3. You argue that a former president can never be impeached and convicted as a “private citizen,” but only if the conviction resulted in removal from office. If a president were to order an attack on his political enemies, resulting in death, and he were impeached and tried for these actions but—believing that he would lose the vote on conviction— he resigned weeks into the trial but a day before the final vote, would your position be the same?

4. Some members sitting here today may fear that if they vote their conscience, they face threats of violence—and that former President Trump would do nothing to discourage those threats? Do you disagree that this concern about retribution, and in particular the prospect of violent retribution, speaks directly to the dangerous rage that this president has stoked in his own self-interest and that is at the heart of this impeachment?.

5. President Trump was reportedly informed by his legal advisers that Vice President Pence did not have the authority to reject the certified state results, but President Trump declared that the vice president did and that his failure to do so violated his oath. Yet Mr. Trump told the mob and the public the opposite as to the facts, with no basis whatsoever for believing that it was true. Is this protected “opinion”? Would it have been protected “opinion” if he had declared that all members voting to affirm the certified results has been bribed?

6. You have suggested, as have some Senators, that the answer to the allegations lies in the criminal justice process—that if President Trump violated the law in connection with the events of January 6, he should face prosecution, not impeachment. Is it your position that Congress cannot entertain evidence of criminal misconduct as grounds for impeachment, but must stay its hand until the conclusion of the criminal justice process? How is this consistent with Congress’ impeachments of Richard Nixon and Bill Clinton? How is it consistent in particular with the Clinton impeachment when the Independent Counsel then investigating Clinton’s conduct  also filed a report with the Congress in the middle of the investigation to initiate the impeachment process?

7. In your written presentation, you wrote, “the House Managers’ suggestion that President Trump did not act swiftly enough to quell the violence is absolutely not true.” Given that you have made this factual assertion, it is only fair to ask and for you to answer: When was the president first informed of the attack on the Capitol and of the threat to Vice President Pence? For example, did Senator Tuberville inform President Trump that Vice President Pence was being evacuated before the president tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution”? What specific actions did the president take and at what time did he take them?

To the House Impeachment Managers:

1. Isn’t it true that we do not need to find the President deliberately intended to incite the violence at the Capitol? That is, if we find the President’s words and actions incited the violence, and that he knew or should have known such violence would be the foreseeable consequence it would be sufficient to convict?

2. On January 6 after hours of live scenes of the rioters attacking the Capitol, President said in a statement on Twitter, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away.” Isn’t this statement an admission by President Trump that the assault on the Capitol was a foreseeable consequence of his telling the mob that his landslide victory had been stolen from them?

3. In his speech on January 6, President Trump said, “Fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules.” How should we understand what is meant by “you’re allowed to go by very different rules” other than nonpeaceful protest? Aren’t the usual rules peaceful protest outside the Capitol grounds?

4. Your presentation helps expose the Big Lie – the idea that the election was stolen – and President Trump’s legal team, including by Mr. Castor on the floor of the Senate, has also essentially stated that President Biden was properly elected. Can you explain how important this concession is not just for this impeachment trial but for the American public to understand now and in the future?

5. Either President Trump was informed of the intelligence threats of white supremacist militia and the potential for violence on January 6 or the president had so decimated his own administration that his subordinates knew not to share that information with him, as former Trump administration officials have said. Is it true that either way, President Trump would bear responsibility for the results of giving his incendiary remarks in light of those threat assessments?

6. If President Trump’s intention was only for the mob to enter the Capitol and put political pressure on members of Congress and to disrupt their business, would those actions by his supporters involve a serious federal crime for which the president should be held responsible?

 

Image: Congress.gov

 

About the Author(s)

Bob Bauer

Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. He served as White House Counsel to President Obama and was a senior adviser to the Biden campaign.

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).