S924 CONGRESSIONAL RECORD — SENATE March 1, 2021 unanimous consent that the rules of in the subcommittee and shall not be count- IMPEACHMENT procedure of the Committee on Appro- ed for purposes of determining a quorum. Mr. GRASSLEY. Mr. President, just priations for the 117th Congress be f barely a year ago, I was here making a printed in the RECORD. similar statement. Impeachment is one There being no objection, the mate- TRIBUTE TO CHRISTINA NOLAN of the most solemn matters to come rial was ordered to be printed in the Mr. LEAHY. Mr. President, I would before the Senate, but I worry that it’s RECORD, as follows: like to pay tribute to a great also becoming a common occurrence. SENATE COMMITTEE ON APPROPRIATIONS Before getting into the merits of this Vermonter, Christina Nolan, a most COMMITTEE RULES—117TH CONGRESS impeachment, it is important to reit- dedicated public servant who has I. MEETINGS erate that January 6 was a sad and served as U.S. attorney for the District tragic day for America. I hope we can The Committee will meet at the call of the of Vermont since November 2017. She Chairman. all agree about that. will be resigning her post at the end of What happened here at the Capitol II. QUORUMS this month, 11 years since she first 1. Reporting a bill. A majority of the mem- was completely inexcusable. It was not joined the U.S. Attorney’s Office, but a demonstration of any of our pro- bers must be present for the reporting of a her work and the strong partnerships bill. tected, inalienable rights. It was a di- 2. Other business. For the purpose of she forged will carry on for many years rect, violent attack on our seat of gov- transacting business other than reporting a to come. ernment. Those who plowed over police bill or taking testimony, one-third of the A profile of Christina recently ap- barricades, assaulted law enforcement, members of the Committee shall constitute peared in Vermont Business Magazine and desecrated our monument to rep- a quorum. under the headline ‘‘A Born Advocate resentative democracy flouted the rule 3. Taking testimony. For the purpose of for Justice.’’ And she has been just of law and disgraced our Nation. Six taking testimony, other than sworn testi- that. During her tenure, Christina mony, by the Committee or any sub- people, including two U.S. Capitol Po- committee, one member of the Committee or worked to stem the deadly surge of lice officers, now lie dead in the wake subcommittee shall constitute a quorum. heroin and fentanyl in our small State, of this assault. The perpetrators must For the purpose of taking sworn testimony and she has joined with Federal part- be brought to justice, and I am glad to by the Committee, three members shall con- ners to slow the illegal trafficking of see that many such cases are pro- stitute a quorum, and for the taking of firearms. She has also used her voice to gressing around the country. sworn testimony by any subcommittee, one shine a spotlight on domestic violence While the ultimate responsibility for member shall constitute a quorum. and human trafficking, not only pros- this attack rests upon the shoulders of III. PROXIES ecuting critical cases but also high- those who unlawfully entered the Cap- Except for the reporting of a bill, votes lighting the plight of victims who are itol, everyone involved must take re- may be cast by proxy when any member so caught in the path of such heinous sponsibility for their destructive ac- requests. crimes. Her personal approach to each tions that day, including the former IV. ATTENDANCE OF STAFF MEMBERS AT CLOSED and every case, signing off on every President. As the leader of the Nation, SESSIONS charging document in the office, as all Presidents bear some responsibility Attendance of staff members at closed ses- well as her commitment to victims and for the actions that they inspire—good sions of the Committee shall be limited to her dedication to upholding the rule of or bad. Undoubtedly, then-President those members of the Committee staff who law are evident to anyone who has wit- Trump displayed poor leadership in his have a responsibility associated with the nessed her work and her work ethic. words and actions. I do not defend matter being considered at such meeting. those actions and my vote should not This rule may be waived by unanimous con- While Vermont’s U.S. Attorney’s Of- sent. fice is among the smallest in the coun- be read as a defense of those actions. try, it is fair to say that under I am a member of a Court of Im- V. BROADCASTING AND PHOTOGRAPHING OF peachment. My job is to vote on the COMMITTEE HEARINGS Christina’s leadership, the team has punched well above their weight. In case brought by the House managers. I The Committee or any of its subcommit- took an oath to render judgment on tees may permit the photographing and one instance, her office set out to in- the Article of Impeachment sent to the broadcast of open hearings by television vestigate kickbacks and fraudulent and/or radio. However, if any member of a billing practices involving the elec- Senate by the House of Representa- subcommittee objects to the photographing tronic health records industry, unrav- tives. We are confined to considering only the Articles charged and the facts or broadcasting of an open hearing, the ques- eling a scheme that resulted in an $8 tion shall be referred to the full Committee presented. billion national settlement with for its decision. First and foremost, I don’t think this Perdue Pharma, which admitted to VI. AVAILABILITY OF SUBCOMMITTEE REPORTS impeachment is proper under the Con- needlessly and shamelessly promoting stitution. This is the first time the To the extent possible, when the bill and the prescribed use of OxyContin, a report of any subcommittee are available, Senate has tried a former President. highly addictive opioid. they shall be furnished to each member of Whether or not it can do so is a dif- the Committee thirty-six hours prior to the During her time as U.S. attorney, ficult question. The Constitution Committee’s consideration of said bill and Christina has forged strong relation- doesn’t say in black and white ‘‘Yes, report. ships with her partners in Federal, the Senate can try a former President’’ VII. AMENDMENTS AND REPORT LANGUAGE State and local law enforcement cir- or ‘‘No, it can’t.’’ In contrast, many To the extent possible, amendments and cles, many of whom have shared with State constitutions at the time of the report language intended to be proposed by me how much they appreciated her en- founding specified that their legisla- Senators at full Committee markups shall be gagement. In the courtroom, col- tures could, so it’s notable that our provided in writing to the Chairman and leagues on both sides of the bench have Federal charter did not. In order to an- Ranking Minority Member and the appro- lauded her fairness. A Federal judge, priate Subcommittee Chairman and Ranking swer this question it’s therefore nec- interviewed for the aforementioned essary to look at the text, structure, Minority Member twenty-four hours prior to magazine profile, spoke of her ‘‘quiet such markups. and history of the Constitution. That’s confidence’’ and her ‘‘natural court- VIII. POINTS OF ORDER what I have done. In the end, I do not room presence: graceful and com- think we have the ability to try a Any member of the Committee who is floor manding.’’ former President. manager of an appropriations bill is hereby I am proud to have worked with Gov. authorized to make points of order against I start always with the Constitution, any amendment offered in violation of the Phil Scott to recommend Christina which gives Congress the power of im- Senate Rules on the floor of the Senate to Nolan for the position of U.S. attorney peachment. As I mentioned, impeach- such appropriations bill. back in 2017. She has served ment was a feature in many State con- IX. EX OFFICIO MEMBERSHIP Vermonters very well during her ten- stitutions at the time, and it came The Chairman and Ranking Minority Mem- ure. Marcelle and I wish Christina and from a power enjoyed by the English ber of the full Committee are ex officio mem- her longtime partner, Jill, and their Parliament. bers of all subcommittees of which they are family our very best in future endeav- Impeachment in England was a pow- not regular members but shall have no vote ors. erful tool whereby Parliament could

VerDate Sep 11 2014 05:58 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.006 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S925 hold individuals accountable for ac- The House managers tried to prove week before the election. He, like any tions against the government without that President Trump incited an insur- politician, is entitled to seek redress in having to rely on the King to enforce rection. That is a difficult argument to the courts to resolve election disputes. it. It applied not just to sitting govern- make. There were many other Articles President Trump did just that, and ment officials but also to former gov- over which they could have impeached there’s nothing wrong with it. I sup- ernment officials and even to private President Trump, but this is what the ported the exercise of this right in the individuals. It was not simply a way to House of Representatives chose. They hopes that allowing the election chal- remove government officials but a gen- didn’t meet their burden. lenge process to play out would remove eral method of punishing the enemies Before getting to the merits of the all doubt about the outcome. The re- of Parliament, including with fines, charge, I need to point out that this ality is, he lost. He brought over 60 jail time, or even death. impeachment trial has not aligned lawsuits and lost all but 1 of them. He This is not the system established by with principles of due process of law. was not able to challenge enough votes our Constitution. Our Constitution re- Other impeachments have involved sig- to overcome President Biden’s signifi- stricts the power of impeachment in nificant fact-finding in the House, cant margins in key States. I wish it two important ways. First, it says that where proper legal formalities are fol- would have stopped there. Congress can’t just impeach anyone: lowed, witnesses are heard from and It didn’t. President Trump continued only the President, the Vice President, cross-examined, and hard evidence is to argue that the election had been sto- and ‘‘all civil Officers of the United reviewed. Here there were no hearings len even though the courts didn’t back States’’ can be impeached. It then re- in the House. The evidence presented up his claims. He belittled and har- stricts the penalties for impeachment was mostly video montages and news assed elected officials across the coun- to removal from office and disqualifica- reports. We even had the unusual spec- try to get his way. He encouraged his tion. tacle of voting to call witnesses for the own, loyal Vice President, Mike Pence, A former President is not in any of first time as the trial was ending only to take extraordinary and unconstitu- those three categories. He is not the to immediately reverse course and call tional actions during the electoral col- President. In fact, the Constitution none. Given the seriousness of the situ- lege count. My vote in this impeach- also specifies that when the President ment does nothing to excuse or justify ation, I think we should expect better is impeached, the Chief Justice of the those actions. There’s no doubt in my when the House exercises its constitu- Supreme Court shall preside over the mind that President Trump’s language tional duty of impeachment. trial. Chief Justice Roberts has not This issue involves complicated legal was extreme, aggressive, and irrespon- presided over this trial, thus making it questions. In our legal system, though, sible. Unfortunately, others share the clear that it is not the trial of a Presi- it is very difficult for speech to rise to blame in polluting our political dis- dent. He is obviously not the Vice the level of incitement. ‘‘Incitement’’ President. He is not a civil officer of course with inflammatory and divisive is a legal term of art. Usually it takes the United States. language. As President Trump’s attor- place in the context of incitement to Because he does not fall into any of neys showed, whatever we heard from these categories, I don’t think that violence. Incitement, in our legal sys- President Trump, we had been hearing this trial was appropriate. tem, doesn’t mean ‘‘encouraging’’ vio- from Democrats for years. National Moving beyond the text of the Con- lence or ‘‘advocating’’ violence or even Democrats, up to and including Presi- stitution, the history of the Senate ‘‘espousing’’ violence. It means inten- dent Biden and Vice President Harris, confirms this. The U.S. Senate has tionally causing likely violence. Be- have become regular purveyors of never convicted a former official in an cause the Article of Impeachment uses speech dismissing and even condoning impeachment. The Senate has tried the word ‘‘incitement,’’ I need to evalu- violence. It’s not surprising that when three individuals who were former offi- ate President Trump’s actions under they talk about taking the ‘‘fight’’ to cers—William Blount a former Senator the rubrics of the law of incitement, ‘‘the streets’’ organizations like antifa in 1798; William Belknap a former Sec- which were set out in the Supreme actually take to the streets of our cit- retary of War, in 1876; and Robert Ar- Court case of Brandenburg v. Ohio. In ies with shields and bats and fists, de- chibald an incumbent Commerce Court that case the Court held that incite- stroying lives and livelihoods. judge, in 1912, tried as well for conduct ment required speech that, first, en- Yes, I think President Trump should while a district judge). Belknap is the courages ‘‘imminent lawless action’’ have accepted President Biden’s vic- only executive branch member tried and, second, ‘‘is likely to incite or tory when it became clear he won. I after leaving office. None was con- produce such action.’’ In other words, think Secretary Clinton should have victed for his prior conduct, Archibald in order to succeed, the House man- done the same thing in 2016. But as re- was convicted on counts relating to his agers must have shown that President cently as 2019, she questioned the legit- incumbent judicial service on the Com- Trump’s speech was intended to direct imacy of Trump’s election, saying merce Court. In all three cases, the ju- the crowd to assault the Capitol and ‘‘[Trump] knows he’s an illegitimate risdictional question loomed large at that his language was also likely to president. I believe he understands that the trial and was cited as an important have that effect. the many varying tactics they used, argument justifying the acquittals. In As I said before, what happened on from voter suppression and voter purg- other words, Senate practice is con- January 6 was tragic. We can’t let it ing to hacking to the false stories . . . sistent: It has never convicted a former happen again. But the House managers there were just a bunch of different official in an impeachment. have not sufficiently demonstrated reasons why the election turned out Between the text of the Constitution that President Trump’s speech incited like it did.’’ and the consistent practice of the Sen- it. While I will have more to say about If there’s one lesson I hope we all ate, I’m convinced that this is not an President Trump’s conduct, the fact is learn from not only last year but the appropriate use of our power. While I that he said this: ‘‘I know that every- last few years, it’s that we all need to realize there are arguments on the one here will soon be marching over to tone down the rhetoric. Whether it’s other side from learned scholars, to the Capitol building to peacefully and the destructive riots we saw last sum- me, they do not overcome these prob- patriotically make your voices heard.’’ mer or the assault on the Capitol, too lems of text and history. That speech is not an incitement to many people think that politics really That’s why I voted twice to deal with immanent lawless action as established is just war by another name. To far too this impeachment on jurisdictional in the case law. I wish the crowd would many people, our democracy isn’t free grounds. But my position didn’t pre- have listened to him. people coming together to make life vail, with the majority Democrats vot- Just because President Trump did better for our communities. It’s a ing in lockstep to proceed, and we went not meet the definition of inciting in- street fight. to trial. As I’ve said, even though I surrection does not mean that I think We don’t need to agree on every- think this is inappropriate, I kept an he behaved well. thing. In fact, part of what makes our open mind during the process, and I lis- To be clear, I wanted President democracy great is that we don’t agree tened to both sides as they presented Trump to win in November. I gave over on everything. But we do need to re- their evidence. 30 speeches on his behalf in Iowa the solve these differences with debate and

VerDate Sep 11 2014 05:58 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.012 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S926 CONGRESSIONAL RECORD — SENATE March 1, 2021 with elections, not with violence. United States, shall be removed from Office those who represent the great body of the Whether the violence comes from the on Impeachment for, and Conviction of, people, because the occasion for its exercise left or the right, it’s wrong. The same Treason, Bribery, or other high Crimes and will arise from acts of great injury to the 3 goes for speech that claims to define Misdemeanors.’’ community, and the objects of it may be ‘‘Treason’’ and ‘‘Bribery’’ are foundational such as cannot be easily reached by an ordi- enemies by political views or affili- impeachable offenses. No more heinous ex- nary tribunal.12 ations. ample of an offense against the constitu- We’re all Americans, always trying Iredell’s understanding sustains the view tional order exists than betrayal of the na- that an impeachable offense must cause to form a more perfect union. We have tion to an enemy or betrayal of duty for per- ‘‘great injury to the community.’’ Private more in common than what divides us. sonal enrichment. A President commits trea- wrongdoing, without a significant, adverse It’s high time those of us who have son when he levies war against the United effect upon the nation, cannot constitute an been elected to serve lead by example. States or gives comfort or aid to its en- impeachable offense. James Wilson, a dele- 4 We can take the high road. We can tone emies. As the House Judiciary Committee gate to the Federal Constitutional Conven- explained, a President engages in impeach- tion and, like Iredell, later a Supreme Court down the rhetoric. We can be respectful able bribery when he ‘‘offers, solicits, or ac- even when we disagree strongly. If we Justice, wrote that Impeachments are ‘‘pro- cepts something of personal value to influ- ceedings of a political nature . . . confined to don’t, we’ll be betraying the trust that 5 ence his own official actions.’’ political characters, to political crimes and the American people have placed in us, In interpreting ‘‘high Crimes and Mis- misdemeanors, and to political punish- and we’ll endanger the democracy and demeanors,’’ we must not only look to the ments.’’ 13 the freedom that so many of us have Federalist Papers and the records of the Con- Later commentators expressed similar worked to preserve. stitutional Convention, but also to the con- views. In 1833, Justice Joseph Story quoted These are difficult issues I have con- temporary and foundational writings on Im- favorably from the scholarship of William sidered over the past week, but in the peachment available to the Framers. Rawle, who concluded that the ‘‘legitimate Sir William Blackstone, whose influential causes of impeachment . . . can have ref- end, I am confident in what I think is Commentaries on the Laws of England were the correct position. We do not have erence only to public character, and official published from 1765–1770, discussed a classi- duty . . . In general, those offenses, which the authority to try a private citizen fication of crimes he termed ‘‘public wrongs, may be committed equally by a private per- like former President Trump. Even if or crimes and misdemeanors’’ that he de- son, as a public officer, are not the subject of we did, he should have been accorded fined as breaches of the public duty an indi- impeachment.’’ 14 6 the protections of due process of law in vidual owed to their entire community. This line of reasoning is buttressed by the his trial. And even if we assume he has Blackstone viewed treason, murder, and rob- careful and thoughtful work of the House of bery as ‘‘public wrongs,’’ not only because Representatives during the Watergate pro- been, the House managers still did not they cause injury to individuals but also be- prove that he committed incitement to ceedings. The Democratic staff of the House cause they ‘‘strike at the very being of soci- Judiciary Committee concluded that, insurrection, the specific crime of 7 ety. ’’ ‘‘[b]ecause impeachment of a President is a Richard Wooddeson, a legal scholar who which he stands accused. This does not grave step for the nation, it is to be predi- began giving lectures on English law in 1777, excuse President Trump’s conduct on cated only upon conduct seriously incompat- defined impeachable offenses as misdeeds and around January 6 of this year, it ible with either the constitutional form and that fail to clearly fall under the jurisdiction satisfies my oath as a U.S. Senator in principles of our government or the proper of ordinary tribunals. These wrongs were this Court of Impeachment. I therefore performance of constitutional duties of the ‘‘abuse[s] of high offices of trust’’ that dam- presidential office.’’ 15 voted to acquit. aged the commonwealth.8 The deliberations at the Constitutional Mr. REED. Mr. President, I ask unan- Much the same as Blackstone and Convention also demonstrate a conscious imous consent to have my opinion Wooddeson, Alexander Hamilton included movement to narrow the terminology as a memorandum in the impeachment trial the dual components of abuse of public trust means of raising the threshold for the Im- and national harm in his definition of im- of President Donald J. Trump be print- peachment process to require an offense peachable crimes and misdemeanors. In Fed- ed in the RECORD. against the State. eralist Paper No. 65, Hamilton defined an im- There being no objection, the mate- Early in the debate on the issue of presi- peachable offense as ‘‘those offenses which rial was ordered to be printed in the dential Impeachment in July of 1787, it was proceed from the misconduct of public men, RECORD, as follows: suggested that Impeachment and removal or in other words from the abuse or violation could be founded on a showing of ‘‘mal- OPINION MEMORANDUM OF UNITED STATES of some public trust. They are of a nature practice,’’ ‘‘neglect of duty,’’ or ‘‘corrup- SENATOR JOHN F. REED IN THE IMPEACH- which may with peculiar propriety be de- tion.’’ 16 By September of 1787, the issue of MENT TRIAL OF PRESIDENT DONALD JOHN nominated POLITICAL, as they relate chief- presidential Impeachment had been referred TRUMP ly to injuries done immediately to the soci- to the Committee of Eleven, which was cre- I. FINDINGS ety itself.’’ 9 ated to resolve the most contentious issues. On January 13, 2021, the United States B. The Constitutional Debates House of Representatives passed House Reso- The Committee of Eleven considered Adding impressive support to these con- whether the grounds for Impeachment lution 24,1 ‘‘Impeaching Donald John Trump, sistent views of the meaning of the constitu- 17 This was President of the United States, for high should be ‘‘treason or bribery.’’ tional term, ‘‘high Crimes and Mis- significantly more restricted than the amor- crimes and misdemeanors.’’ demeanors,’’ is the history of the delibera- Based on the evidence in the record, the ar- phous standard of ‘‘malpractice,’’ too re- tions at the Constitutional Convention. guments of the House Impeachment Man- stricted, in fact, for some delegates. George The convention delegates considered lim- agers, and the arguments of President’s Mason objected and suggested that ‘‘mal- iting Impeachment to treason and bribery. Counsel, I conclude as follows: Mr. Trump administration’’ be added to ‘‘treason and However, they concluded that these enumer- 18 has violated his oath to take care that the bribery.’’ James Madison opposed this sug- ated offenses alone could not anticipate laws be faithfully executed and has acted in gestion as being ‘‘equivalent to a tenure dur- every manner of profound misconduct that a 19 a manner that is fundamentally incompat- ing pleasure of the Senate.’’ Mason re- future president might engage in.10 George ible with the constitutional order. The House sponded by further refining his suggestion Mason, a delegate from Virginia, declared Impeachment Managers have proven that and offered the term ‘‘other high crimes and that ‘‘high crimes and misdemeanors’’ would 20 Mr. Trump’s incitement of insurrection misdemeanors against the State.’’ The be an apt way to further capture ‘‘great and amounts to the constitutional standard of Mason language was a clear reference to the dangerous offences’’ or ‘‘[a]ttempts to sub- ‘‘high Crimes and Misdemeanors’’ for which English legal history of Impeachment. Ma- vert the Constitution.’’ 11 the remedy of conviction and disqualifica- son’s proposal explicitly narrowed these of- This wording would also set the nec- tion is warranted. fenses to those ‘‘against the State.’’ The essarily high threshold for Impeachment Convention itself further clarified the stand- II. THE CONSTITUTIONAL GROUNDS FOR that would be proportional to the severe ard by replacing ‘‘State’’ with the ‘‘United IMPEACHMENT punishment of removing an elected official States.’’ 21 ‘‘The Senate shall have the sole Power to and disqualification from holding future pub- At the conclusion of the substantive delib- 2 try all Impeachments.’’ With these few lic office. Further insight is provided by erations on the constitutional standard of words, the Framers of the Constitution en- James Iredell, a delegate to the North Caro- Impeachment, it was obvious that only seri- trusted the Senate with the most awesome lina Convention that ratified the Constitu- ous offenses against the governmental sys- power within a democratic society: whether tion, who later served as a Justice of the tem would justify Impeachment and subse- to remove an impeached president from of- United States Supreme Court. During the quent removal from office. However, the fice. Convention debates, Iredell stated: Committee of Style applied the final sty- A. High Crimes and Misdemeanors The power of impeachment is given by this listic touches to the Constitution. This Com- The Constitution states, ‘‘The President, Constitution, to bring great offenders to mittee had no authority to alter the mean- Vice President and all civil Officers of the punishment . . . This power is lodged in ing of the carefully debated language and

VerDate Sep 11 2014 05:58 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.013 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S927 could only impose a stylistic consistency D. Conclusion the Senate to accomplish, and thus the cur- through, among other things, the elimi- Authoritative commentary on, together rent proceeding before the Senate is void ab nation of redundancy. In its zeal to stream- with the structure of, the Constitution initio as a legal nullity that runs patently line the text, the words ‘‘against the United makes it clear that the term, ‘‘other high contrary to the plain language of the Con- States’’ were eliminated as unnecessary to Crimes and Misdemeanors,’’ encompasses stitution . . . Since removal from office by the meaning of the passage.22 conduct that involves the president in the the Senate of the President is a condition The weight of both authoritative com- impermissible exercise of the powers of his precedent which must occur before, and mentary and the history of the Constitu- office to upset the constitutional order. jointly with, ‘disqualification’ to hold future tional Convention combines to provide con- Moreover, since the essence of Impeachment office, the fact that the Senate presently is vincing proof that the Impeachment process is removal from office, rather than punish- unable to remove from office the 45th Presi- was reserved for serious breaches of the con- ment for offenses, there is a strong inference dent whose term has expired, means that stitutional order that threaten the country that the improper conduct must represent a Averment 1 is therefore irrelevant to any 34 in a direct and immediate manner. continuing threat to the American people matter before the Senate.’’ C. An Impeachable Offense is Not Limited to and the Constitution. Such logic ignores the historical context in Criminal Liability or a Defined Offense which the Impeachment power was drafted, IV. STANDARD OF PROOF Article I, Section 3 of the United States willfully misinterprets the language of the In an Impeachment trial, each Senator has Constitution provides that ‘‘Judgment in Constitution, rejects the precedent set by the obligation to establish the burden of Cases of Impeachment shall not extend fur- previous Senates, and promotes the dan- proof he or she deems proper.27 The Founding ther than to removal from Office, and dis- gerous concept of a ‘‘January Exception.’’ 35 Fathers believed maximum discretion was qualification to hold and enjoy any Office of Impeachment was not a revolutionary con- critical for Senators confronting the gravest honor, Trust or Profit under the United cept at the time the U.S. Constitution was of constitutional choices.28 Differentiating States: but the Party convicted shall never- drafted. The concept had long been part of Impeachment from criminal trials, Alex- theless be liable and subject to Indictment, English political custom, which framed ander Hamilton argued, in Federalist Paper Trial, Judgment and Punishment, according much of the Founder’s understanding of gov- No. 65, that Impeachments ‘‘can never be 36 to Law.’’ 23 As Delegate James Wilson wrote, ernment. Indeed, Alexander Hamilton ex- tied down by such strict rules . . . as in com- ‘‘impeachments, and offenses and offenders plicitly stated in Federalist No. 65 that the mon cases serve to limit the discretion of impeachable [do not come] within the sphere Impeachment power was borrowed from courts in favor of personal security.’’ 29 In 37 of ordinary jurisprudence. They are founded English political history. Thus, we can un- this regard, Hamilton further distinguished on different principles, are governed by dif- derstand the bounds of the Impeachment Impeachment proceedings from a criminal power from precedents set in English polit- ferent maxims, and are directed to different trial by stressing that an impeached official ical history. Two examples from the 18th objects: for this reason, the trial and punish- would be subject to the established rules of century are illustrative of the ment of an offense on an impeachment, is no criminal prosecution after Impeachment.30 impeachability of former officials. First, bar to a trial and punishment of the same of- However, what exact constitutional stand- ‘‘[i]n 1725, former Lord Chancellor fence at common law.’’ 24 The independence ard should be used remains debatable. Prac- Macclesfield was impeached and convicted of the Impeachment process from the pros- tical concerns related to utilizing the Im- for acts of bribery committed during his ten- ecution of crimes underscores the function of peachment power should be considered when ure in office.’’ 38 Second, at the time of the Impeachment as a means to remove a presi- determining the standard of proof required. Philadelphia Convention, Parliament was dent from office, not only because of crimi- Too low of a standard may lead to removal, preparing to conduct an Impeachment trial nal behavior, but because the president poses even if significant doubts exist. A ‘‘. . . high against Warren Hastings, the former Gov- a threat to the constitutional order. Crimi- ‘criminal’ standard of proof could mean, in ernor General of Bengal. These proceedings nal behavior is not irrelevant to an Impeach- practice, that a man could remain president commenced after Hastings had retired from ment, but it only becomes decisive if that be- whom every member of the Senate believed his office. ‘‘The Framers were acutely aware havior imperils the balance of powers estab- to be guilty of corruption, just because his of the Hastings proceeding, with George lished in the Constitution. guilt was not shown ‘beyond a reasonable Mason raising it as an example during debate The assertion that an impeachable offense doubt.’ ’’ 31 on the Impeachment clauses.’’ 39 If the Fram- must be predicated on a criminal act goes When uncertain about the standard of ers had misgivings about Impeachment of against the well-established consensus of the proof to apply, it is worth reviewing the former officials, a concept that would have legal community. For example, Mr. Trump’s writings of eminent scholars. In doing so, I been on the public mind given Mr. Hastings’ former Attorney General, William Barr, have found a closer approximation to what impending Impeachment trial, surely they wrote in a 2018 memo to the Department of the standard should be in many Impeach- would have clarified the wording of the Im- Justice (DOJ) when he was still in private ment trials as compared to those used in peachment power in the U.S. Constitution. practice, that the President ‘‘is answerable general legal practice: ‘‘ ‘[o]verwhelming pre- The practice of impeaching former officers for any abuses of discretion and is ulti- ponderance of the evidence’ . . .’’ 32 Yet, I be- was also common in the early state govern- mately subject to the judgment of Congress lieve that the severity of removing a presi- ments. ‘‘Between 1776 and 1787, 10 of the through the impeachment process [which] dent of the United States warrants an even newly independent states adopted constitu- means that the president is not the judge in higher bar. As such, a definition slightly tions that included impeachment provisions. his own cause.’’ 25 As Mr. Barr makes clear, modified, but modeled on that proposed Five specifically permitted late Impeach- Impeachment does not need to be based on a standard, is more applicable: overwhelm- ment; no state explicitly forbade it.’’ 40 More- crime. over, some state constitutions only allowed Furthermore, any assertion that an im- ingly clear and convincing evidence. This standard more closely comports with histor- the Impeachment of former officials, mean- peachable offense must involve the violation ing that future disqualification from office of an ‘‘already known or established’’ law, ical analysis of the Founders’ desire to sepa- rate criminal law and Impeachment and the was central to the very purpose of Impeach- even if not criminal, is not supported by the ment.41 For example, Thomas Jefferson un- constitutional record. In advocating for the arguments made by scholars, while reflect- ing the serious constitutional harms alleged derwent an Impeachment inquiry in 1781 inclusion of Impeachment at the Constitu- after his tenure as governor ended.42 What tional Convention, James Madison made the in the Article of Impeachment before the Senate. purpose could such a late inquiry have ex- case that the country must be protected cept to attempt to disqualify a former offi- V. CONSTITUTIONALITY OF IMPEACHMENT TRIAL against any number of abuses that a presi- cial from holding office again in the future? dent could engage in and which might cause The President’s Counsel has argued that an The influence of the early state constitu- permanent damage to the country. Madison Impeachment trial conducted after a presi- tions on the drafting of the U.S. Constitu- wrote that: dent leaves office is unconstitutional. Spe- tion is widely accepted. This influence no [It was] indispensable that some provision cifically, they write, in their trial brief, ‘‘It doubt extended to the Framer’s under- should be made for defending the Commu- is denied that the quoted provision [Article standing of the Impeachment power as in- nity [against] the incapacity, negligence or I, Section 4] currently applies to the 45th cluding former officials.43 perfidy of the chief Magistrate. The limita- President of the United States since he is no Indeed, the language of the U.S. Constitu- tion of the period of his service, was not a longer ‘President’.’’ 33 The President’s Coun- tion proves this out. Article I, Section 3, sufficient security[. . .] He might pervert his sel hinge their argument on the wording of Clause 6 states, ‘‘The Senate shall have the administration into a scheme of peculation Article II, Section 4, which reads, ‘‘The sole Power to try all Impeachments.’’ That or oppression. He might betray his trust to President, Vice President and all Civil Offi- is, the Senate has the power to conduct a foreign powers.26 cers of the United States, shall be removed trial for any Impeachment commenced by Confining Impeachment to criminal or from Office on Impeachment for, and Convic- the House of Representatives without quali- even codified offenses goes against the main- tion of, Treason, Bribery, or other high fication regarding its timing. The House im- stream consensus on the meaning of ‘‘high Crimes and Misdemeanors.’’ The President’s peached Mr. Trump, and it is now in the con- Crimes and Misdemeanors’’ and would fail to Counsel argue that since Mr. Trump is no stitutional power of the Senate to conduct capture the universe of harms to the con- longer the president, an Impeachment trial. Article I further out- stitutional order in which a President could ‘‘[T]he clause ‘shall be removed from Office lines two possible penalties in any Impeach- engage. on Impeachment for . . .’ is impossible for ment trial: removal and disqualification.

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.031 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S928 CONGRESSIONAL RECORD — SENATE March 1, 2021 The Senate cannot exceed these penalties, Constitution did not intend to grant Mr. tion of the Senate is to accord the president, nor are these penalties necessarily linked by Trump a January reprieve from account- as the accused, the right to conduct his de- the language of the text. The Senate has the ability. He must be held accountable for his fense fairly, while respecting the House of power to remove a president without also actions during the last weeks of his presi- Representative’s exclusive constitutional disqualifying him or her from future office. dency. prerogative to bring Articles of Impeach- Likewise, legal scholars assert that disquali- VI. DUE PROCESS ment. At the core of the Senate’s task is the fication from office need not follow removal fundamental understanding that our system The President’s Counsel assert that the from office.44 Such a reading would neuter of laws recognizes the rights of defendants Impeachment inquiry is defective because of the ability of the Senate to disqualify offi- and the responsibilities of the prosecution to a lack of due process protections for Mr. cials from future office upon their resigna- prove its case. Trump. However, the Constitution does not tion. Hence, an official accused of crimes Based on the above analysis, I find that provide any guidance about what procedures against the political order could simply re- there is overwhelmingly clear and con- are proscribed in an Impeachment trial. Ar- sign to avoid punishment and potentially re- vincing evidence that Mr. Trump was af- take office in the future. The Framers under- ticle II, Section 3 states, ‘‘The Senate shall forded due process in this Impeachment pro- stood that the power of a demagogic presi- have the sole power to try all Impeach- ceeding. ments.’’ 54 Alexander Hamilton provides con- dent extends beyond his tenure of office. The VII. INCITEMENT OF INSURRECTION text to this in Federalist Paper No. 65, say- disqualification component of the Impeach- House Resolution 24 alleges that, in the ment power is the constitutional method for ing that Impeachments ‘‘can never be tied down by such strict rules . . . as in common conduct of his office, Mr. Trump incited an addressing this dangerous potentiality, for it insurrection, in violation of his constitu- establishes ‘‘a perpetual ostracism from the cases serve to limit the discretion of courts in favor of personal security.’’ 55 tional duty to take care that the laws be esteem and confidence, and honors and faithfully executed, and in subversion of the emoluments of his country.’’ 45 Specifically, President’s Counsel asserts that the Speaker of the House purposefully constitutional order. I find that there is In accordance with English political his- overwhelmingly clear and convincing evi- tory, the early state constitutions, and the held onto the Article of Impeachment, passed by the House of Representatives, in dence that Mr. Trump committed impeach- clear language of the U.S. Constitution, the able conduct. As I will further explain, Mr. Senate has repeatedly asserted its right to order to ensure that Mr. Trump’s term would end before a Senate trial commenced. How- Trump must be convicted and disqualified conduct an Impeachment trial of former gov- from holding office for the conduct described ever, at the time H. Res. 24 passed, the Sen- ernment officials. The first Impeachment in H. Res. 24. trial concerned Senator William Blount of ate was in recess and not scheduled to return A. Legal Standards for Incitement Tennessee on the charge of conspiracy. After until January 19th. The Senate Minority the Senate expelled Blount from the body in Leader urged the Senate Majority Leader to As explained in Section III, Congress is July of 1797, the House brought five articles bring the Senate back into session imme- bound neither by civil nor criminal law in of Impeachment against the former senator diately in order to receive the Article of Im- determining whether an offense meets the in January of 1798 with the intention of dis- peachment. However, the Senate Majority standard of ‘‘high Crimes or Misdemeanors.’’ qualifying him from holding office in the fu- Leader rejected this request, meaning that However, existing legal frameworks for ‘‘in- ture.46 Most scholars agree that the Senate even if the House of Representatives had citement’’ are helpful for analyzing and put- dismissed the case on the grounds that the tried to send the Article to the Senate imme- ting Mr. Trump’s words and conduct into Impeachment power does not extend to diately after passage, it would not have been context. Black’s Law Dictionary defines incitement Members of Congress.47 The Senate did not, considered until the Senate was back in ses- however, dismiss the case on the basis that sion.56 generally as ‘‘the act or an instance of pro- voking, urging on, or stirring up.’’ 62 Specifi- Blount was a former official.48 The Senate President’s Counsel also assert that the once again asserted its right to conduct an House of Representatives did not provide cally in regards to criminal law, Black’s Law Impeachment trial of a former official in the proper due process because it did not hold Dictionary defines incitement as ‘‘the act of 1876 case of ex-Secretary of War William hearings on the Article of Impeachment. persuading another person to commit a 63 Belknap. The House voted to impeach Manager Lieu analogized the present facts to crime.’’ A group of constitutional law scholars ex- Belknap after he resigned. The Senate then a case where crimes are committed in plain plained that, for the purposes of Impeach- debated the constitutionality of late view, and prosecutors do not have to spend a ment, a determination of whether a presi- impeachability before asserting in a 37–29 prolonged time investigating before pressing dent’s speech or conduct is protected must charges.57 In this case, the events in ques- vote that it had the power to try an ex-offi- primarily take into account whether a presi- 49 tion—the ‘‘Save America’’ rally, the Elec- cer. Though Belknap was not ultimately dent’s words are consistent with the Con- toral Certification, and the ensuing insurrec- convicted, the Senate had decided that it had stitution 64 and the oath to ‘‘faithfully exe- the power to convict and disqualify an ex-of- tion—were widely broadcast on television cute the office of President of the United ficial. Congress acted once more in the 1926 and in news publications. Those who took States, and . . . preserve, protect and defend case of federal judge George English. The part in the attack also documented their the Constitution of the United States.’’ 65 House of Representatives chose not to fur- participation over social media including on For example, if a president said ‘‘I no longer 58 ther pursue Impeachment after English’s res- Twitter, Instagram, and YouTube. In the promise to support and defend the Constitu- ignation, but the House Managers declared aftermath of the insurrection, participants tion of the United States’’ or ‘‘I no longer ‘‘the resignation of Judge English in no way were arrested and indicted for their unlawful recognize Congress as a co-equal branch of affects the right of the Senate, sitting as a and violent actions, and their charging docu- government,’’ these statements would cer- 59 court of impeachment, to hear and deter- ments were available to the public. tainly be inherently antithetical to the con- mine [the case].’’ 50 Several Senators simi- In addition, President’s Counsel, through- stitutional order that the president swore to larly declared the jurisdiction of the Senate out this case, has conflated the requirements uphold. While these statements may be law- in the case of Judge English.51 As these cases of an Impeachment proceeding with that of a ful and protected by the Constitution in an- demonstrate, the Senate has repeatedly de- criminal case, where the Due Process Clause other context, they would certainly be im- clared its late-Impeachment powers, though of the Fifth Amendment applies. These peachable. it has rarely chosen to purse Impeachment.52 claims are spurious at best. As constitu- Turning to the definition of ‘‘insurrection’’ Finally, the denial of late impeachability tional scholar Michael Gerhardt stated in re- itself, the Corpus Juris Secundum defines it promotes the dangerous and unconstitu- gards to Mr. Trump first Impeachment, as ‘‘the act of rising in open resistance tional idea of a ‘‘January Exception.’’ One of ‘‘First, the [Due Process] clause does not against established authority or govern- the central concerns of the Framers was the apply because none of the interests protected ment, or as any open and active opposition diffusion of power across branches in a sys- by the due process clause are being denied of a number of persons to the execution of tem of checks and balances to prevent any here—the sanctions are removal and dis- the laws of the United States of so formi- one branch, but particularly the executive, qualification but not the deprivation of life, dable a character as to deny, for the time from gaining too much power. Impeachment liberty, or property, which the clause pro- being, the authority of the government, even is the last line of defense created to hold of- tects. Second, even if due process applies, it though not accompanied by bloodshed and ficials accountable for their abuse of those has been satisfied here: The minimal require- not of sufficient magnitude to render success powers. Hence the time between election and ments of due process are an impartial deci- probable.’’ 66 inauguration is not a consequence-free pe- sion-maker and notice. The president has Based on these sources, I will examine the riod for an outgoing president. A president had plenty of notice about the impeachment following questions, in order to determine who commits an impeachable offense on the effort, and the Constitution designates sen- whether Mr. Trump incited his supporters to night before his term ends is still account- ators as the impartial decision-makers.’’ 60 commit insurrection, able for those actions when he leaves the ‘‘The Supreme Court has explained . . . (1) What was Mr. Trump’s pattern of Oval Office. After his term as president, that due process is not a ‘technical concep- speech or conduct prior to the January 6th John Quincy Adams proclaimed, ‘‘I hold my- tion with a fixed content unrelated to time, ‘‘Save America’’ rally? self, so long as I have the breath of life in my place, and circumstances.’ Instead, the con- (2) Did Mr. Trump foreseeably or recklessly body, amendable to impeachment by [the] cept is ‘flexible and calls for such procedural solicit his supporters to believe his election House for everything I did during the time I protections as the particular situation de- lies, and know that his supporters would held any public office.’’ 53 The Framers of the mands.’ ’’ 61 In an Impeachment, the obliga- take action based on these lies?

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.032 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S929 (3) Did Mr. Trump’s speech or conduct fraud, fraud that has never been seen like at statehouses in Michigan, Idaho, and Or- drive his supporters to commit unlawful or this before.’’ 75 egon.85 These disruptive and aggressive violent acts on January 6th? The day after Christmas 2020, Mr. Trump methods were in essence a prelude to what (4) What steps did Mr. Trump take once the sought to escalate his narrative that there happened during the assault on the Capitol. rioters had breached the Capitol? was a mass effort to deprive him of a second This anger boiled over when six men plot- B. Leading Up to January 6, 2021, Mr. Trump term. He sent out a series of tweets attack- ted to kidnap Michigan Governor Gretchen Propagated a False Narrative that the Elec- ing executive branch agencies, the federal ju- Whitmer because they were angry about the tion Had Been Stolen and Supported Vio- diciary, and Senate Republicans, claiming state’s coronavirus policies.86 When the Fed- lent Rhetoric that they had not done enough to prevent eral Bureau of Investigation foiled the plot, Mr. Trump added fuel to the fire, and at- To determine whether Mr. Trump engaged voter fraud. He tweeted that the Supreme tacked Governor Whitmer over Twitter. He in incitement, it is instructive to look at a Court ‘‘has been totally incompetent and weak timeline of Mr. Trump’s statements, direct on the massive Election Fraud that took place.’’ tweeted, ‘‘Governor Whitmer of Michigan has acts, and actions taken at his behest, leading He also tweeted that ‘‘The ‘Justice’ Depart- done a terrible job. She locked down her state up to January 6th. ment and the FBI have done nothing about the for everyone, except her husband’s boating ac- 2020 Presidential Election Voter Fraud.’’ Fur- tivities . . . My Justice Department and Federal a. Statements and Conduct Regarding Voter thermore, he leveled the claim that ‘‘If a Law Enforcement announced . . . today that Fraud Before the 2020 Election Democrat Presidential Candidate had an Elec- they foiled a dangerous plot against the Gov- Even before the November 2020 election, tion Rigged & Stolen, with proof of such acts at ernor of Michigan. Rather than say thank you, Mr. Trump gave credence to the idea that a level never seen before, the Democrat Senators she calls me a White Supremacist—while Biden mass voter fraud would be inevitable, and would consider it an act of war, and fight to the and Democrats refuse to condemn Antifa, Anar- the only way he would lose was if the elec- death. Mitch & the Republicans do NOTH- chists, Looters and Mobs that burn down Demo- tion were stolen. For example, in July, Mr. ING.’’ 76 crat run cities.’’ 87 Trump tweeted ‘‘With Universal Mail-In Vot- As late as January 4th, Mr. Trump held a Furthermore, in November 2020, Mr. Trump ing (not Absentee Voting, which is good), 2020 rally before the Georgia Senate runoff say- embraced a group of his followers who will be the most INACCURATE & FRAUDU- ing, ‘‘When you win in a landslide and they sought to intimidate supporters of his polit- LENT Election in history.’’ 67 At an August steal it and it’s rigged, it’s not acceptable. ical opponent. He posted a video of his sup- rally in Wisconsin, Trump said ‘‘The only Not acceptable.’’ The crowd chanted, ‘‘Fight porters in different cars surrounding a Biden way we’re going to lose this election is if the for Trump!’’ and Mr. Trump responded, campaign bus in Texas. Mr. Trump cheered election is rigged, remember that . . . It’s ‘‘They’re not going to take the White House. this kind of intimidation, tweeting, ‘‘I LOVE the only way we’re going to lose this elec- We’re going to fight like hell.’’ 77 TEXAS’’ and ‘‘In my opinion, these patriots did tion. So we have to be very careful.’’ 68 In In addition to his dishonest rhetoric on nothing wrong.’’ 88 At a rally in Michigan, Mr. September, he told reporters, from the White election fraud, Mr. Trump took concrete Trump even praised his supporters’ actions House lawn, ‘‘I’m not sure that it [the elec- steps to bend reality to match what he want- saying, ‘‘Did you see the way our people, tion] can be [honest], I don’t know that it ed. As I will explain in more detail in Sec- they were, ya know, protecting this bus . . . can be with this whole situation, unsolicited tion VIII, Mr. Trump used any means nec- because they’re nice . . . They had hundreds ballots, they’re unsolicited, millions being essary to cajole, intimidate, and threaten in- of cars. Trump! Trump! Trump and the sent to everybody.’’ 69 dividuals at all levels of government to use American flag.’’ 89 Before the election took place, Mr. Trump their authority to reject, and in some cases After Mr. Biden was declared the winner, also refused to say whether he would accept alter, the electoral votes for Mr. Biden.78 Mr. Trump focused his ire in the following the election results. In a July interview with It is important to note that Mr. Trump weeks on changing the election results in Chris Wallace, when asked directly whether forcefully pushed these lies, no matter how Georgia. Mr. Trump’s relentless claims of he would accept the results of the election, divorced from reality they became. In the voter fraud in Georgia were followed by a Trump said ‘‘Look, you—I have to see. No, weeks after the election, it became painstak- wave of death threats against state election I’m not going to just say yes.’’ 70 In Sep- ingly clear that Mr. Biden was the winner, as officials. Gabriel Sterling, an election offi- tember, when asked by a reporter if he would states moved to certify his results. In states cial in Georgia, pleaded with Mr. Trump to commit to a peaceful transfer of power, Mr. where the Trump campaign asked for elec- denounce the threats of violence, clearly ar- Trump implied that he would not, saying tion audits, subsequent recounts provided no ticulating the risks of failing to do so. Ster- ‘‘Get rid of the ballots and you’ll have a very compelling evidence that Mr. Trump had ling said, ‘‘Mr. President, it looks like you peaceful—there won’t be a transfer, frankly. won by a landslide.79 He and his allies filed likely lost the state of Georgia. We’re inves- There will be a continuation.’’ In the same and lost over 60 lawsuits alleging voting tigating. There’s always a possibility, I get month, when asked by a reporter whether irregularities in state and federal court, in- it, and you have the rights to go through the the election results would be legitimate only cluding the Supreme Court.80 His Attorney courts. What you don’t have the ability to if he won, Mr. Trump did not give a direct General attested that the Justice Depart- do—and you need to step up and say this—is answer, saying, ‘‘So we have to be very care- ment discovered no voting fraud ‘‘on a scale stop inspiring people to commit potential ful with the ballots. The ballots—that’s a that could have effected a different outcome acts of violence. Someone’s going to get whole big scam.’’ 71 in the election.’’ 81 Top election officials put hurt. Someone’s going to get shot. Some- b. Statements and Conduct Regarding Voter out a statement saying, ‘‘The November 3rd one’s going to get killed. And it’s not Fraud After 2020 Election election was the most secure in American right.’’ 90 history . . . There is no evidence that any Once the 2020 election was over, Mr. Trump d. Mr. Trump Supported Extremist Groups voting system deleted or lost votes, changed made it clear that he would concede under Mr. Trump made statements supporting, or votes, or was in any way compromised.’’ 82 no circumstances, and continued his full- failing to condemn members of extremist The day before the Capitol insurrection, even court press urging Americans not to accept groups, many of whom came together to Vice President Mike Pence told Mr. Trump the election results. In a statement after Mr. storm the Capitol on January 6th. that he had a constitutional duty to certify Biden was projected the winner, Mr. Trump Famously, during the first presidential de- the true winner of the election, which was said, ‘‘The simple fact is this election is far from bate on September 29th, when asked to con- Mr. Biden.83 over . . . Beginning Monday, our campaign will demn white supremacist groups, like the Yet, throughout all of this and despite un- start prosecuting our case in court to ensure Proud Boys, Trump refused. Instead, he an- deniable evidence to the contrary, Mr. election laws are fully upheld and the rightful nounced, ‘‘Proud Boys—stand back and stand Trump doggedly claimed that he had won the winner is seated. The American People are enti- by.’’ 91 The Proud Boys group took this as an election, and that his supporters should help tled to an honest election: that means counting explicit endorsement of their violent tactics vindicate him. He lied to the American peo- all legal ballots, and not counting any illegal and ideology.92 A known social media ac- ple, and did so knowingly and deliberately. ballots. This is the only way to ensure the pub- count associated with the Proud Boys made lic has full confidence in our election.’’ 72 c. Mr. Trump Invoked Violent Means to Fur- ‘‘Stand back and stand by’’ its new slogan, Mr. Trump escalated his attack on the ther His Re-Election and Proud Boys leader Joe Biggs likewise election results by posting a speech on De- Leading up to January 6th, Mr. Trump sup- posted that he was ‘‘standing by.’’ 93 cember 2nd, which he taped from behind the ported—either tacitly or outright—the use of Mr. Trump also made statements and used presidential lectern and characterized as po- violent and menacing tactics by his sup- social media to pander to Q’Anon, a con- tentially ‘‘the most important speech I’ve porters. For example, in the spring of 2020, spiracy movement, including by retweeting ever made.’’ 73 Over the course of 46 minutes, Mr. Trump embraced the backlash against messages from Q’Anon followers on Twitter Mr. Trump repeated the same baseless COVID–19 policies to aid his re-election. Fol- hundreds of times before his account was claims of voter fraud, and refused to ac- lowing armed protests over stay-at-home or- suspended.94 When pressed on his views on knowledge his loss. Mr. Trump said the na- ders, he tweeted ‘‘LIBERATE MINNESOTA!’’, Q’Anon, Mr. Trump appeared to defend the tion’s election system was ‘‘under coordi- ‘‘LIBERATE MICHIGAN!’’ and ‘‘LIBERATE movement. On August 19th, Mr. Trump tac- nated assault and siege’’ and declared that it VIRGINIA, and save your great 2nd Amend- itly endorsed QAnon at a press conference, was ‘‘statistically impossible’’ for him to ment. It is under siege!’’ 84 During some of the saying, ‘‘I don’t know much about the move- have lost to Mr. Biden.74 His overall claim anti-lockdown protests, armed groups at- ment, other than I understand they like me was that, ‘‘This election is about great voter tempted to derail the legislative proceedings very much. Which I appreciate.’’ 95 In a town

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.033 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S930 CONGRESSIONAL RECORD — SENATE March 1, 2021 hall on October 15th, Mr. Trump praised to foreseeably and recklessly goad his sup- By 12:53pm, a large group of Trump sup- Q’Anon members again, this time saying, porters into action. We know this because porters approached a fenced off area in front ‘‘Let me just—let me just tell you, what I do there is evidence that his supporters were of the Capitol and began to engage with Cap- hear about it, is they are very strongly buying into his delegitimizing the election, itol police officers, many of whom were against pedophilia. And I agree with that. I his encouragement of taking action to over- armed only with mace and their side arms.116 mean, I do agree with that. And I agree with turn the electoral process, and his support b. The Insurrection Begins it very strongly.’’ 96 for violent tactics. The crowd pushed past the barricade, e. Mr. Trump Organized the January 6th Mr. Trump’s promotion of themes such as knocking down police officers in the process, ‘‘Save America’’ Rally ‘‘Stop the Count’’ and ‘‘Stop the Steal’’ in an attempt to get closer to the building. served to gin up his supporters. Manager In the days leading up to January 6th, Mr. Within minutes, protestors began swarming Swalwell pointed out that Mr. Trump spent Trump sent out numerous tweets promoting other entrances of the Capitol.117 Inside the ‘‘millions of dollars to amplify that lie . . . the ‘‘Save America Rally’’ and gave his sup- Capitol, Vice President Pence presided over [I]n mid-December, President Trump an- porters specific instructions on when and the joint session of Congress. Contrary to where to attend. On December 19th, he nounced the release of ads, including ones the wishes of Mr. Trump, Vice President tweeted, ‘‘Big protest in D.C. on January 6th entitled ‘’The Evidence is Overwhelming— Pence began the process of certifying the . . . Be there, will be wild!’’ 97 On December 27, FRAUD!’’ and ‘‘STOP THE STEAL.’’ He election results. Outside the Capitol, the he tweeted ‘‘See you in Washington, DC, on spent $50 million from his legal defense fund crowd of protestors grew more violent. ‘‘Ri- January 6th. Don’t miss it. Information to fol- on these ads to stop the steal and amplify his oters wearing Trump paraphernalia shoved low.’’ 98 On January 1, 2021, he tweeted, ‘‘The message. They were released nationally, and punched Capitol Police officers, gouged BIG Protest Rally in Washington, D.C. will take played in video ads, online advertising, and their eyes, assaulted them with pepper spray 107 place at 11:00 A.M. on January 6th. Locational targeted text messages.’’ and projectiles, and denounced them as ‘cow- His supporters took these ideas literally— 118 details to follow. StopTheSteal!’’ 99 The day be- ards’ and ‘traitors.’ ’’ Law enforcement of- fore, he posted, ‘‘I will be speaking at the angrily converging upon vote centers on No- ficers were attacked with baseball bats, SAVE AMERICA RALLY tomorrow on the El- vember 5th to protest the continued count- crutches, hockey sticks, flag poles, and fire 108 119 lipse at 11AM Eastern. Arrive early—doors open ing of ballots after Election Day. Trump extinguishers. Some rioters came armed 100 supporters formed ‘‘Stop the Steal’’ online with handguns, pepper spray, knives, and at 7AM Eastern. BIG CROWDS!’’ 120 Mr. Trump not only knew, but actively co- groups, which became a hotbed for sharing brass knuckles. Congressional staff and re- ordinated the January 6th rally in order to false claims and misleading videos about porters were warned to stay away from win- 121 disrupt the congressional proceedings that voter fraud. In November and December, his dows and doors. day. First, Mr. Trump chose to convene a supporters held ‘‘Stop the Steal’’ rallies c. Rioters Storm the Capitol rally on the same day as the electoral cer- around the country. It was widely publicized Between 2pm and 2:30pm, rioters broke tification, and then explicitly urged his sup- that, at some of these events, participants through multiple entrances and began push- porters to attend what he predicted would be were armed and belligerent. Notably, on De- ing deeper into the Capitol, flooding the Ro- a ‘‘wild’’ and ‘‘historic’’ day. Manager cember 12th, they staged the Second Million tunda, Crypt, Statuary Hall, and other loca- Plaskett underscored that it was only after MAGA March in Washington, D.C., which re- tions.122 Videos captured by rioters show the Mr. Trump chose that day that the Pro- sulted in violent clashes between Proud Boy crowd, many in Trump paraphernalia, chant- 109 Trump group, Women for America First, ob- members and counter protestors. Mr. ing ‘‘Stop the Steal’’ and ‘‘U.S.A.’’ as they tained a permit for what became the ‘‘Save Trump promoted these rallies on his social breached the Capitol and overpowered secu- America’’ rally at the Ellipse.101 The day media, and, in some instances, heaped praise rity.123 110 after Women for America First announced on his supporters for fighting. Meanwhile, the Joint Session had sepa- the rally, Mr. Trump reposted their invita- The evidence showed that Mr. Trump’s pro- rated into different chambers. The Senate tion and replied ‘‘I will be there Historic motion of the ‘‘Save America’’ rally suc- was in the midst of a debate regarding an ob- day!’’ 102 Manager Plaskett stated that the ceeded in convincing his supporters to show jection to certifying Arizona’s Electoral Col- Trump campaign even ‘‘became directly in- up at the time and place he named on Janu- lege votes.124 Secret Service rushed Vice volved with the planning of the event, in- ary 6th. Many of Mr. Trump’s supporters said President Pence out of the Senate chambers cluding the speaking line-up and even the that they felt summoned to Washington, and took him and members of his family to music to be played and brought in the same D.C. to take retaliatory action. In a Parler a secure location within the Capitol.125 Cap- people who spoke at the second Million post before the insurrection, a supporter itol Police officer Eugene Goodman led riot- MAGA rally to help.’’ 103 Notably, Vice Presi- shared one of Mr. Trump’s tweets and wrote, ers away from the entrance to the Senate dent Pence’s sister-in-law is on the advisory ‘‘This isn’t a joke, this is where and when we chambers, narrowly avoiding a potentially board of Women for Trump, which has ties to make our stand. #January6th, Washington deadly encounter between Members of the 126 Women for America First—thus blurring the DC. Be there, no matter what. Nothing is Senate and rioters. Senators were then 111 127 lines between the Trump administration and more important.’’ In a statement taped on evacuated from the Chamber. On the other side of the Capitol, the House the organizers of the January 6th rally.104 a livestream video taken during the insur- Manager Plaskett also emphasized that rection, a man is heard saying, ‘‘Our presi- went into recess and members were told to 128 Mr. Trump’s top advisors and the Trump dent wants us here We wait and take orders lock down and shelter in place. By 2:45 pm, communications team were actively moni- from our president.’’ 112 In court papers and members of the Capitol Security Team were toring posts from mainstream websites such interviews given after the insurrection, pro- forced to barricade the doors to the Chamber as insurrectionists attempted to break in. as Twitter and Facebook, as well as pro- Trump rioters said they joined the march be- House Members were instructed to put on Trump message boards on Reddit and cause the president encouraged them to do 113 gas masks and some attempted to build 4Chan.105 Posters wrote about preparations so. makeshift shelters in case the mob broke for the rally in Washington, D.C. to take I find overwhelmingly clear and convincing through the doors.129 Members who were on their election back, by violent means if nec- evidence that Mr. Trump and his allies the ground level were evacuated through the essary, on these message boards. His sup- foreseeably and recklessly solicited his sup- Speaker’s Lobby as Capitol Security guarded porters posted hundreds of messages out- porters to help him overturn the election re- the door with guns.130 Ashli Babbitt, an Air lining their plans for January 6th. They dis- sults—including most prominently by at- Force veteran, was fatally shot as she and cussed how to physically breach the Capitol tending the January 6th rally to disrupt the Electoral College certification. others tried to break through the barricaded grounds, which individuals to target once in- 131 D. Mr. Trump’s Supporters Committed Unlawful glass door. Members, reporters, and staff side, and which weapons and tactical gear to in the Gallery remained trapped one floor 106 Acts of Insurrection on January 6th take with them. above the rioters. Videos taken during the In this section, I outlined Mr. Trump’s a. Trump Speaks at the ‘‘Save America’’ Rally events on January 6th show this group sit- words and actions leading up to the attack After months of fomenting anger over his ting and lying down in the aisles in an at- on the Capitol. I will now move onto exam- false claims of election fraud, Mr. Trump tempt to shelter behind the chairs.132 One ining whether Mr. Trump foreseeably or gathered his supporters at the ‘‘Save Amer- particularly moving photo shows Represent- recklessly persuaded his supporters into be- ica’’ rally on January 6th. Once there, Mr. ative Jason Crow (D-CO), a former Army lieving his voter fraud lies and taking action Trump told the crowd ‘‘We’re going to walk Ranger, comforting Representative Susan at his behest to prevent what he considered down to the Capitol because you’ll never Wild (D-PA) as the pair sheltered in the Gal- a stolen election. take back our country with weakness. You lery.133 Rep. Crow recounted that he was C. Mr. Trump Foreseeably and Recklessly Per- have to show strength and you have to be doing what any friend would do, telling Rep. suaded His Supporters That the Election strong.’’ 114 This was a continuation of a pat- Wild ‘‘that I was there for her, and that we Was Stolen tern of violent rhetoric by Mr. Trump lead- would get through it.’’ 134 Another video Mr. Trump spread lies, conspiracy theories, ing up to the events at the Capitol. For ex- shows Rep. Lisa Blunt Rochester (D-DE) and incendiary rhetoric before and after the ample, Mr. Trump had previously told fol- praying loudly in the Gallery for safety and 2020 election. He did so with the under- lowers to ‘‘Fight like Hell’’ at rallies. He re- peace as she and other lawmakers, including standing that it would inflame his sup- peated this language at the rally at noon on Rep. Pramila Jayapal (D-WA), watched Cap- porters and enlist their aid in helping him January 6th stating, ‘‘[W]e fight. We fight itol Police officers barricade the door to the disrupt the electoral process. The effect was like hell.’’ 115 His supporters got the message. Chamber.135

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.034 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S931 d. The Rioters Target Vice President Pence Capitol Police were treated cruelly by the ratified the Constitution by 1792, thirteen and Speaker Pelosi mob. Over the course of the insurrection, 140 had laws limiting libelous or blasphemous As members of Congress moved to secure police officers were injured and one officer, speech.152 In addition, the Supreme Court has locations or sheltered in place, rioters Brian Sicknick, was killed. Four rioters also recognized specific categories of speech that walked the halls carrying Confederate flags, died. Congressional Leadership offices were are not protected by the First Amendment vandalizing the building, and breaking into trashed, the walls of the Capitol bore the and which the government may regulate be- congressional offices, including the office of marks of bullets, monuments were de- cause of their content. These categories are Speaker of the House Nancy Pelosi.136 One ri- stroyed, windows were smashed and broken ‘‘obscenity, defamation, fraud, incitement, oter said that he and other rioters ‘‘kicked in, Members and staff were terrorized, Sen- fighting words, true threats, speech integral in Nancy Pelosi’s office door’’ and that ate desks were ransacked, and smoke hung to criminal conduct, and child pornog- ‘‘Crazy Nancy probably would have been torn in the air. Mr. Trump should have pleaded raphy.’’ 153 into little pieces but she was nowhere to be with the crowd to stand down and leave the The relevant legal framework for incite- seen.’’ 137 The use of the term ‘‘Crazy Nancy’’ Capitol as soon as the insurrection began. ment was established by the U.S. Supreme is significant, for this is Mr. Trump’s nick- The fact that he waited to address the riot- Court in the 1969 case of Brandenburg v. name for the Speaker of the House. Vice ers, and downplayed the severity of the in- Ohio.154 In that case, a Ku Klux Klan leader, President Mike Pence was another primary surrection to the point of even praising the Clarence Brandenburg, was convicted after target for the most violent sections of the patriotism of the rioters, was not just dere- making a speech at a Klan rally that appar- mob. ‘‘Once we found out Pence turned on us liction of duty. It was malicious disregard ently broke an Ohio law against and that they had stolen the election, like, for the lives of Capitol Police, Members of ‘‘advocat[ing] crime, sabotage, violence, or officially, the crowd went crazy,’’ said one ri- Congress, staff, and Capitol workers threat- unlawful methods of terrorism as a means of oter.138 Rioters called for Pence’s death.139 ened by the mob that he incited. accomplishing industrial or political re- 155 Throughout the Capitol, Members and their form.’’ The Supreme Court overturned f. The Capitol is Cleared and the Election Re- Brandenburg’s conviction and struck down staff barricaded themselves in offices, hid sults are Certified under tables, called loved ones, and prayed the statute on First Amendment grounds. In It took more than four hours after the riot- doing so, the Court articulated a new test for for safety.140 ers first entered the building to secure the when advocating for violence or lawbreaking e. The President Fails to Respond to or Con- Capitol and another three hours before the could be criminally prosecuted. The Bran- demn the Violence at the Capitol Joint Session could resume.148 Nevertheless, denburg test defines unprotected incitement President’s Counsel argue that the Presi- Joseph R. Biden Jr. was confirmed the win- as speech that is ‘‘directed to inciting or pro- dent did not intend or anticipate for violence ner of the 2020 election at approximately ducing imminent lawless action and is likely to take place. If that were the case, one 4am.149 Democracy prevailed. to incite or produce such action.’’ 156 would expect that—as soon as it was clear E. The First Amendment Is Not a Defense to Mr. Subsequent cases further clarified the ‘‘im- that the rioters had begun engaging in un- Trump’s Incitement of Insurrection minence’’ standard set out in Brandenburg. lawful or violent acts—Mr. Trump would President’s Counsel argued at trial that In the Supreme Court case of Hess v. Indi- quickly and clearly condemn these actions Mr. Trump was exercising his First Amend- ana, Gregory Hess was attending an anti- and take every action possible to stop fur- ment rights in expressing his views at the Vietnam war protest when the police moved ther violence. Arguably, once the ‘‘Save America’’ rally, and thus cannot be a group of protesters from the street onto lawbreaking began, it was only Mr. Trump convicted in this proceeding. I conclude that the sidewalk.157 Hess said, ‘‘We’ll take the that had the most potent power at that point there is overwhelmingly clear and con- [effing] street later’’ and was convicted for to get his supporters to stop. However, in- vincing evidence that the First Amendment disorderly conduct.158 The Supreme Court re- stead of acting expeditiously, it took him does not inoculate him from the current Im- versed Hess’ conviction, concluding, ‘‘Since more than two hours after the rioters peachment charge. the uncontroverted evidence showed that stormed the Capitol to make a statement. In Hess’ statement was not directed to any per- a. The First Amendment Is Not a Bar to Im- this time, it is reported that lawmakers and son or group of persons, it cannot be said peachment Trump advisors pleaded with him to call off that he was advocating, in the normal sense, the angry mob and denounce the violence.141 As I explained in Section II, the relevant any action. And since there was no evidence, Mr. Trump was seemingly unmoved by these standard in an Impeachment trial is whether or rational inference from the import of the pleas for help, and it is even reported that he a president committed impeachable ‘‘high language, that his words were intended to was pleased by the actions of his sup- Crimes and Misdemeanors.’’ An impeachable produce, and likely to produce, imminent porters.142 Rather than call off his sup- offense need not violate a criminal or other disorder, those words could not be punished porters, it is reported that Mr. Trump called established law. Indeed, even an action that by the State on the ground that they had ‘a a Member of the Senate asking him to raise is lawful or otherwise protected by the Con- tendency to lead to violence.’ ’’ 159 additional objections to certifying the Elec- stitution can still be an impeachable offense. The Supreme Court subsequently explained toral College results.143 Not until 4:15pm did Rather the appropriate standard in this pro- that a finding of ‘‘imminence’’ also hinged Mr. Trump release a pre-recorded message, ceeding is whether an offense is ‘‘incompat- upon the context and timing connecting telling supporters to go home. The video ible with either the constitutional form and speech and subsequent acts of lawbreaking. statement did not condemn the rioters’ ac- principles of our government or the proper In NAACP v. Claiborne Hardware Company, tions at the Capitol. performance of constitutional duties of the a local branch of the National Association Mr. Trump’s delay in responding to the in- presidential office.’’ 150 In addition, as I ex- for the Advancement of Colored People surrection is unsurprising, for many of the plained in Section IV, there is no defined (NAACP) organized a boycott of white-owned rioters thought they were ‘‘answer[ing] the standard of proof in an Impeachment, and stores in Mississippi.160 The boycott was call of my President.’’ 144 In a livestreamed there are no requirements to adhere to the largely supported by impassioned speeches video from inside the Capitol, one rioter de- same standards as in a criminal prosecution. encouraging nonviolent picketing—including clared that ‘‘[o]ur president wants us here. As a result, in an Impeachment trial, the by boycott organizer Charles Evers—but . . . We wait and take orders from our presi- Senate is simply not bound by a determina- some acts and threats of violence did dent.’’ 145 Another rioter claimed that she tion of whether Mr. Trump is protected by occur.161 The Court concluded, ‘‘There are ‘‘thought I was following my President. He the First Amendment, nor must the Senate three separate theories that might justify asked us to fly there, he asked us to be there, demand a showing that every element of a holding Evers liable . . . First, a finding that so I was doing what he asked us to do.’’ 146 criminal charge of incitement has been met. he authorized, directed, or ratified specific One supporter, who was later arrested for his b. Mr. Trump’s Speech Likely Satisfies the tortious activity would justify holding him actions on January 6th, stated through his Standard of Incitement responsible for the consequences of that ac- lawyer that he, ‘‘acted out of the delusional Although I have concluded that the First tivity. Second, a finding that his public belief that he was a ‘patriot’ protecting his Amendment does not necessarily serve as a speeches were likely to incite lawless action country . . . He was responding to the en- shield in this proceeding, I find it persuasive could justify holding him liable for unlawful treaties of the-then commander in chief, that the bedrock principle of free speech has conduct that in fact followed within a rea- President Trump.... The President main- a long history in our country. Therefore, I sonable period. Third, the speeches might be tained that the election had been stolen and undertook an examination of the governing taken as evidence that Evers gave other spe- it was the duty of loyal citizens to ‘stop the case precedent regarding incitement. I have cific instructions to carry out violent acts or steal.’ ’’ 147 To paraphrase the House Man- concluded that, even if the First Amendment threats.’’ 162 In the specific case of Evers’ agers, Mr. Trump sold his followers the big were to apply in this case, Mr. Trump’s over- speech, the Court concluded ‘‘In the course lie of a stolen election and then provoked all course of conduct would satisfy the of [Evers’] pleas, strong language was used. those followers to violent action to ‘‘stop the standard for incitement. If that language had been followed by acts of steal.’’ The First Amendment prohibits any law violence, a substantial question would be In his late statement on the events at the ‘‘abridging the freedom of speech.’’ 151 How- presented whether Evers could be held liable Capitol, Trump urged his followers to ever, even at our country’s founding, it is for the consequences of that unlawful con- ‘‘Please support our Capitol Police and law clear that the First Amendment was not in- duct. In this case, however the acts of vio- enforcement stay peaceful.’’ Of course, the tended to provide absolute protection for lence identified in 1966 occurred weeks or insurrection was never peaceful, and the every utterance. Of the fourteen states that months after [his] April 1, 1966, speech.’’ 163

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.034 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S932 CONGRESSIONAL RECORD — SENATE March 1, 2021 There is overwhelmingly clear and con- ees are not speaking as citizens for First the election results before the election had vincing evidence that Mr. Trump’s overall Amendment purposes, and the Constitution even gotten underway, and then filed dozens course of conduct meets the spirit of the does not insulate their communications from of lawsuits alleging widespread voter Brandenburg test. As laid out in the Clai- employer discipline.166 fraud.174 In addition, as I will outline, he borne case, a finding of ‘‘imminence’’ should In Mr. Trump’s case, it would be difficult wielded his overwhelming power as president take into account the context and timing of to argue that he gave a political speech at to cajole and intimidate members of federal, Mr. Trump’s January 6th rally speech. After the ‘‘Save America’’ rally outside the course state, and local government to start inves- months of fueling the narrative that the of performing his official duties. The purpose tigations, file lawsuits, and reject electoral election was stolen from him, Mr. Trump of the speech was to use his role as president votes in a bid to overturn the 2020 election. asked his supporters to assemble on the day to urge his supporters to stop the certifi- A. Mr. Trump Attempted to Use Federal Law that Congress would be certifying the elec- cation of Biden’s electoral win. In addition, Enforcement Agencies to Carry Out Inves- tion results. Once Mr. Trump had gathered there is evidence that members of the crowd tigations and File Lawsuits his supporters—knowing that they would lis- had taken Mr. Trump’s invocations to attend ten—he directed the crowd to ‘‘walk down the rally, and his insisting that they head to After losing the 2020 election, Mr. Trump Pennsylvania Avenue,’’ ‘‘fight like hell,’’ and the Capitol, as instructions coming from the pushed the Justice Department to inves- ‘‘stop the steal.’’ Unlike the speech in Clai- president.167 tigate his meritless allegations of election 175 borne, which was far removed in time, the Moreover, as Manager Raskin explained, a irregularities. He also pushed the Justice lawlessness was imminent because it hap- president takes an oath to uphold the laws, Department to ask the Supreme Court to in- pened a short distance and short time after the Constitution, and the principles of our validate Mr. Biden’s victory, which his ap- Mr. Trump’s speech. Unlike the indefinite republic.168 In exchange, the president is pointees refused to do, citing the lack of evi- 176 speech in Hess, Mr. Trump’s speech was di- given tremendous power and prestige—more dence. Mr. Trump even disparaged his own rected at a specific group of persons, and so than any other person in the country. FBI and DOJ, implying that they were work- subsequent acts of violence are directly That is why, in an instant, a president’s ing against him. In an interview, Mr. Trump traceable to people who had listened to Mr. words can calm, agitate, or otherwise change said, ‘‘This is total fraud. And how the F.B.I. Trump’s calls to action. the landscape on issues ranging from foreign and Department of Justice—I don’t know, On the issue of Mr. Trump’s intent, wheth- affairs, to the economy, to the rule of law. maybe they’re involved—but how people are er or not Mr. Trump specifically intended Not only can the president’s words have an allowed to get away with this stuff is unbe- every act of violence, he set these events in expansive ripple effect, they are more likely lievable. This election was a total fraud . . . motion. If Mr. Trump truly did not intend to succeed in inciting action from the public. Missing in action . . . Can’t tell you where 177 for lawbreaking, what did he expect his sup- These potent powers can be wielded by the they are.’’ porters would do once they reached the Cap- president for the good of the country, or can Succumbing to this pressure, Attorney itol? How did he expect his supporters to be exploited to subject it to the gravest General William Barr issued a memorandum lawfully achieve the aim of preventing elec- abuses. That is why—for the protection of to U.S. attorneys across the country allow- tors from being counted? From this evidence, our laws and democratic institutions—a ing them to pursue any ‘‘substantial allega- we can infer that Mr. Trump understood president’s primary obligation is to uphold tions’’ of voting irregularities before the 2020 there was a high likelihood that his sup- their oath of office, and any freedom of ex- presidential election was certified.178 The porters would break the law once they got to pression must yield to that higher duty. memorandum gave prosecutors the ability to the Capitol. In this case, Mr. Trump did not have a sidestep longstanding Justice Department Further revealing his state of mind, Mr. First Amendment right to fuel a mass policy of not taking overt steps on possible Trump did not publicly disapprove of the in- disinformation campaign, foreseeably fan election fraud before results are certified. In surrection as it was happening, or take con- the flames of political division, and then di- response, career DOJ prosecutors called on crete steps to clear the mob. The first public rect a mob to disrupt a congressional pro- Mr. Barr to rescind the memo, because it was statement he made, once the mob had ceeding. not based on fact and there was no evidence 179 breached the Capitol, was to disparage Vice VII. OBSTRUCTION OF ELECTORAL COLLEGE of widespread voter fraud. President Pence for failing to block the cer- In inciting the insurrection on January 6th After Mr. Barr stepped down as Attorney tification. Instead of acting expeditiously, it and attempting to overturn the 2020 election, General, Mr. Trump then reportedly pres- took him nearly two hours to acknowledge Mr. Trump attempted to destroy our demo- sured Barr’s successor, Acting Attorney Gen- the attack. In his three statements that day, cratic system and negate the will of the eral Jeffrey Rosen, to file legal briefs seek- 180 he repeated false claims that the election American people. ing to overturn his election loss. He want- was stolen and sympathized with his fol- The Electoral College process is laid out in ed Mr. Rosen to appoint special counsels, in- lowers. There are reports that he even called the Twelfth Amendment of the Constitution, cluding a counsel who would look into Do- a sitting Senator to ask him to object to ad- which states: minion Voting Systems—which is at the cen- ter of a right-wing conspiracy theory accus- ditional states, as the insurrection was tak- ‘‘The Electors shall meet in their respec- ing the company of conspiring with the Ven- ing place. In addition, there is no evidence tive states and vote by ballot for President ezuelan government to tip the election to- that Mr. Trump tried to activate the Na- and Vice-President, one of whom, at least ward Mr. Biden. Mr. Rosen refused the presi- tional Guard, and even rebuffed requests to . . . they shall make distinct lists of all per- dent’s entreaties. Mr. Trump then plotted do so. The question becomes how did Mr. sons voted for as President, and of all per- with Jeffrey Clark, a Trump loyalist and the Trump expect these actions—criticizing the sons voted for as Vice-President, and of the head of the DOJ’s civil division, to oust Mr. Vice President, urging additional electoral number of votes for each, which lists they Rosen as acting attorney general, and re- objections, and praising his supporters—to shall sign and certify, and transmit sealed to place him with Mr. Clark, who was willing to calm down tensions? How did he foresee that the seat of the government of the United do Mr. Trump’s bidding in trying to overturn the overwhelmed Capitol police would be States, directed to the President of the Sen- the Georgia election results. This plan was able to push back the mob without addi- ate;—the President of the Senate shall, in only unsuccessful because Mr. Trump’s advi- tional law enforcement assistance? From the presence of the Senate and House of Rep- sors convinced him the move could poten- this evidence, we can infer that Mr. Trump resentatives, open all the certificates and tially lead to mass resignations within DOJ’s was satisfied, or at least was not displeased, the votes shall then be counted[.]’’ that his actions had inflamed his supporters leadership and lead to congressional inves- Just as the Electoral College has been car- to violently disrupt the electoral certifi- tigations.181 ried out and affirmed since the first presi- cation. dential election of President George Wash- B. Mr. Trump Exerted Inappropriate Pressure c. Mr. Trump’s Speech Was Held to a Higher ington,169 the 2020 election took place accord- on State Elected Officials Standard as a Public Official ing to the requirements of the Constitution. Article II, Section 1, Clause 2 provides that It is further important to note that Mr. Voters in each respective state and territory each state shall appoint electors ‘‘in such Trump was not making statements in his ca- chose their electors to serve in the Electoral Manner as the Legislature thereof may di- pacity as a private citizen but as president of College,170 with Mr. Biden winning a major- rect.’’ 182 However, the decisions on how and the United States. In the Supreme Court ity of 306 electoral votes.171 On December 14, when to choose electors is left up to the case, Garcetti v. Ceballos, the Court held 2020, the appointed electors convened state- states. The Electoral Count Act only re- that ‘‘when a citizen enters government by-state to cast their ballots for the Presi- quires that states be required to certify their service, the citizen by necessity must accept dent and Vice President of the United elections at least six days before the electors certain limitations on his or her free- States, and certified the results.172 On Janu- meet to vote.183 After his loss on Election dom.’’ 164 In this case, the respondent was ary 6th to 7th of 2020, Congress counted the Day, Mr. Trump sought to exploit the ambig- disciplined for a memorandum he wrote as certified votes, and declared Mr. Biden and uous language of the Electoral Count Act part of his employment in a district attor- Kamala Harris the winners. 173 that gives states discretion in choosing elec- ney’s office, and asserted that his super- Throughout the Electoral College process, tors. Most state laws require the appoint- visors violated his First Amendment Mr. Trump attempted to interfere and nul- ment of electors who vote according to the rights.165 The Court concluded ‘‘We hold that lify the outcome. For example, as discussed outcome of the popular vote in each state.184 when public employees make statements in Section VII, Mr. Trump was at the head of However, Mr. Trump sought to use the pursuant to their official duties, the employ- a mass disinformation campaign to discredit weight of his office to persuade and, in some

VerDate Sep 11 2014 07:22 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.035 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S933 cases, intimidate state officials. For exam- state official had to publicly debunk the been declared the presumptive winner, Re- ple, he invited GOP members of the Michi- claims one-by-one to restore public trust in publicans were faced with a choice. Manager gan state legislature to the White House, in the integrity of their election.196 Lieu explained that Mr. Trump targeted a brazen bid to get them to throw out the C. Mr. Trump Lobbied Vice President Pence to Members of Congress on social media mak- state’s election results.185 He also called two Reject Electoral Votes ing it clear he saw their siding with him as members of the Wayne County Board of Can- Vice President Pence presided over the a loyalty test. Mr. Trump reminded Repub- vassers, including its Republican chair- January 6th certification of electoral votes. licans that he, in his view, had gotten them woman, who had already voted to certify This role is spelled out by Article II, Section elected and he expected their gratitude.210 186 that Joe Biden won their county. Within 24 1 of the Constitution, which dictates that Under these threats of retribution, Mr. hours of the call, the Republican chair- ‘‘The President of the Senate shall, in the Trump was successful in getting Republicans woman announced that she wanted to ‘‘re- presence of the Senate and House of Rep- to line up with him—in either refusing to ac- 187 scind’’ her vote. Her reasoning mirrored resentatives, open all the certificates and knowledge that Mr. Biden had won or worse, Mr. Trump’s claims that the election may the votes shall then be counted.’’ 197 In con- enabling his baseless claims of a rigged elec- have been rife with fraud. In another in- ducting this duty, the Vice President has no tion.211 stance, he called the speaker of the Pennsyl- more power than to determine whether the In early December, Mr. Trump also identi- vania House of Representatives, Bryan Cut- certificates submitted by each state are au- fied an ally in the House of Representatives ler, and inquired about the electoral process. thentic and then to count the votes.198 who was circulating a Dear Colleague letter According to Cutler’s spokesperson, Mr. In the days leading up to and on January asking Republican members to sign onto an Trump blatantly asked, ‘‘I’m hearing about 6th, Mr. Trump denied the constitutional re- amicus brief supporting a lawsuit filed by all these issues in Philadelphia, and these ality of the Vice President’s role and made it the Texas Republican Attorney General in issues with your law What can we do to fix clear that he wanted Vice President Pence to the Supreme Court to void the election re- 188 it?’’ block electoral votes for Mr. Biden. At his sults of other states.212 Mr. Trump began to Mr. Trump’s effort hit its crescendo when behest, a group of Republican lawmakers personally lobby House Republicans asking the Trump campaign convinced supporters in filed a lawsuit against Vice President Pence. them to sign the amicus brief.213 In the end, several states to create an alternate slate of The lawsuit alleged that the Twelfth Amend- one hundred and twenty six Republican electors to send for the congressional certifi- ment gave the Vice President, and not members of Congress signed on, including cation.189 The Trump campaign helped orga- states, unilateral power to determine which the House Minority Leader.214 The U.S. Su- nize alternate Electoral College meetings in among competing slates of electors may be preme Court rejected the lawsuit saying the Wisconsin, Arizona, Pennsylvania, Georgia, 199 counted. Mr. Trump’s own Justice Depart- state of Texas lacked standing to pursue the New Mexico, and Nevada.190 However, elec- ment stepped in to defend Mr. Pence, and a case.215 tion law experts dismissed the validity of federal judge tossed out the lawsuit after As an extension of Mr. Trump’ pressure these false electors, which had ‘‘neither been finding that the Republican lawmakers campaign, Republican Members of Congress certified by state executives nor purportedly 200 lacked standing to sue in this case. began to similarly view the certification of appointed by state legislators.’’ 191 Still, Mr. Trump unabashedly and repeat- the Electoral College as a loyalty test to Mr. Mr. Trump also took extra effort to influ- edly tried to coerce Vice President Pence Trump. A few days before January 6th, elev- ence the outcome of the Georgia election, a into unilaterally rejecting the election re- fierce battleground state. In early December, sults. On January 2nd, he falsely proclaimed en current and then-incoming Republican he called Governor Brian Kemp and asked over Twitter that, ‘‘The Vice President has senators announced that they would vote to him to hold a special session of the Georgia the power to reject fraudulently chosen elec- reject the Electoral College votes of some legislature to appoint Trump electors to re- tors.’’ 201 Two days later, Mr. Trump said at states as not ‘‘lawfully certified,’’ unless verse Mr. Biden’s win. Mr. Trump also want- a rally in Georgia that, ‘‘I hope Mike Pence Congress appointed a commission to conduct ed Kemp to order an audit of absentee ballot comes through for us, I have to tell you . . . an emergency, ten day audit of the election signatures. When Kemp told the former Of course, if he doesn’t come through, I results.216 One hundred and forty Republican president he would not be complying with ei- won’t like him as much.’’ 202 Trump report- Members of the House planned a similar ef- ther demand, Mr. Trump told a crowd of sup- edly met with and called Pence multiple fort.217 Together, the Senate and House porters at a Georgia rally that, ‘‘Your gov- times—plying him to object to Biden’s vic- Members planned to object to the counting ernor could stop it very easily if he knew tory, including at least one time with of electors from Arizona, Georgia, Michigan, what the hell he was doing . . . So far we threatening language.203 Trump reportedly Nevada, Pennsylvania, and Wisconsin.218 haven’t been able to find the people in Geor- solicited others in his orbit to put pressure The question is not whether these Mem- gia willing to do the right thing.’’ 192 on the Vice President, including Rudy bers had the legal right to object to electors In the most extraordinary example of his Giuliani and trade adviser Peter Navarro.204 but whether there were facts to support the inappropriate interactions with state law- Despite the enormous pressure, Mr. Pence objections. At that point, the results of the makers, Mr. Trump outright tried to coerce told Mr. Trump that he planned to certify election and lack of substantive voting irreg- Georgia Secretary of State Brad the election results for Mr. Biden.205 ularities was affirmed by dozens of judges, Raffensperger, ‘‘to find’’ 11,780 votes—which In response, Mr. Trump tweeted on the the U.S. Supreme Court, governors, and elec- would amount to the one vote margin he morning of January 6th that, ‘‘All Mike Pence tion officials.219 In addition, Department of needed to win the state.193 Mr. Trump spent has to do is send [the votes] back to the States, Homeland Security officials put out a state- roughly an hour haranguing Raffensperger AND WE WIN. Do it Mike, this is a time for ex- ment that said, ‘‘The November 3rd election and Ryan Germany, the Georgia secretary of treme courage!’’ 206 He also tweeted ‘‘If Vice was the most secure in American history.’’220 state’s general counsel, about doing another President @Mike—Pence comes through for Attorney General Barr put out a similar vote count and insisting on baseless con- us, we will win the Presidency. Many States statement that said, ‘‘[We] have not seen spiracy theories. Even when presented with want to decertify the mistake they made in fraud on a scale that could have effected a facts to the contrary by Raffensperger and certifying incorrect & even fraudulent num- different outcome in the election.’’221 In the Germany, who are both Republicans, Mr. bers in a process NOT approved by their face of all this evidence, the subsequent ob- Trump did not relent. State Legislatures (which it must be). Mike jections could be seen as little more than a 207 Mr. Trump also made veiled threats of how can send it back!’’ In his remarks at the ploy to lend specious legitimacy to Mr. his supporters would punish Republicans if ‘‘Save America’’ rally itself, Mr. Trump said, Trump’s allegations of voter fraud and avoid the Georgia election officials did not go ‘‘I hope Mike is going to do the right thing. provoking Mr. Trump’s ire. along with what he was asking. Specifically, I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. E. Mr. Trump Sought to Block the Peaceful he told Raffensperger, who will be up for re- Transfer of Power election in 2022, ‘‘[T]hey hate the state, they . . . And I actually—I just spoke to Mike. I hate the governor, and they hate the sec- said: ’Mike, that doesn’t take courage. What Mr. Trump’s overall course of conduct em- retary of state. I will tell you that right now. takes courage is to do nothing. That takes bodied the exact kind of behavior that the And the only people that like you are people courage.’ ’’ 208 Framers built constitutional protections to that will never vote for you. You know that, Once the electoral vote count had begun, it thwart. The Framers knew that an executive Brad, right?’’ 194 was clear that Vice President Pence was not who amassed too much power might rep- Mr. Trump even suggested that going to comply with his demands. Mr. licate the abuses of a monarchy. At the Con- Raffensperger and Germany would face Trump attacked him on Twitter writing, stitutional Convention, James Madison ex- criminal consequences if they refused to in- ‘‘Mike Pence didn’t have the courage to do plained the risks of appointing an execu- tervene, saying ‘‘[T]he ballots are corrupt. what should have been done to protect our tive—saying ‘‘loss of capacity or corruption And you’re going to find that they are— Country and our Constitution, giving States a was more within the compass of probable which is totally illegal, it is more illegal for chance to certify a corrected set of facts, not the events, and either of them might be fatal to you than it is for them because, you know fraudulent or inaccurate ones which they were the Republic.’’222 An exchange between two what they did and you’re not reporting it. asked to previously certify. USA demands the delegates, William Richardson Davie and 209 That’s a criminal—that’s a criminal offense. truth!’’ James Wilson, highlights the importance of And you can’t let that happen. That’s a big D. Mr. Trump Encouraged Members of Congress safeguarding against a corrupt president risk to you and to Ryan, your lawyer. ’’ 195 to Deny and Overturn the Election Results that would cheat to get reelected. Davie In the end, Mr. Trump made so many false Once it was clear that Mr. Trump had no stated, ‘‘‘[i]f he be not impeachable whilst in claims about the Georgia election, a top plans of conceding, even after Mr. Biden had office, he will spare no efforts or means

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.036 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S934 CONGRESSIONAL RECORD — SENATE March 1, 2021 whatever to get himself reelected.’ [Davie] grounds. It was all unfolding on television, fice and refused to defend the Constitution considered this as an essential security for leaving little doubt that Mr. Trump saw it itself. Therefore, an Impeachment is the the good behaviour of the Executive.’’223 Wil- happening in real time. most appropriate forum to protect the integ- son concurred with Davie ‘‘in the necessity Manager Castro emphasized that Mr. rity of the presidency and the constitutional of making the Executive impeachable while Trump could have simply told the rioters to order. in office.’’224 stop and leave the Capitol.232 As I explained President’s Counsel also contend that Im- Without mechanisms to keep an out-of- in Section VII, Mr. Trump did not acknowl- peachment is unnecessary in this case be- control president in check, there was little edge the attack for nearly two hours, while cause the 2020 election was the remedy for binding him to the law. This, in part, Republican lawmakers and the people closest his conduct. Of course, when Mr. Trump in- prompted the Framers to design the system to him implored him to call off the attack. cited a mob to violent action at the U.S. of checks and balances and Congress’s Im- Instead, he tweeted out criticism of Vice Capitol, it was an attempt to delay the cer- peachment power. Another intentional hall- President Pence. When he finally acknowl- tification of the election results. This fol- mark of our democracy is the peaceful trans- edged the attack, he did not denounce the lowed months of Mr. Trump’s public refusal fer of power, which is especially important mob or rioters, but asked them to ‘‘stay to concede the election on the grounds that when an incumbent loses re-election.225 This peaceful,’’ even though it was clear that they it was stolen from him. Clearly, the election assures that an executive acquires and main- had undertaken an unlawful siege at the process is insufficient in this case because tains power only through lawful means. It Capitol. At this time, Mr. Trump still did Mr. Trump does not recognize the validity of also ensures that power is given to a presi- not ask the rioters to stop. Three and half any election outcome that does not favor dent, and taken back, according to the will hours in, he released a video reaffirming the him. of people. It began when President John same voter fraud lies, and told his sup- Failing to convict the former president Adams—defeated by his bitter political rival porters, ‘‘We love you. You’re very special.’’ would result in several constitutional perils. Thomas Jefferson—quietly left the White While Mr. Trump did tell the rioters to go First, Mr. Trump may once again run for House on the morning of the new president’s home this time, he still refused to disavow president. If re-elected, there is no reason to inauguration.226 Since then, no president has the ongoing attack or the attackers them- believe that he would feel constrained by any ever refused to accept an election result or selves. limitations. An acquittal essentially would defied the lawful processes for resolving elec- In addition to inciting the insurrection, provide him permission to commit the same toral disputes, until Mr. Trump. Mr. Trump abandoned his duties to defend abuses or worse, without fear of account- Mr. Trump, unable to accept the will of the the American people, even after the events of ability. That includes leveraging all the pow- people, categorically rejected the decision of the day turned deadly. Manager Castro noted ers of the presidency to stay in power or Americans as expressed in the 2020 election. that he did not deploy the National Guard, wage an assault on a coequal branch of gov- Even more than refusing, he repeatedly nor any other law enforcement.233 He was so ernment. Presidents must be held account- sought to undermine processes at the fed- disengaged from discussions with the Pen- able when their lust for power does violence eral, state, and local level that would ad- tagon about deploying the National Guard to bedrock principles. Disqualification from vance a peaceful transfer of power. As the that Vice President Pence had to intervene public office is the only remedy left to pre- House Managers noted, Mr. Trump tried to to help move the request forward.234 vent such behavior from Mr. Trump in the obstruct the election process through non- Taken together, Mr. Trump’s conduct was future. violent means.227 When these attempts an astonishing and willful dereliction of A failure to convict would also be a lesson failed, he directed a mob to help him wrest duty. He had sworn an oath to ‘‘faithfully to future presidents with authoritarian ten- power by launching an attack on the legisla- execute the office of President of the United dencies that they can attack our democratic tive branch. States and preserve, protect and defend the principles and institutions without con- IX. VIOLATION OF SEPARATION OF POWERS Constitution of the United States.’’235 Yet on sequence. Even beyond a ‘‘January Excep- One of the key principles rooted in our that day, he commanded his supporters to tion,’’ a future president might reason that democratic system is the separation of pow- inflict grave harm to the constitutional otherwise impeachable conduct will not be ers between the co-equal branches of govern- order, by telling them to disrupt the elec- challenged during any part of their presi- ment. This is apparent from the way the toral certification and the peaceful transfer dency. In addition to rank abuse of power, a Framers devised a system of federal govern- of power. He sat back and watched as his future president may not submit to the ment that diffuses and divides its core func- supporters took part in an attack on the gov- peaceful transfer of power and the sacred tions across the legislative, executive, and ernment institutions that he swore to de- will of the people. In terms of the legislative judicial branches. fend. Then, he entirely failed to stop or con- branch, Congress would send a message that The doctrine is rooted in a political philos- demn the widespread lawbreaking that his it is unwilling to use its own oversight pow- ophy that aims to keep the government, as a supporters took part in. As such, I find that ers functionally and effectively, and is un- whole and each branch, both limited and em- there is overwhelmingly clear and con- willing to uphold a meaningful separation of powered, so that the government can func- vincing evidence that Mr. Trump violated powers. Disqualification is the necessary tion effectively, while the branches can pre- his oath of office. method for protecting the republic from such vent one another from acting arbitrarily or XI. CONCLUSION: CONVICTION AND DISQUALIFICA- democratic decay within the executive and recklessly. As James Madison explained in TION OF MR. TRUMP IS AN APPROPRIATE REM- legislative branches. Federalist Paper Number 47, ‘‘The accumula- EDY This chapter in history reminds us that de- tion of all powers, legislative, executive, and Conviction and disqualification of a presi- mocracy is fragile and we must diligently judiciary, in the same hands, whether of one, dent from office requires a high standard and safeguard its principles. To this end, I have a few, or many, and whether hereditary, should only be arrived at when there are no a responsibility to defend the truth, the rule selfappointed, or elective, may justly be pro- other remedies available. of law, and our democratic institutions. I am nounced the very definition of tyranny.’’228 First, I would refute several assertions by compelled to vote to convict President Don- Therefore, when any one branch of govern- President’s Counsel that the Impeachment ald J. Trump of committing ‘‘high Crimes ment seeks to obstruct an essential function proceeding, and the remedies thereof, are not and Misdemeanors’’ and support his disquali- of another branch, it threatens the separa- the appropriate way to hold Mr. Trump ac- fication from ever again holding an office of tion of powers.229 In a case where a president countable for his actions. President’s Coun- public trust. seeks to derogate the authority of another sel and the Senate Minority Leader argue ENDNOTES branch, it can also undermine the president’s that the more proper forum is a criminal 1. Impeaching Donald John Trump, Presi- constitutional obligation to ‘‘take Care that proceeding because of the criminal implica- dent of the United States, for high crimes 230 the Laws be faithfully executed.’’ tions of his offenses. Taken to its logical ex- and misdemeanors, H.R. Res. 24, 117th Cong. In inciting the armed assault on the Cap- treme, their views would absurdly mean that (2021). itol on January 6th, Mr. Trump knowingly if a president’s malfeasance could be pros- 2. U.S. Const. art. I, § 3, cl. 6. and recklessly threatened a constitutional ecuted, the president should be protected 3. U.S. Const. art. II, § 4. proceeding of the Congress. In all this, Mr. from the Impeachment process. 4. U.S. Const. art III, § 3, cl. 1. Trump gravely endangered the security of In addition, Manager Raskin correctly dif- 5. Staff of H. Comm. on the Judiciary, the United States and its institutions, and ferentiated the purpose and independence of 116th Cong., Rep. on Constitutional Grounds imperiled a coequal branch of government. the Impeachment process from the prosecu- for Presidential Impeachment 14 (Comm. X. VIOLATION OF OATH OF OFFICE tion of crimes. As Manager Raskin stated, Print 2019). Manager Castro outlined the numerous ‘‘[Impeachment] was created to prevent and 6. 2 Sir William Blackstone, Commentaries ways that Mr. Trump abandoned his post as deter elected officials who swear an oath to on the Laws of England 2152 (William Carey the insurrection began, and even hours after represent America but then commit dan- Jones ed., 1976). it was underway.231 Capitol Police were over- gerous offenses against our republic.’’236 An 7. Id. at 2153. whelmed and violently assaulted by the Impeachment, unlike a criminal case, is not 8. Charles Doyle, Cong. Research Serv., 98– armed mob. Members of Congress and con- meant to punish the defendant, but to guard 882, Impeachment Grounds: A Collection of gressional staff feared for their lives, many the country and the Constitution from an Selected Materials 4 (1998). of them hiding or barricaded in offices, as unfit executive. As I have explained, by his 9. The Federalist Paper No. 65, at 439 the mob wreaked mayhem on the Capitol conduct, Mr. Trump violated his oath of of- (James Madison) (Jacob E. Cooke ed., 1961)

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.037 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S935 10. 2 The Records of the Federal Conven- ico (January 21, 2021), at 2, https:// win still stands, Politico (Nov. 20, 2020) tion of 1787 550 (Max Farrand ed., 1911). www.politico.com/f/?id=00000177-2646-de27- https://www.politico.com/news/2020/11/20/ 11. Ibid. a5f7-3fe714ac0000. michigan-gop-dc-trump-election-438690. 12. 4 The Debates in the Several State Con- 44. Id. at 1–92. 72. Staff Reports, READ THE FULL STATE- ventions on the Adoption of the Federal Con- 45. The Federalist No. 65, supra note 9, at MENT: Trump Responds to Biden Being Pro- stitution 113 (Jonathon Elliot ed., 2nd ed. 456. jected as Winner, NBC Boston (Nov. 7, 2020), 1861). 46. Senate Historical Office, ‘‘The First Im- https://www.nbcboston.com/news/local/read- 13. Michael J. Gerhardt, The Federal Im- peachment’’, United States Senate, https:// the-full-statement-president-trump- peachment Process: A Constitutional and www.senate.gov/artandhistory/history/ responds-to-biden-being-projected-as-winner/ Historical Analysis 21 (3rd ed. The Univer- minute/The-First-Impeachment.htm. 2225599/. sity of Chicago Press 2019) (1996). 47. Ibid. 73. Aamer Madhani & Kevin Freking, In 14. 2 Joseph Story, Commentaries on the 48. Kalt & Bowman, supra note 38. video, Trump spreads baseless claims about Constitutions 799 at 269–70 quoting William 49. Ibid. voter fraud, PBS News (Dec. 2, 2020), https:// Rawle, A View of the Constitution of the 50. Raskin et al, supra note 35, at 73–74. www.pbs.org/newshour/politics/in-video- United States at 213 (2d ed. 1829). 51. Raskin et al, supra note 35, at 74. trump-spreads-baseless-claims-about-voter- 52. Kalt & Bowman, supra note 38. 15. Staff of H. Comm. on the Judiciary, fraud. 53. Michael J. Gerhardt, The Federal Im- 93rd Cong., Rep. on Constitutional Grounds 74. Philip Rucker, Trump escalates baseless peachment Process: A Constitutional and for Presidential Impeachment 27 (Comm. attacks on election with 46–minute video rant, Historical Analyses 80, (Henry Barton Daw- Print 1974). Wash. Post (Dec. 2, 2020), https:// son ed., U. of Chicago Press, 2000). 16. 2 The Records of the Federal Conven- www.washingtonpost.com/politics/trump- 54. U.S. Const. art. I, § 3, cl. 6. tion of 1787, supra note 10, at 64–65. election-video/2020/12/02/f6c8d63c-34e8-11eb- 17. Id. at 550 55. The Federalist No. 65, supra note 9, at 441. a997-1f4c53d2a747—story.html. 18. Ibid. 75. Aamer Madhani & Kevin Freking, In 19. Ibid. 56. Siobhan Hughes, McConnell Won’t Con- vene Senate Early to Accept Impeachment Arti- video, Trump spreads baseless claims about 20. Ibid. voter fraud, PBS News (Dec. 2, 2020), https:// 21. Id. at 551. cle, Wall St. J. (Jan. 13, 2021), https:// www.pbs.org/newshour/politics/in-video- 22. Id. at 600. www.wsj.com/livecoverage/trump-impeach- trump-spreads-baseless-claims-about-voter- 23. U.S. Const. art. I, § 3, cl. 7. ment-house-biden/card/ 24. 1 The Collected Works of James Wilson lQqlkwh7BOCRLaSGrkig. fraud. 76. James Crowley, Trump Attacks FBI, 736 (Kermit L. Hall and Mark David Hall 57. 167 Cong. Rec. S662 (daily ed. Feb. 11, DOJ, Supreme Court and GOP Senators in Twit- eds., 2007). 2021) (statement of Mr. Manager Lieu), 25. Memorandum from William Barr, At- https://www.congress.gov/117/crec/2021/02/11/ ter Tirade, Newsweek (Dec. 26, 2020), https:// torney General, Department of Justice, to CREC-2021-02-11-pt1-PgS645-2.pdf. www.newsweek.com/trump-attacks-doj-fbi- Rod Rosenstein, Deputy Attorney General, 58. Kavin Collier, Selfies, social media posts supreme-court-gop-senators-mitch-mccon- Department of Justice, and Steve Engel, As- making it easier for FBI to track down Capitol nell-twitter–1557376. 77. Alana Wise, Despite Clear Defeat, Trump sistant Attorney General, Department of riot suspects, NBC (Jan. 16, 2021), https:// Vows To Fight On, Continues Disinformation In Justice 12 (June 8, 2018) (on file with the New www.nbcnews.com/tech/social-media/selfies- Georgia, NPR (Jan. 4, 2021), https:// York Times) (emphasis in original). social-media-posts-making-it-easier-fbi- 26. 2 The Records of the Federal Conven- track-down-n1254522 www.npr.org/2021/01/04/953436607/despite-clear- tion of 1787, supra note 10, at 65–66. 59. Bryce Klehm & Rohini Kurup, Compiling defeat-trump-vows-to-fight-on-continues- 27. Charles L. Black, Jr. & Philip Bobbit, the Criminal Charges Following the Capitol disinformation-in-georgia. Impeachment: A Handbook, New Edition 17 Riot, Lawfare (Jan. 6, 2021), https:// 78. Ariane de Vogue & Paul LeBlanc, Trump (2018). www.lawfareblog.com/compiling-criminal- asks Supreme Court to invalidate millions of 28. The Federalist No. 65, supra note 9, at charges-following-capitol-riot. votes in battleground states, CNN (Dec. 10, 441; Laurence Tribe & Joshua Matz, To End 60. Salvador Rizzo, Trump attorneys falsely 2020), https://www.cnn.com/2020/12/09/politics/ a Presidency: The Power of Impeachment 127 claim he was denied due process’, Wash. Post trump-supreme-court/index.html. (2018). (Feb. 13, 2021), https:// 79. William Cummings et al, By the num- 29. The Federalist No. 65, supra note 9, at www.washingtonpost.com/politics/2021/02/13/ bers: President Donald Trump’s failed efforts to 441. trump-attorneys-falsely-claim-he-was- overturn the election, USA Today (Jan. 6, 30. Id. at 442. denied-due-process/ 2021), https://www.usatoday.com/in-depth/ 31. Black & Bobbitt, supra note 27. 61. Jared P. Cole, Terrorist Databases and news/politics/elections/2021/01/06/trumps- 32. Ibid. (Black’s analysis is cited by sev- the No Fly List: Procedural Due Process and failed-efforts-overturn-election-numbers/ eral other scholars as persuasive; See e.g., Other Legal Issues, CRS (July 27, 2016), https:// 4130307001/. Laurence Tribe and Joshua Matz, To End a www.crs.gov/Reports/R43730? 80. Ibid. Presidency: The Power of Impeachment 137 source=search&guid=2a367adacc304370874da 81. It’s Official: The Election Was Secure, (2018). 997e155d437&index=0#_Toc530390992. Brennan Ctr. for Justice (Dec. 11, 2020), 33. Bruce L. Castor Jr. et al, Trump’s An- 62. Incitement, Black’s Law Dictionary (10th https://www.brennancenter.org/our-work/re- swer to Article of Impeachment, (Feb. 2, 2021) at ed. 2014). search-reports/its-official-election-was-se- 1, https://www.cnn.com/2021/02/02/politics/ 63. Ibid. cure. trump-response-impeachment-article/ 64. Nicholas Fandos et al, 144 Constitutional 82. GCC et al, Joint Statement from Elections index.html. Lawyers Call Trump’s First Amendment Defense Infrastructure Government Coordinating Coun- 34. Castor Jr. et al, supra note 33, at 1–2. ‘Legally Frivolous’, N.Y. Times (Feb. 5, 2021), cil & the Election Infrastructure Sector Coordi- 35. Jamie Raskin et al, Trial Memorandum https://www.nytimes.com/2021/02/05/us/ nating Executive Committees, CISA (Nov. 12, of the United States House of Representatives I. politics/trump-impeachment-defense.html 2020), https://www.cisa.gov/news/2020/11/12/ the Impeachment Trial of President Donald J. 65. U.S. Const. art. II, § 1, cl. 8. joint-statement-elections-infrastructure- Trump, House Judiciary Com. 48 (Feb. 2, 66. See 77 C.J.S. Riot § 36. government-coordinating-council-election. 2021), https://judiciary.house.gov/news/ 67. Eugene Kiely et al, The President’s 83. https://abcnews.go.com/Politics/trump- documentsingle.aspx?DocumentID=3515. Trumped-Up Claims of Voter Fraud, pressure-pence-reject-bidens-win-congress- 36. Jared P. Cole & Todd Garvey, FactCheck.org (Jul. 30, 2020), https:// wednesday/story?id=75057551. Impeachment and the Constitution, CRS (Nov. www.factcheck.org/2020/07/the-presidents- 84. Colby Itkowitz, ‘Liberate’: Trump tweets 20, 2019), https://crsreports.congress.gov/prod- trumped-up-claims-of-voter-fraud/. support of protests against stay-at-home orders, uct/pdf/R/R46013. 68. C-SPAN, President Trump Remarks in Wash. Post (Apr. 17, 2020), https:// 37. The Federalist No. 65, supra note 9, at Oshkosh, Wisconsin, (Aug. 17, 2020), https:// www.washingtonpost.com/politics/2020/04/17/ 397. www.c-span.org/video/?474841-1/president- liberate-trump-tweets-support-protesting- 38. Raskin et al, supra note 35, at 51. trump-give-acceptance-speech-white-house- against-stay-at-home-orders/. 39. Brian C. Kalt & Frank Bowman, Con- week 85. Rebecca Boone, Armed statehouse pro- gress Can Impeach Trump Now and Convict Him 69. Paul LeBlanc & Jason Hoffman, Trump tests set tone for US Capitol insurgents, Associ- When He’s Gone, Wash. Post (Jan 11, 2021), again casts doubt on whether he’ll accept elec- ated Press (Jan. 7, 2021), https://apnews.com/ https://www.washingtonpost.com/outlook/ tion result in latest unfounded attack on voting article/election–2020–coronavirus-pandemic- 2021/01/11/trump-impeachment-senate-trial/. process, CNN (Sept. 24, 2020), https:// oregon-elections-idaho– 40. Ibid. www.cnn.com/2020/09/24/politics/trump-2020- 688fc8894f44992487bb6ee45e9abd77. 41. Brian C. Kalt, ‘‘The Constitutional Case election-ballots/index.html. 86. John Flesher, 6 men indicted in alleged for the Impeachability of Former Federal Of- 70. Sanya Mansoor, ‘I Have to See.’ Mr. plot to kidnap Michigan governor, A.P. (Dec. ficials: An Analysis of the Law, History, and Trump Refuses to Say If He Will Accept the 2020 17, 2020), https://apnews.com/article/gretchen- Practice of Late Impeachment’’, 6 Texas Re- Election Results’, TIME (Jul. 19, 2020), https:// whitmer-michigan-indictments-coronavirus- view of Law and Politics 13, 26 (2001). time.com/5868739/trump-election-results- pandemic-traverse-city– 42. Kalt, supra note 40, at 29. chris-wallace/ 10f7e02c57004da9843f89650edd4510. 43. Mark Aaronson et al, Constitutional Law 71. Nick Niedzwiadek et al, After Trump 87. 13 On Your Side Staff, Mr. Trump re- Scholars on Impeaching Former Officers, Polit- meeting, Michigan GOP leaders say Biden’s sponds after failed Gov. Whitmer kidnap plot, 12

VerDate Sep 11 2014 06:35 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.038 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S936 CONGRESSIONAL RECORD — SENATE March 1, 2021 News (Oct 8, 2020), https:// (Feb. 10, 2021), https:// police-at-the-capitol/articleshow/ www.12newsnow.com/article/news/health/ www.washingtonpost.com/politics/2021/02/10/ 80225478.cms; Peter Hermann, ‘We Got to Hold coronavirus/president-trump-responds-after- when-did-jan-6-rally-become-march-capitol/ This Door’, Wash. Post (Jan. 14, 2021), https:// failed-gov-whitmer-kidnap-plot/69-3a86c917- 103. 167 Cong. Rec. S629 (daily ed. Feb. 10, www.washingtonpost.com/dc-md-va/2021/01/14/ 343a-431b-91b1-df5e72726a96. 2021) (statement of Ms. Manager Plaskett), dc-police-capitol-riot/?arc404=true. Luke 88. Katie Shepherd, Trump cheers supporters https://www.congress.gov/117/crec/2021/02/10/ Mogelson, New Yorker, Among the Insurrec- who swarmed a Biden bus in Texas: ‘These pa- CREC-2021-02-10-pt1-PgS615-4.pdf tionists, The New Yorker (Jan. 15, 2021), triots did nothing wrong’, Wash. Post (Nov. 2, 104. Women For Trump, Meet the Advisory https://www.newyorker.com/magazine/2021/01/ 2020), https://www.washingtonpost.com/na- Board, https://women.donaldjtrump.com/ 25/among-the-insurrectionists. tion/2020/11/02/trump-caravan-biden-bus/. 105. 167 Cong. Rec. S630 (daily ed. Feb. 10, 120. Officer Christopher Frank Affidavit, at 89. Matthew Schwartz, Trump Speaks Fond- 2021) (statement of Ms. Manager Plaskett), 1 (Jan. 6, 2021), https://perma.cc/YN87-BDKH; ly Of Supporters Surrounding Biden Bus In https://www.congress.gov/117/crec/2021/02/10/ Officer Alexandria Sims Affidavit, at 1 (Jan. Texas, NPR (Nov. 1, 2020), https:// CREC-2021-02-10-pt1-PgS615-4.pdf (page S630) 7, 2021), https://perma.cc/392C-CGPC; Special www.npr.org/2020/11/01/930083915/trump- 106. Greg Miller et al, A mob insurrection Agent Lawrence Anyaso Affidavit, at 1 (Jan. speaks-fondly-of-supporters-protecting- stoked by false claims of election fraud and 7, 2021), https://perma.cc/M3GZ-WSVM; Luke biden-bus-in-texas. promises of violent restoration, Wash. Post Mogelson, New Yorker, Among the Insurrec- 90. Stephen Fowler, ‘Someone’s Going To Get (Jan. 9, 2021), https:// tionists, The New Yorker (Jan. 15, 2021), Killed’: Ga. Official Blasts GOP Silence On www.washingtonpost.com/national-security/ https://www.newyorker.com/magazine/2021/01/ Election Threats, NPR (Dec. 1, 2020), https:// trump-capitol-mob-attack-origins/2021/01/09/ 25/among-the-insurrectionists. www.npr.org/sections/biden-transition-up- 0cb2cf5e-51d4-11eb-83e3-322644d82356- 121. Julia Jacobo, A visual timeline on how dates/2020/12/01/940961602/someones-going-to- story.html. the attack on Capitol Hill unfolded, ABC News get-killed-ga-official-blasts-gop-silence-on- 107. 167 Cong. Rec. S623 (daily ed. Feb. 10, (Jan. 10, 2021), https://abcnews.go.com/US/vis- election-threats. 2021) (statement of Mr. Manager Swallwell), ual-timeline-attack-capitol-hill-unfolded/ 91. Melissa Quinn, ‘‘Stand back and stand https://www.congress.gov/117/crec/2021/02/10/ story?id=75112066. by’’: Trump declines to condemn white suprema- CREC-2021-02-10-pt1-PgS615-4.pdf. 122. Ibid. cists at debate, CBS News (Sep, 30, 2020), 108. Bill Bostock, Videos show Trump pro- 123. Ibid. https://www.cbsnews.com/news/proud-boys- testers chanting ‘count those votes’ and ‘stop 124. 4 Lauren Leatherby & Anjali Singhvi, stand-back-and-stand-by-trump-refuses-to- the count’ outside separate ballot-counting sites Critical Moments in the Capitol Siege, N.Y. condemn-white-supremacists/. in Arizona and Michigan, Bus. Insider (Nov. 5, Times (Jan. 15, 2021), https:// 92. Sheera Frenkel & Annie Karni, Proud 2020), https://www.businessinsider.com/vid- www.nytimes.com/interactive/2021/01/15/us/ Boys celebrate Trump’s ‘stand by’ remark about eos-trump-protesters-michigan-arizona-vote- trump-capitol-riot-timeline.html. them at the debate, N.Y. Times (Sept. 29, 2020), count-2020-11 125. Ashley Parker et al., How the Rioters https://www.nytimes.com/2020/09/29/us/trump- 109. Jason Slotkin et al, 4 Stabbed, 33 Ar- Who Stormed the Capitol Came Dangerously proud-boys-biden.html. rested After Trump Supporters, Counterpro- Close to Pence, Wash. Post (Jan. 15, 2021), 93. Ben Collins & Brandy Zadrozny, Proud testers Clash In D.C., NPR (Dec. 12, 2020), https://www.washingtonpost.com/politics/ Boys celebrate after Trump’s debate callout, https://www.npr.org/2020/12/12/945825924/trump- pence-rioters-capitol-attack/2021/01/15/ NBC News (Sep. 30, 2020), https:// supporters-arrive-in-washington-once-again- ab62e434-567c-11eb-a08b- www.nbcnews.com/tech/tech-news/proud- for-a-million-maga-march. f1381ef3d207_story.html. boys-celebrate-after-trump-s-debate-call- 110. Atlantic Council’s DFRLab, 126. Rebecca Tan, A Black Officer Faced out-n1241512. #StopTheSteal: Timeline of Social Media and Down a Mostly White Mob at the Capitol. Meet 94. Alex Kaplan, Trump has repeatedly am- Extremist Activities Leading to 1/6 Insurrection, Eugene Goodman, Wash. Post (Jan. 14, 2021), plified QAnon Twitter accounts. The FBI has Just Security (Feb. 10, 2021), https:// https://www.washingtonpost.com/local/pub- linked the conspiracy theory to domestic terror, www.justsecurity.org/74622/stopthesteal- lic-safety/goodman-capitol-police-video/2021/ Media Matters (Jan. 11, 2021), https:// timeline-of-social-media-and-extremist-ac- 01/13/08ab3eb6-546b-11eb-a931- www.mediamatters.org/twitter/fbi-calls- tivities-leading-to-1-6-insurrection/ 5b162d0d033d_story.html. qanon-domestic-terror-threat-trump-has-am- 111. Pilar Melendez, ‘Trump Is Calling Us to 127. Marc Fisher et al., The Four-Hour In- plified-qanon-supporters-twitter-more–20. Fight!’: Georgia Teen Charged in Capitol surrection, Wash. Post (Jan. 7, 2021), https:// 95. Axios, Trump praises Anon supporters: ‘‘I Riots, Daily Beast (Feb. 8 2021), https:// www.washingtonpost.com/podcasts/post-re- understand they like me very much’’, Axios money.yahoo.com/trump-calling-us-fight- ports/four-hours-of-insurrection/; Lauren (Aug. 20, 2020), https://www.axios.com/trump- georgia-232147165.html. Leatherby et al., How a Presidential Rally praises-qanon-supporters-i-understand-they- 112. Dan Barry et al, ‘Our President Wants Turned Into a Capitol Rampage, N.Y. Times like-me-very-much–42146fb3–bd69–4943–8e80– Us Here’: The Mob That Stormed the Capitol, (Jan. 12, 2021), https://www.nytimes.com/ 2f0bcf4b0b17.html. N.Y. Times (Feb. 5, 2021), https:// interactive/2021/01/12/us/capitol-mob- 96. Philip Bump, Rather than condemn the www.nytimes.com/2021/01/09/us/capitol-riot- timeline.html. QAnon conspiracy theory, Trump elevates its ers.html 128. Julia Jacobo, A visual timeline on how dangerous central assertion, Wash. Post (Oct. 113. Alan Feurer & Nicole Hong, ‘I An- the attack on Capitol Hill unfolded, ABC News 15, 2020), https://www.washingtonpost.com/ swered the Call of My President’: Rioters (Jan. 10, 2021), https://abcnews.go.com/US/vis- politics/2020/10/15/rather-than-condemn- Say Trump Urged Them On, N.Y. Times ual-timeline-attack-capitol-hill-unfolded/ qanon-conspiracy-theory-trump-elevates-its- (Jan. 17, 2021), https://www.nytimes.com/2021/ story?id=75112066. dangerous-central-assertion/. 01/17/nyregion/protesters-blaming-trump-par- 129. Marc Fisher et al., The Four-Hour In- 97. Dan Barry & Sheera Frenkel, ‘‘Be There. don.html. surrection, Wash. Post (Jan. 7, 2021), https:// Will Be Wild!’: Trump All but Circled the Date, 114. Aaron Blake, What Trump said before www.washingtonpost.com/podcasts/post-re- N.Y. Times (Jan. 6, 2021), https:// his supporters stormed the Capitol, annotated, ports/four-hours-of-insurrection/. www.nytimes.com/2021/01/06/us/politics/cap- Wash. Post (Jan. 11, 2021), Trump’s speech be- 130. Ibid. itol-mob-trump-supporters.html. fore rioters stormed the Capitol, annotated— 131. Ellen Barry et al, Woman Killed in Cap- 98. Donald Trump, See you in Washington, Washington Post itol Embraced Trump and QAnon, N.Y. Times DC, on January 6th. Don’t miss it. Information 115. Ibid. (Jan. 7, 2021), https://www.nytimes.com/2021/ to follow!, Facebook (Dec. 27, 2020), https:// 116. Julia Jacobo, A visual timeline on how 01/07/us/who-was-ashli-babbitt.html. m.facebook.com/DonaldTrump/posts/see-you- the attack on Capitol Hill unfolded, ABC News 132. 6 Rep. Dan Killdee (@RepDanKildee), in-washington-dc-on-january-6th-dont-miss- (Jan. 10, 2021), https://abcnews.go.com/US/vis- Twitter (Jan. 6, 2021, 2:52 PM), https://twit- it-information-to-follow/10166040173540725/. ual-timeline-attack-capitol-hill-unfolded/ ter.com/RepDanKildee/status/ 99. Dan Barry & Sheera Frenkel, ‘‘Be There. story?id=75112066. 1346907565482004495; Rose Minutaglio, Rep. Will Be Wild!’: Trump All but Circled the Date, 117. Ibid. Susan Wild On The ‘Sheer Panic’ She Felt In N.Y. Times (Jan. 6, 2021), https:// 118. Jamie Raskin et al, Trial Memorandum That Viral Photo, Elle (Jan. 7, 2021), https:// www.nytimes.com/2021/01/06/us/politics/cap- of the United States House of Representatives In newsopener.com/fashion/rep-susan-wild-on- itol-mob-trump-supporters.html. the Impeachment Trial of President Donald J. the-sheer-panic-she-felt-in-that-viral-photo/; 100. @realdonaldtrump, I will be speaking at Trump, House Judiciary Com. (Feb. 2, 2021), CBS News, Video Shows Members of Congress the SAVE AMERICA RALLY tomorrow on the at 22, https://judiciary.house.gov/ Taking Cover in House Gallery, (Jan. 6, 2021), Ellipse at 11 AM Eastern. Arrive early—doors uploadedfiles/house—trial—brief—final.pdf, https://ft.cbsnews.com/video/video-shows- open at 7 AM Eastern. BIG CROWDS!, Taken from Marc Fisher et al., The Four- members-of-congress-taking-cover-in-house- Instagram (Jan. 5, 2020), https:// Hour Insurrection, Wash. Post (Jan. 7, 2021), gallery-cbsnews-special-report-2021-01-06/. www.instagram.com/p/CJrjQ79sY3Q/?hl=en https://www.washingtonpost.com/graphics/ 133. Haley Britzky, This Army Ranger- 101. 167 Cong. Rec. S629 (daily ed. Feb. 10, 2021/politics/trump-insurrection-capitol/. turned-Congressman was last out of the House 2021) (statement of Ms. Manager Plaskett), 119. Evan Hill et al., They Got a Officer!’: chamber during the Capitol riots, Task and https://www.congress.gov/117/crec/2021/02/10/ How a Mob Dragged and Beat Police at the Purpose (Jan. 7, 2021), https:// CREC-2021-02-10-pt1-PgS615-4.pdf Capitol, N.Y. Times (Jan. 11, 2021), https:// taskandpurpose.com/news/jason-crow-army- 102. Philip Bump, When did the Jan. 6 rally timesofindia.indiatimes.com/world/us/they- ranger-capitol-riots/. become a march to the Capitol?, Wash. Post got-a-officer-how-a-mob-dragged-and-beat- 134. Ibid.

VerDate Sep 11 2014 07:45 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.040 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S937 135. CBS News, Video shows members of Con- https://crsreports.congress.gov/product/pdf/ ments/20403358-william-barr-election-memo- gress taking cover in House gallery, CBS (Jan. IF/IF11072. november-9. 6, 2021), https://www.cbsnews.com/video/ 154. Brandenburg v. Ohio, 395 U.S. 444 179. Katie Benner & Adam Goldman, Fed- video-shows-members-of-congress-taking- (1969). eral Prosecutors Push Back on Barr Memo on cover-in-house-gallery-cbsnews-special-re- 155. Ibid. Voter Fraud Claims, CNN (Nov. 13, 2020), port-2021-01-06/. 156. Ibid. https://www.nytimes.com/2020/11/13/us/poli- 136. Julia Jacobo, A visual timeline on how 157. Hess v. Indiana, 414 U.S. 105, 110 (1973). tics/justice-department-voter-fraud.html. the attack on Capitol Hill unfolded, ABC News 158. Id. at 107. 180. Kate Benner, Trump and Justice Dept. (Jan. 10, 2021), https://abcnews.go.com/US/vis- 159. Id. at 108–109. Lawyer Said to Have Plotted to Oust Acting At- ual-timeline-attack-capitol-hill-unfolded/ 160. NAACP v. Claiborne Hardware Co., 458 torney General, N.Y. Times (Jan. 22, 2021), story?id=75112066. U.S. 886 (1982). https://www.nytimes.com/2021/01/22/us/poli- 137. 2 David K. Li & Ali Gostanian, Georgia 161. Id. at 886. tics/jeffrey-clark-trump-justice-department- Lawyer Said He Kicked in Pelosi’s Door, She 162. Id. at 927. election.html. Could’ve Been ‘Torn into Little Pieces’, NBC 163. Id. at 928. 181. Ibid. 164. Garcetti v. Ceballos, 547 U.S. 410, 419 182. U.S. Const. art. II, § 1, cl. 2. News (Jan. 19, 2021), https:// 183. Electoral Count Act, Pub.L. 49–90. www.nbcnews.com/news/us-news/georgia-law- (2006). 165. Cornell Law, GARCETTI v. CEBALLOS 184. NCSL, The Electoral College, (Nov. 11, yer-said-he-kicked-pelosi-s-door-she-could- 2020), https://www.ncsl.org/research/elections- n1254756. (No. 04–473), Legal Inf. Inst. (May 30, 2006), https://www.law.cornell.edu/supct/html/04- and-campaigns/the-electoral-college.aspx. 138. Ashley Parker et al., How the Rioters 185. Peter Alexander et al, Trump invites 473.ZS.html. Who Stormed the Capitol Came Dangerously Michigan GOP lawmakers to White House after 166. Ibid. Close to Pence, Wash. Post (Jan. 15, 2021), calling officials in key county, NBC News (Nov. 167. Rosalind S. Helderman et al, ‘Trump https://www.washingtonpost.com/politics/ 19, 2020), https://www.nbcnews.com/politics/ said to do so’: Accounts of rioters who say the pence-rioters-capitol-attack/2021/01/15/ 2020-election/trump-called-michigan-repub- president spurred them to rush the Capitol could ab62e434-567c-11eb-a08b- licans-they-sought-rescind-their-certifi- be pivotal testimony, Wash. Post (Jan. 16, f1381ef3d207_story.html. cation-votes-n1248254. 139. Peter Baker et al., Pence Reached His 2021), https://www.washingtonpost.com/poli- 186. Nick Niedzwiadek et al, After Trump Limit with Trump. It Wasn’t Pretty, N.Y. tics/trump-rioters-testimony/2021/01/16/ meeting, Michigan GOP leaders say Biden’s win Times (Jan. 12, 2021). 01b3d5c6-575b-11eb-a931- still stands, Politico (Nov. 20, 2020) https:// _ 140. Lauren Leatherby et al., How a Presi- 5b162d0d033d story.html. www.politico.com/news/2020/11/20/michigan- dential Rally Turned Into a Capitol Rampage, 168. 167 Cong. Rec. S659 (daily ed. Feb. 11, gop-dc-trump-election-438690; & Ursula N.Y. Times (Jan. 12, 2021), https:// 2021) (statement of Mr. Manager Raskin), Perano, Trump called Michigan Republican www.nytimes.com/interactive/2021/01/12/us/ https://www.congress.gov/117/crec/2021/02/11/ who wanted to flip vote on Wayne County elec- capitol-mob-timeline.html. CREC-2021-02-11-pt1-PgS645-2.pdf. tion certification, Axios (Nov. 19, 2020), https:// 141. Maggie Haberman & Jonathan Martin, 169. Washington Papers, The Electoral Count www.axios.com/trump-called-wayne-county- After the Speech: What Trump Did as the Cap- for the Presidential Election of 1789, University republican-michigan-vote-ff545fb1-657a-4016- itol Was Attacked, N.Y. Times (Feb. 13, 2021), of Virginia, (https://washingtonpapers.org/re- 939d-015e5289e894.html. https://www.nytimes.com/2021/02/13/us/poli- sources/articles/the-electoral-count-for-the- 187. Anita Kumar & Gabby Orr, Inside tics/trump-capitol-riot.html. presidential-election-of-1789/. Trump’s pressure campaign to overturn the elec- 142. Lexi Lonas, Sasse says Trump was ‘de- 170. National Archives, 2020 Electoral Col- tion, Politico (Dec. 21, 2020), https:// lighted’ and ‘excited’ by reports of Capitol, The lege Results, National Archives and Records www.politico.com/news/2020/12/21/trump-pres- Hill (Jan. 8, 2021), https://thehill.com/ Administration (2020), https:// sure-campaign-overturn-election-449486. homenews/senate/533403-sasse-says-trump- www.archives.gov/electoral-college/2020. 188. Amy Gardner et al, Trump asks Penn- was-delighted-and-excited-by-reports-of-cap- 171. Mark Sherman, Associated Press, sylvania House speaker for help overturning itol-riot. Biden clears Electoral College 270-vote threshold election results, personally intervening in a 143. Sunlen Serfaty et al, As riot raged at to become president, PBS News (Dec. 14, 2020), third state, Wash. Post (Dec. 8, 2020), https:// Capitol, Trump tried to call senators to overturn https://www.pbs.org/newshour/politics/biden- www.washingtonpost.com/politics/trump- election, CNN (Jan. 8, 2021), https:// clears-electoral-college-270-vote-threshold- pennsylvania-speaker-call/2020/12/07/d65fe8c4- www.cnn.com/2021/01/08/politics/mike-lee- to-become-president. 38bf-11eb-98c4-25dc9f4987e8_story.html. tommy-tuberville-trump-misdialed-capitol- 172. Ibid. 189. Alison Durkee, Trump Campaign Assem- riot/index.html. 173. John Wagner et al, Pence declares Biden bling Alternate Electors in Key States in Far- 144. Judge G. Michael Harvey, Special Agent winner of the presidential election after Con- Fetched Attempt to Overturn Election, Forbes James Soltes Affidavit, (Jan. 8, 2021), at 3 gress finally counts electoral votes, Wash. Post (Dec. 14, 2020), https://www.forbes.com/sites/ https://www.justice.gov/usao-dc/case-multi- (Jan. 7, 2021), https:// alisondurkee/2020/12/14/trump-campaign-as- defendant/file/1364486/download; Alan Feurer www.washingtonpost.com/politics/2021/01/06/ sembling-alternate-electors-in-key-states-in- & Nicole Hong, ‘I Answered the Call of My congress-electoral-college-vote-live-updates/. far-fetched-attempt-to-overturn-election/ President’: Rioters Say Trump Urged Them 174. William Cummings et al, By the num- ?sh=66a9659b3213. On, N.Y. Times (Jan. 17, 2021), https:// bers: President Donald Trump’s failed efforts to 190. Deanna Paul, Republican Electors Cast www.nytimes.com/2021/01/17/nyregion/pro- overturn the election, USA Today (Jan. 6, Unofficial Ballots, Setting Up Congressional Wall St. J. (Dec. 28, 2020), https:// testers-blaming-trump-pardon.html. 2021), https://www.usatoday.com/in-depth/ Clash, 145. Dan Barry et al., ‘Our President Wants news/politics/elections/2021/01/06/trumps- www.wsj.com/articles/republican-electors- Us Here’: The Mob That Stormed the Cap- failed-efforts-overturn-election-numbers/ cast-unofficial-ballots-setting-up-congres- sional-clash-11609164000. itol, N.Y. Times (Jan. 9, 2021), https:// 4130307001/. 191. Rick Hasen, Trump Campaign Planning www.nytimes.com/2021/01/09/us/capitol-riot- 175. Matt Zapotosky & Devlin Barrett, Barr on Sending Alternative Slate of Electors to Con- ers.html. clears Justice Dept. to investigate alleged voting gress, Per Stephen Miller. It Won’t Matter to the 146. David Begnaud (@DavidBegnaud), irregularities as Trump makes unfounded fraud Outcome. Election Law Blog (Dec. 14, 2020), Twitter (Jan. 15, 2021, 8:30 PM) https://twit- claims, Wash. Post (Nov. 9, 2020), https:// www.washingtonpost.com/national-security/ https://electionlawblog.org/?p=119632. ter.com/DavidBegnaud/status/ 192. Anita Kumar & Gabby Orr, Inside trump-voting-fraud-william-barr-justice-de- 1350254179218911232. Trump’s pressure campaign to overturn the elec- partment/2020/11/09/d57dbe98-22e6-11eb-8672- 147. Kyle Cheney & Josh Gerstein, Judge or- tion, Politico (Dec. 21, 2020), https:// c281c7a2c96e_story.html. ders Proud Boy charged in Capitol riot held www.politico.com/news/2020/12/21/trump-pres- 176. Jess Bravin & Sadie Gurman, Trump without bond, Politico (Feb. 10, 2021), https:// sure-campaign-overturn-election-449486. www.politico.com/news/2021/02/10/proud-boy- Pressed Justice Department to Go Directly to 193. Amy Gardner, ‘I just want to find 11,780 insurrection-trump-468353. Supreme Court to Overturn Election Results, votes’: In extraordinary hour-long call, Trump 148. Shelly Tan et al., How One of America’s W.S. Journal (Jan. 23, 2021), https:// pressures Georgia secretary of state to recal- Ugliest Days Unraveled Inside and Outside the www.wsj.com/articles/trump-pressed-to- culate the vote in his favor, Wash. Post (Jan. Capitol, Wash. Post (Jan. 9, 2021), https:// change-justice-department-leadership-to- 3, 2021), https://www.washingtonpost.com/pol- www.washingtonpost.com/nation/interactive/ boost-his-voter-fraud-claims-11611434369. itics/trump-raffensperger-call-georgia-vote/ 2021/capitol-insurrection-visual-timeline/. 177. Michael Crowley et al, In his first one- 2021/01/03/d45acb92-4dc4-11eb-bda4- 149. Ibid. on-one interview since losing to Biden, Trump 615aaefd0555_story.html. 150. Staff of H. Comm. on the Judiciary, baselessly cast more conspiracy theories, N.Y. 194. The New York Times, Transcript: Mr. 93rd Cong., Rep. on Constitutional Grounds Times (Dec. 23, 2020), https:// Trump’s Phone Call With Georgia Election Offi- for Presidential Impeachment 27 (Comm. www.nytimes.com/live/2020/11/29/us/joe-biden- cials, N.Y. Times (Jan. 3, 2021), https:// Print 1974). trump#in-his-first-one-on-one-interview- www.nytimes.com/2021/01/03/us/politics/ 151. U.S. Const. amend. I. since-losing-to-biden-trump-baselessly-cast- trump-raffensperger-georgia-call-tran- 152. Roth v. United States, 354 U.S. 476, 482 more-conspiracy-theories. script.html. (1957). 178. Kadhim Shubber, William Barr Election 195. Ibid. 153. Victoria L. Killion, The First Amend- Memo—November 9, Financial Times (Nov. 9, 196. Miles Parks, Georgia Election Official: ment: Categories of Speech, CRS (Jan. 16, 2019), 2020), https://beta.documentcloud.org/docu- Don’t Let Misinformation ‘Suppress Your Own

VerDate Sep 11 2014 07:39 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.042 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S938 CONGRESSIONAL RECORD — SENATE March 1, 2021 Vote’, NPR (Jan. 4, 2021), https://www.npr.org/ www.cnn.com/2020/12/10/politics/read-house- 232. 167 Cong. Rec. S641–S642 (daily ed. Feb. 2021/01/04/953321408/georgia-election-official- republicans-texas-supreme-court/index.html. 10, 2021) (statement of Mr. Manager Castro). dont-let-misinformation-suppress-your-own- 215. Adam Liptak, Supreme Court Rejects https://www.congress.gov/117/crec/2021/02/10/ vote. Texas Suit Seeking to Subvert Election, N.Y. CREC-2021-02-10-pt1-PgS615-4.pdf (S641–S642). 197. U.S. Const. art. II, § 1. Times (Dec. 11, 2020), https:// 233. 167 Cong. Rec. S642 (daily ed. Feb. 10, 198. Michael Schmidt, Trump Says Pence www.nytimes.com/2020/12/11/us/politics/su- 2021) (statement of Mr. Manager Castro). Can Overturn His Loss in Congress. That’s Not preme-court-election-texas.html. https://www.congress.gov/117/crec/2021/02/10/ 216. Andrew Solender, Nearly a Dozen Re- How It Works, N.Y. Times (Jan. 5, 2021), CREC-2021-02-10-pt1-PgS615-4.pdf. https://www.nytimes.com/2021/01/05/us/poli- publican Senators Will Object to Electoral Col- 234. Matt Stieb, Pence, Not Trump, Gave tics/pence-trump-election.html. lege Vote, Forbes (Jan. 2, 2021), https:// 199. Maggie Haberman & Katie Benner, Jus- www.forbes.com/sites/andrewsolender/2021/01/ Order to Activate National Guard: Report, In- tice Dept. Asks Judge to Toss Election Lawsuit 02/nearly-a-dozen-republican-senators-will- telligencer, N.Y. Mag. (Jan. 6, 2021), https:// Against Pence, N.Y. Times (Dec. 31, 2020), object-to-electoral-college-vote/ nymag.com/intelligencer/2021/01/pence-not- https://www.nytimes.com/2020/12/31/us/poli- ?sh=7965a5881c3e. trump-activated-the-national-guard-re- tics/justice-department-mike-pence-louie- 217. Jake Tapper, At least 140 House Repub- port.html. gohmert.html. licans to vote against counting electoral votes, 235. U.S. Const. art. II, § 1, cl. 8. 200. Caroline Linton, Judge dismisses two GOP lawmakers say, CNN (Dec. 31, 2020), 236. 167 Cong. Rec. S662 (daily ed. Feb. 11, Gohmert’s attempt to force Pence to decide elec- https://www.cnn.com/2020/12/31/politics/elec- 2021) (statement of Mr. Manager Raskin). tion results, CBS (Jan. 3, 2021), https:// toral-college-house-republicans/index.html. https://www.congress.gov/117/crec/2021/02/11/ www.cbsnews.com/news/louie-gohmert- 218. Dareh Gregorian, Congress is set to CREC-2021-02-11-pt1-PgS645-2.pdf. count the Trump-Biden Electoral College votes. trump-election-lawsuit-pence-dismissed-fed- Ms. COLLINS. Mr. President, the eral-judge/. Here’s the lowdown, ABC News (Jan. 5, 2021), 201. Nick Niedzwiadek & Kyle Cheney, https://www.nbcnews.com/politics/2020-elec- Senate was asked to decide whether Trump pressures Pence to throw out election re- tion/congress-set-count-trump-biden-elec- this body has the constitutional juris- sults—even though he can’t, Politico (Jan. 5, toral-college-votes-here-s-n1252609. diction to hold an impeachment trial of 2021), https://www.politico.com/news/2021/01/ 219. Meryl Kornfield, From a presidential Donald Trump now that he is no longer 05/trump-pressures-pence-election-results- commission to Trump-nominated judges, here’s President of the United States. While 455069. who has rebuked Trump’s voter fraud claims, the Constitution does not explicitly ad- 202. Ibid. Wash. Post (Jan. 3, 2021), https:// www.washingtonpost.com/politics/2021/01/03/ dress Congress’ jurisdiction when the 203. Josh Dawsey & Ashley Parker, Inside subject of impeachment is a former the remarkable rift between Donald Trump and voter-fraud/. Mike Pence, Wash. Post (Jan. 11, 2021), https:// 220. GCC et al, Joint Statement from Elections President—or any former officer—its www.washingtonpost.com/politics/trump- Infrastructure Government Coordinating Coun- text and purpose as applied to the facts pence-breakuo-capitol-riot/2021/01/11/ cil & the Election Infrastructure Sector Coordi- in this matter support the conclusion 6a6aa052-5357-11eb-89bc- nating Executive Committees, CISA (Nov. 12, that the trial should proceed. 2020), https://www.cisa.gov/news/2020/11/12/ 7f51ceb6bd57_story.html. The question of Senate jurisdiction 204. Ibid. joint-statement-elections-infrastructure- 205. Jeff Mason, Despite Trump pressure, government-coordinating-council-election. should start with the text of the Con- Pence will not block Biden’s election certifi- 221. Katie Benner & Michael S. Schmidt, stitution itself. The impeachment cation: advisers, Reuters (Jan. 4, 2021), https:// Barr Acknowledges Justice Dept. Has Found No process is described in article I, which www.reuters.com/article/us-usa-election- Widespread Voter Fraud, N.Y. Times (Dec. 1, delineates the respective powers of the pence/despite-trump-pressure-pence-will-not- 2020), https://www.nytimes.com/2020/12/01/us/ House of Representatives and the Sen- block-bidens-election-certification-advisers- politics/william-barr-voter-fraud.html. 222. The Avalon Project, , ate. Section 2 plainly states that the idUSKBN29A2J0. Madison Debates Yale Law School Lillian Goldman Law Li- House ‘‘shall have the sole power of im- 206. Quint Forgey, ‘Do it Mike’: Trump leans peachment.’’ In this matter, there is no on Pence to reject Biden’s Electoral College cer- brary (Jul. 20, 1787), https://ava- _ tification, Politico (Jan. 6, 2021), https:// lon.law.yale.edu/18th century/de- dispute that impeachment occurred be- _ www.politico.com/news/2021/01/06/do-it-mike- bates 720.asp. fore former President Trump’s term ex- 223. Id. at 64. pired, and, therefore, there is no dis- trump-leans-on-pence-to-reject-bidens-elec- 224. Ibid. toral-college-certification–455319. 225. U.S. Const. amend. XX, § 1. pute that the House had jurisdiction to 207. Ashley Collman, Trump is still wrongly 226. Sara Georgini, How John Adams Man- impeach him. insisting that Pence can change the election re- aged a Peaceful Transition of Presidential What is at issue is whether the im- sult, and he called a New York Times report Power, Smithsonian Mag. (Dec. 7, 2020), that said otherwise ‘fake news’, Bus. Insider peachment trial can occur in the Sen- https://www.smithsonianmag.com/history/ ate now that former President Trump (Jan. 6, 2021), https:// how-john-adams-managed-peaceful-transi- www.businessinsider.com/trump-wrongly-in- tion-presidential-power–180976451/. is no longer in office. Again, I look to sisting-pence-can-overturn-election2021-1. 227. 167 Cong. Rec. S627 (daily ed. Feb. 11, the text of article I. Section 3 states 208. Brian Naylor, Read Trump’s Jan. 6 2021) (statement of Mr. Manager Lieu), that ‘‘the Senate shall have the sole Speech, A Key Part Of Impeachment Trial, NPR https://www.congress.gov/117/crec/2021/02/10/ Power to try all Impeachments.’’ As (Feb. 10, 2021), https://www.npr.org/2021/02/10/ CREC-2021-02-10-pt1-PgS615-4.pdf (S627). former Federal circuit court Judge Mi- 966396848/read-trumps-jan-6-speech-a-key- 228. The Federalist Paper No. 47 (James chael McConnell has observed, the key part-of-impeachment-trial. Madison) (Jacob E. Cooke ed., 1961). 209. John Haltiwaner, Trump attacks Pence 229. See generally The Federalist Paper No. word here is ‘‘all.’’ Sections 2 and 3 for not having the ‘courage’ to overturn the 47 (James Madison) (Jacob E. Cooke ed., read together lead to the inescapable election as the president’s supporters storm the 1961); The Federalist Paper No. 48 (James conclusion that, if the House presents Capitol, Bus. Insider (Jan. 6, 2021), https:// Madison) (Jacob E. Cooke ed., 1961); The Fed- the Senate with a valid impeachment www.businessinsider.com/trump-attacks- eralist Paper No. 49 (James Madison) (Jacob article, the Senate has jurisdiction to pence-for-not-having-courage-to-overturn- E. Cooke ed., 1961); The Federalist Paper No. conduct the trial. election-2021-1. 50 (James Madison) (Jacob E. Cooke ed., 1961; 210. https://www.congress.gov/117/crec/2021/ The Federalist Paper No. 51 (James Madison) Some have argued that such an inter- 02/10/CREC-2021-02-10-pt1-PgS615-4.pdf (S626). (Jacob E. Cooke ed., 1961). (Federalist Papers pretation would put all former Presi- 211. Paul Kane & Scott Clement, Just 27 No. 47 through No. 51 explain how the Execu- dents, Vice Presidents, and office hold- congressional Republicans acknowledge Biden’s tive, Legislative, and Judicial Branches were ers dating back to the Washington ad- win, Washington Post survey finds, Wash. Post to be wholly separated from each other, yet ministration at risk of being im- (Dec. 5, 2020), https:// accountable to each other through a system peached and convicted, but the facts in www.washingtonpost.com/politics/survey- of checks and balances.); See also Nixon v. this matter do not require such a who-won-election-republicans-congress/2020/ Administrator of General Services, 433 U.S. sweeping conclusion. By asserting its 12/04/1a1011f6-3650-11eb-8d38- 425, 426 (1977). (In Nixon v. GSA, the Supreme 6aea1adb3839_story.html. Court articulated the test for a violation of jurisdiction over this trial, the Senate 212. Anita Kumar & Gabby Orr, Inside the separation of powers as occurring when is simply ruling that a President who Trump’s pressure campaign to overturn the elec- the action of one branch ‘‘prevents [another was impeached while still in office can tion, Politico (Dec. 21, 2020), https:// branch] from accomplishing its constitu- be tried after he is no longer in office— www.politico.com/news/2020/12/21/trump-pres- tionally assigned functions.’’) nothing more. sure-campaign-overturn-election-449486. 230. U.S. Const. art. II, § 3. 213. Ibid. 231. 167 Cong. Rec. S641–S643 (daily ed. Feb. The former President’s attorneys 214. Daniella Diaz, READ: Brief from 126 Re- 10, 2021) (statement of Mr. Manager Castro), argue that the Senate does not have ju- publicans supporting Texas lawsuit in Supreme https://www.congress.gov/117/crec/2021/02/10/ risdiction to conduct a trial because Court, CNN (Dec. 11, 2020), https:// CREC-2021-02-10-pt1–PgS615-4.pdf. the penalty prescribed for conviction

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.045 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S939 under article II, section 4, is removal charged with in the Article?; and (2) if so, lots mailed by Election Day could still be from office. Because former President does that action warrant conviction and dis- counted if those ballots were received within Trump cannot be removed, they argue qualification from holding future office? three days of Election Day.15 In addition to that the Constitution requires he not THE BIG LIE DEBUNKED lying about whether it was legal to receive ballots after Election Day, the former Presi- The public record demonstrates clearly be tried. But article I, section 4, au- dent drastically overinflated the number of that the former President engaged in the thorizes the Senate to impose the pen- ballots received after Election Day in Penn- conduct outlined in the Article of Impeach- alty of permanent disqualification sylvania. In fact, there were only approxi- ment put forward by the House of Represent- from holding office in the future if it mately ten thousand ballots received after atives. We watched his actions with our own Election Day and those ballots were not even chooses to do so. And, notably, a vote eyes. We heard his conspiracy theories and included in Pennsylvania’s certified election on whether or not to disqualify can baseless accusations with our own ears. For results.16 Since President Biden won Penn- only be taken after conviction, at months after the election, all of America sylvania by over eighty thousand votes, the which point any defendant would have witnessed the former President’s deliberate ballots received after Election Day would been removed and no longer an office repetition of the ‘‘Big Lie;’’ he repeatedly not have made any difference in Pennsylva- holder. claimed—without any evidence—that the nia’s Presidential election outcome.17 If the defense’s argument were to be 2020 general election was rigged and stolen In another tweet, the former President 6 followed to its logical conclusion, it from him. In furtherance of this falsehood, claimed that Pennsylvania prevented his the former President has made numerous would lead to a constitutional absurd- campaign officials ‘‘from watching much of claims, all easily and consistently rebutted, 18 ity—the Senate would have the sole the Ballot count.’’ Again, the former Presi- regarding the votes cast in multiple battle- dent was lying. In fact, in response to a power to apply the disqualification ground states. As the Senior Senator from judge’s question during one hearing on penalty, but it would never have juris- Pennsylvania, a state that the former Presi- whether there were election observers in the diction to do so. If the Senate were un- dent relentlessly attacked after the election, canvassing room, a lawyer representing the able to consider disqualification after a I believe it is important to debunk the nu- former President offered the seemingly bi- President is no longer in office, the sec- merous false statements that the former zarre concession that there was ‘‘a non-zero ond penalty would lose its meaning. A President asserted regarding the Pennsyl- number of people in the room.’’19 Further- vania Presidential election. more, multiple courts confirmed that the more sensible reading of article I, sec- Prior to the election, it was widely re- tion 4, is that both punishments, re- former President’s campaign presented no ported that the public should ‘‘beware’’ of evidence suggesting that his campaign’s ob- moval and disqualification, are equally early U.S. election tallies because of the un- servers were treated any differently than the significant, and therefore, the Senate precedented amount of mail-in voting and observers for the Biden Campaign.20 has jurisdiction in this matter. the different ways that states were proc- The former President’s lies did not stop For all the reasons I have set forth, I essing ballots due to the COVID–19 pan- there. In late November, the former Presi- believe that the Senate must exercise demic.7 In Pennsylvania specifically, Demo- dent tweeted that over a million votes in jurisdiction, and I voted to begin its cratic voters were outpacing Republican vot- Pennsylvania were ‘‘created out of thin 8 impeachment proceedings. ers by a 3–to–1 ratio in mail-in voting. Since air.’’21 This is a lie. Here, the former Presi- Mr. CASEY. Mr. President, I ask the mail-in votes would be the last to be dent was referring to a conspiracy theory of- counted in most counties, experts cautioned fered by Republican State Senator Doug unanimous consent that the following voters that the former President might ap- Mastriano, who claimed that the Pennsyl- statement regarding the impeachment pear to be winning in the early returns on vania Department of State was reporting an trial of the former President be printed election night (a ‘‘Red mirage’’) only to lose extra 1.1 million mail-in votes in Pennsyl- in the RECORD. that lead as election officials counted more vania.22 Senator Mastriano indicated that There being no objection, the mate- mail-in ballots in the days after Election Pennsylvania had reported mailing out rial was ordered to be printed in the Day (a ‘‘Blue shift’’).9 ‘‘1,823,148 ballots, of which 1,462,302 were re- RECORD, as follows: Despite these warnings, the former Presi- turned,’’ but he indicated that a dashboard dent attempted to sow doubt, even before STATEMENT ON THE SECOND IMPEACHMENT on the Department of State’s website re- Election Day, about votes counted after No- TRIAL OF THE FORMER PRESIDENT corded over 2.5 mail-in ballots in the general vember 3. A week before Election Day, he in- election.23 While Senator Mastriano did not Mr. CASEY. Mr. President. The former dicated that ‘‘counting ballots for two include sources for his data, it was easy to President’s conduct during and after the 2020 weeks’’ after Election Day was ‘‘totally inap- determine that he was conflating different Presidential election was indefensible and propriate’’ and he did not believe it was con- datasets from the general election and the dangerous. By inciting an insurrection sistent with our Nation’s election laws.10 To June primaries. A dataset from the Pennsyl- against Congress and pressuring government be clear, there is nothing improper or illegal vania Department of State clearly detailed officials across our Nation to overturn the about election officials counting legally cast that there were 1,823,148 mail-in ballot re- election in his favor, the former President votes after Election Day. Nonetheless, as quest for the June 2020 primaries24—the directly ‘‘threatened the integrity of the election officials in Pennsylvania began to exact number that Senator Mastriano democratic system, interfered with the process the heavily Democratic-leaning cited—while Pennsylvania’s official returns peaceful transition of power, and imperiled a mail-in ballots in the days following Elec- for the 2020 general election clearly illus- coequal branch of Government.’’1 As long as tion Day and the former President’s ‘‘Red trated that over 2.6 million voters cast a bal- he is able to hold public office under the mirage’’ predictably turned to a ‘‘Blue shift’’ lot by mail in the Presidential election.25 United States, he will remain a grave threat in favor of President Biden, the former Presi- In another tweet on December 28, the to our national security and our Constitu- dent claimed that officials were ‘‘finding former President claimed that there were tion. For these reasons, I again voted to con- Biden votes all over the place.’’11 In reality, ‘‘205,000 more votes than there were voters’’ vict the former President on the House of election officials in Pennsylvania were sim- in Pennsylvania.26 This too is another lie. Representatives’ Article of Impeachment. ply counting legally cast votes. As Repub- Again, the former President appeared to be CONSTITUTIONALITY OF THE TRIAL lican Philadelphia Commissioner Al Schmidt referencing yet another conspiracy theory As a threshold question in this trial, the said: ‘‘In the birthplace of our Republic, offered by another state legislator, Rep- former President’s legal team and several counting votes is not a bad thing. Counting resentative Frank Ryan.27 Representative Republican Senators have argued that the votes cast on or before Election Day by eligi- Ryan claimed that the official election re- Senate cannot hold an impeachment trial ble voters is not corruption. It is not cheat- turns included 205,000 more votes than those against a President who is no longer in of- ing. It is democracy.’’12 listed in Pennsylvania’s voter registration fice.2 This argument is just another conven- Relatedly, the former President also database.28 Pennsylvania Attorney General ient excuse for some of my Republican col- claimed that in Pennsylvania, ‘‘tens of thou- Josh Shapiro explained that the voter reg- leagues to avoid holding the former Presi- sands of votes were illegally received after 8 istration database referenced by Representa- dent accountable. Not only has the theory P.M. on Tuesday, Election Day, totally and tive Frank ‘‘is updated by each county indi- been roundly rejected by both liberal and easily changing the results.’’13 Here again, vidually, and this updating process can take conservative constitutional legal scholars,3 the former President was lying. In Sep- several weeks following an election.’’29 Thus, it would also completely contravene both tember 2020, the Pennsylvania Supreme the Attorney General explained that it ap- Senate and historical precedent.4 In this Court extended the mail-in ballot receipt peared that Representative Ryan was com- case, consistent with the prevailing legal deadline in Pennsylvania by three days be- paring ‘‘the official returns with incomplete theory and historical precedent, the Senate cause of the unprecedented circumstances data from the registration database to jus- voted to affirm the constitutionality of this caused by the COVID–19 pandemic.14 The tify his baseless claim that there were more current trial—a decision that I fully sup- Pennsylvania Supreme Court’s decision did votes than voters.’’30 ported.5 Thus, after addressing the threshold not permit eligible voters to vote after Elec- Unfortunately, the above lies are merely a Constitutional issue, the question before tion Day. Rather, pursuant to the Free and sampling of the former President’s total lies every Senator in this trial became twofold— Equal Elections Clause of the Pennsylvania about the election process in Pennsylvania (1) did the former President do what he is Constitution, the court explained that bal- and across the Nation. In addition to these

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G01MR6.014 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S940 CONGRESSIONAL RECORD — SENATE March 1, 2021 falsehoods, the former President claimed— He also began an aggressive lobbying cam- his rallies assaulting protestors by calling without evidence—that there were ‘‘900,000 paign against Vice President Pence.44 Pursu- their actions ‘‘very, very appropriate.’’ 57 In Fraudulent Votes’’ in Pennsylvania,31 that ant to the Twelfth Amendment, the Vice another 2016 rally in Las Vegas, the former Dominion Voting Systems switched 221,000 President counts each state’s certified Elec- President commented that he would like to votes from the former President to Joe Biden toral College votes for President in a joint ‘‘punch [a protestor] in the face’’ before in Pennsylvania,32 and that ‘‘Fraud and ille- session of Congress.45 However, the former reminiscing about the fictional ‘‘old days’’ gality’’ were a ‘‘big part’’ of his election law- President regularly lied about the constitu- when violent behavior was allegedly more suits in Pennsylvania.33 tional duty of the Vice President. In another acceptable.58 ‘‘You know what they used to The Pennsylvania election was adminis- attempt to turn the election in his favor do to guys like that when they were in a tered safely and securely by thousands of Re- through illegitimate means, the former place like this?’’ he asked the crowd. publican and Democratic election officials President suggested that Vice President ‘‘They’d be carried out on a stretcher, and selfless volunteers across the Common- Pence should violate his oath of office by re- folks.’’59 wealth. We know this because as the House fusing to count certain electoral votes for This abhorrent behavior did not change Managers highlighted in their trial brief, President Biden during the joint session.46 when the former President entered office. In ‘‘[o]ur legal system affords many ways in After failing to overturn the election August 2017, after a rally of white suprema- which a candidate can contest the outcome through the courts and his pressure cam- cists resulted in three deaths and more than of an election.’’34 The former President did paign on other elected officials, the former 33 other injuries in Charlottesville, Virginia, not merely contest the election in Pennsyl- President took aim for one more attack on the former President offered perhaps the vania, but also in Arizona, Georgia, Michi- American democracy. He summoned his mob most disturbing comments of his Presidency gan, Nevada, and Wisconsin.35 In total, the of insurrectionists to Washington, D.C. on when he suggested that there was ‘‘blame on former President and his allies filed 62 law- January 6, 2021 for a ‘‘Save America Rally’’ both sides’’ and that there were ‘‘very fine people on both sides.’’60 In October 2018, we suits in state and federal courts regarding to coincide with the joint session of Con- saw the former President praise and glorify the 2020 election and they lost every case, ex- gress.47 He invited them. He incited them the actions of current Governor of Montana, cept for one minor lawsuit in Pennsylvania.36 over the course of months and on January 6. Furthermore, despite the President’s pub- Finally, he directed this Trump mob to the Greg Gianforte, after then-candidate Gianforte had body slammed and hospital- lic claims of widespread illegalities, his legal Capitol to subvert and obstruct Congress ized a journalist in May 2017.61 Mr. Gianforte team rarely attempted to allege fraud in his from conducting its constitutional obliga- 62 37 had already pled guilty to the assault. lawsuits. In fact, his own attorney, Rudy tion to certify the 2020 Presidential election. In 2020, the former President further glori- On January 6, we heard the former Presi- Giuliani, explicitly confirmed that the Cam- fied violence by indicating that ‘‘when the dent continue to spread his Big Lie at his paign was not alleging fraud during one high looting starts, the shooting starts’’ in rela- profile case in Pennsylvania by stating rally. As Attorney General Shapiro detailed, tion to the civil rights protests occurring ‘‘[t]his is not a fraud case.’’38 Despite these the former President ‘‘inflamed the crowd by after George Floyd’s murder at the hands of facts, the former President continued to repeating the same debunked allegations law enforcement in Minneapolis, Min- spread a different narrative—a Big Lie re- about voter fraud in Pennsylvania and else- nesota.63 Later, we saw the former President garding a rigged election—on Twitter. where. In his remarks, he repeated no fewer direct federal agents to forcibly move hun- United States District Court Judge Mat- than eight false statements about Penn- dreds of peaceful protestors outside of the thew Brann of the Middle District of Penn- sylvania’s elections alone.’’ 48 He further in- White House so he could pose for a photo op sylvania highlighted the absurdity of some cited the mob to ‘‘stop the steal’’ by declar- in front of St. John’s Church in Washington, of the former President’s legal arguments in ing that ‘‘we fight, we fight like hell,’’ be- D.C.64 an opinion dismissing one of the Campaign’s cause ‘‘if you don’t fight like hell you’re not In April 2020, in what turned out to be a lawsuits: going to have a country anymore.’’ 49 dress rehearsal for the January 6 insurrec- ‘‘Plaintiffs ask this Court to disenfranchise The case for incitement is about far more tion, we saw the former President tweet almost seven million voters. . . . One might than just the former President’s speech on ‘‘LIBERATE MICHIGAN!’’ after the Gov- expect that when seeking such a startling January 6. This was about a pattern of con- ernor of Michigan implemented several miti- outcome, a plaintiff would come formidably duct. It was about the former President’s gation measures to address the COVID–19 armed with compelling legal arguments and autocratic leadership and calls for political public health crisis.65 Nearly two weeks factual proof of rampant corruption, such violence throughout his Presidency. It was later, on April 30, armed protestors dressed that this Court would have no option but to about a President who once bragged: ‘‘I have in tactical gear sieged the Michigan State regrettably grant the proposed injunctive re- the tough people [supporting me], but they Capitol, waving the Confederate flag and lief despite the impact it would have on such don’t play it tough until they go to a certain wearing MAGA hats.66 Rather than condemn a large group of citizens. That has not hap- point, and then it would be very bad, very those who had seized the state capitol wav- pened. Instead, this Court has been presented bad.’’ 50 ing Confederate flags, the former President with strained legal arguments without merit I, as well as public officials in both parties, encouraged the Governor of Michigan to ne- and speculative accusations, unpled in the talk about fighting for public policy goals. gotiate with them: ‘‘The Governor of Michi- operative complaint and unsupported by evi- We fight for health care. We fight for civil gan should give a little, and put out the fire. dence. In the United States of America, this rights. We fight for equity and justice. How- These are very good people, but they are cannot justify the disenfranchisement of a ever, when the former President tells his angry. They want their lives back again, single voter, let alone all the voters of its supporters to fight, it means something dif- safely! See them, talk to them, make a 67 sixth most populated state. Our people, laws, ferent because the former President has reg- deal.’’ Just a few months following the cap- itol siege in Michigan, the FBI arrested thir- and institutions demand more.’’39 ularly condoned and encouraged violence against protestors and members of the press teen men for ‘‘plotting to storm the Michi- In the Campaign’s appeal to the United since he became a candidate in 2015. As Lead gan State capitol building, launch a civil States Court of Appeals for the Third Cir- House Manager Jamie Raskin told us during war, kidnap Governor Whitmer, transport cuit, Judge Stephanos Bibas, a judge ap- the trial: ‘‘January 6 was a culmination of her to Wisconsin, and then try and execute pointed by the former President,40 wrote for the President’s actions—not an aberration her.’’ 68 a unanimous panel affirming Judge Brann’s from them.’’51 It was the former President’s The former President’s pattern of conduct initial decision.41 Judge Bibas wrote: ‘‘Free, pattern and practice of condoning and en- is indisputable. A reasonable person cannot fair elections are the lifeblood of our democ- couraging violent action. dispute that the former President knew ex- racy. Charges of unfairness are serious. But For example, during remarks in October actly what he was doing by perpetuating the calling an election unfair does not make it 2015, the former President—then a can- ‘‘Big Lie,’’ summoning his crowd of insurrec- so. Charges require specific allegations and didate—indicated that he would be a ‘‘little tionists on January 6 and telling them: ‘‘[I]f 42 then proof. We have neither here.’’ The more violent’’ next time protestors inter- you don’t fight like hell, you’re not going to Presidential election was fair and lawful not- rupted one of his rallies.52 Video later have a country anymore.’’ 69 The former withstanding the many lies told by the showed the former President’s supporters President led his supporters to a breaking former President. forcibly dragging protestors out of the cam- point and as he had predicted in the past—it THE FORMER PRESIDENT’S PATTERN OF paign event.53 In a February 2016 rally in was ‘‘very bad, very bad.’’ 70 There is simply CONDUCT Cedar Rapids, Iowa, we saw the former Presi- no way to excuse the former President’s ac- Despite losing case after case in federal dent tell his supporters to ‘‘knock the hell’’ tions in this case. and state courts, the former President was out of protestors and then promised to pay AN ATTACK ON OUR DEMOCRACY not deterred in his efforts to spread his Big their legal fees resulting from any alterca- By encouraging his mob of insurrectionists Lie regarding a stolen election. Instead, he tion.54 to march on the Capitol and obstruct the turned his attention to pressuring federal, In March 2016, a supporter of the former Congressional certification of the 2020 elec- state and local elections officials to overturn President sucker punched a Black man being tion, the former President attacked the the election. In Georgia, he personally called escorted out of a campaign rally.55 The foundational principles of our democracy the Secretary of State, Brad Raffensperger, former President’s supporter was later re- and the peaceful transfer of power. He did and told him to ‘‘find 11,780 votes, which is corded as saying ‘‘[t]he next time we see not merely endanger another branch of gov- one more than we have because we won the him, we might have to kill him.’’ 56 Just days ernment and the Presidential line of succes- state.’’43 later, the former President defended those at sion. His actions led to at least five deaths,

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.053 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S941 injuries to nearly 140 members of law en- 7. Chris Kahn & Jason Lange, Explainer: 22. Senator Doug Mastriano forcement and untold collateral damage re- Red Mirage, Blue Mirage—Beware of Early U.S. (@SenMastriano), TWITTER (Nov. 27, 2020, 1:59 sulting from the carnage of that day.71 He Election Wins, REUTERS (Nov. 1, 2020, 6:12 PM), https://twitter.com/senmastriano/sta- endangered the lives of countless Congres- AM), https://www.reuters.com/article/us-usa- tus/1332398733401591808. See also Fact Check: sional staffers and employees, members of election-mirage-explainer-idUSKBN27H1A6; Post Mixes Pennsylvania Primary and General the press and members of Congress. He put a David Wasserman, Beware the ‘‘Blue Mirage’’ Election Data to Suggest Vote-By-Mail Irreg- target on the back of his own Vice President and the ‘‘Red Mirage’’ on Election Night, NBC ularities, REUTERS (Dec. 1, 2020, 11:38 AM), and his Vice President’s family. His actions NEWS (Nov. 3, 2020, 8:27 AM), https:// https://www.reuters.com/article/uk-fact- jeopardized our Nation’s national security by www.nbcnews.com/politics/2020–election/be- check-pa-mail-votes-primary-gene- tarnishing the United States’ reputation ware-blue-mirage-red-mirage-election-night- idUSKBN28B5NW [hereinafter ‘‘Reuters Fact abroad and emboldening violent extremists n1245925. Check’’] (debunking State Senator at home. 8. Pennsylvania Could See a ‘‘Red Mirage’’ on Mastriano’s claims). Furthermore, he has shown absolutely no Election Night. Here’s Why, 6ABC (Oct. 29, 23. Id. remorse for any of it, even going as far to 2020), https://6abc.com/pennsylvania-vote- 24. 2020 Primary Mail Ballot Counts by Coun- glorify the insurrection in the immediate count-in-red-mirage-mail-in-voting/7455361/. ty, OPENDATAPA, https://data.pa.gov/Govern- aftermath of the attack. After the Capitol See also Holly Otterbein, Democrats Return ment-Efficiency-Citizen-Engagement/2020- had been secured in the early evening of Jan- Nearly Three Times as Many Mail-In Ballots as Primary-Mail-Ballot-Counts-by-County/43wz- uary 6 and Congress was making plans to re- Republicans in Pennsylvania, POLITICO (Nov. 3, 2ph2 (last updated Aug. 3, 2020). See also Reu- sume its joint session, the former President 2020, 1:31 PM), https://www.politico.com/news/ ters Fact Check, supra note 22 (debunking turned to Twitter to release a statement. He 2020/11/03/democrats-more-mail-in-ballots- State Senator Mastriano’s claims). did not denounce the violent insurrection, pennsylvania–433951 (explaining that on Elec- 25. 2020 Presidential Election Official Return, but rather he chose to continue to spread his tion Day, more than 1.6 million of returned PA. DEP’TOFSTATE, https:// Big Lie that the election was stolen from mail-in ballots were from registered Demo- www.electionreturns.pa.gov/ (last visited him and to call the insurrectionists ‘‘great crats and 586,000 were from Republicans). Mar. 1, 2021). See also Reuters Fact Check, patriots:’’ 9. Brittany De Lea, ‘‘Red Mirage’’ Possible supra note 22 (debunking State Senator ‘‘These are the things and events that hap- in Pennsylvania as Officials Urge Voters to be Mastriano’s claims). pen when a sacred landslide election victory Patient, FOX NEWS (Nov. 1, 2020), https:// 26. Donald J. Trump (@realdonaldtrump), is so unceremoniously & viciously stripped www.foxnews.com/politics/pennsylvania-red- TWITTER (Dec. 28, 2020, 4:00 PM), https://twit- away from great patriots who have been mirage-officials-voter-patience; Jonathan ter.com/realdonaldtrump/status/ badly & unfairly treated for so long. Go Lai, How Does a Republican Lead on Election 1343663159085834248. See also TRUMP TWITTER home with love & in peace. Remember this Night and Still Lose Pennsylvania? It’s Called ARCHIVE V2, supra note 11. 27. Press Release, Pa. State Rep. Frank day forever.’’ 72 the ‘‘Blue Shift,’’ PHILA. INQUIRER (Jan. 27, Ryan et al., PA Lawmakers: Numbers Don’t Ultimately, after carefully reviewing all of 2020), https://www.inquirer.com/politics/elec- tion/pennsylvania–2020–election-blue-shift– Add Up, Certification of Presidential Results the evidence put forward in this case, I found Premature and In Error (Dec. 28, 2020), http:// that the House Managers more than exceed- 20200127.html. 10. Jeff Mason & Ernest Scheyder, Trump www.repfrankryan.com/News/18754/Latest- ed their burden of proof. The former Presi- Questions Counting Late Ballots as Biden News/PA-Lawmakers-Numbers-Don’t-Add- dent’s conduct violated his oath of office, en- Up,-Certification-of-Presidential-Results- dangered our democracy and jeopardized the Preaches Unity in Georgia, REUTERS (Oct. 27, 2020, 10:46 AM), https://www.reuters.com/arti- Premature-and-In-Error. See also Ali United States’ national security. Through Swenson, There Were Not More Votes Than this conduct, the former President com- cle/usa-election-idUSKBN27C25G. 11. Donald J. Trump (@realdonaldtrump), Voters in Pennsylvania, ASSOCIATED PRESS mitted a high crime against our Constitu- TWITTER (Nov. 4, 2020, 11:55 AM), https://twit- (Dec. 29, 2020), https://apnews.com/article/ tion. I voted to convict him in the most bi- ter.com/realdonaldtrump/status/ fact-checking-9887147615 (debunking State partisan Presidential impeachment pro- 1324032541544927233. See also TRUMP TWITTER Representative Ryan’s election claims). ceedings in our Nation’s history.73 ARCHIVE V2, https:// 28. Id. ENDNOTES www.thetrumparchive.com/ (last visited 29. Att’y Gen. Shapiro Memo, supra note 16, 1. H.R. Res. 24, 117th Cong. art. I (2020). March 1, 2021) (archiving all of the former at 6. 2. PROCEEDINGS OF THE UNITED STATES SEN- 30. Id. at 6–7 President’s tweets). 31. Donald J. Trump (@realdonaldtrump), ATE IN THE IMPEACHMENT TRIAL OF DONALD 12. Bill Whitaker, ‘‘It is Not Cheating, It is JOHN TRUMP, S. DOC. NO. 117–2, at 122—46 TWITTER (Nov. 21, 2020, 11:54 PM), https:// Democracy’’: A First-Hand Look at Ballot twitter.com/realdonaldtrump/status/ (2021) [hereinafter ‘‘IMPEACHMENT PRO- Counting in Pennsylvania, CBS NEWS: 60 MIN- 1330374020613758977. See also TRUMP TWITTER CEEDINGS II’’] (Trial Memorandum of Donald UTES (Nov. 9, 2020), https://www.cbsnews.com/ J. Trump, 45th President of the United ARCHIVE V2, supra note 11. news/pennsylvania-ballot-counting–2020–elec- 32. Donald J. Trump (@realdonaldtrump), States of America). See also Nicholas Fandos, tion–60–minutes/. Republicans Rally Against Impeachment Trial, TWITTER (Nov. 12, 2020, 11:34 AM), https:// 13. Donald J. Trump (@realdonaldtrump), twitter.com/realdonaldtrump/status/ Signaling Likely Acquittal for Trump, N.Y. TWITTER (Nov. 7, 2020, 8:20 AM), https://twit- 1326926226888544256. See also TRUMP TWITTER TIMES (Jan. 26, 2021), https:// ter.com/realdonaldtrump/status/ www.nytimes.com/2021/01/26/us/politics/repub- ARCHIVE V2, supra note 11. 1325065540390559745. See also TRUMP TWITTER 33. Donald J. Trump (@realdonaldtrump), licans-impeachment-trump.html (‘‘By a vote ARCHIVE V2, supra note 11. TWITTER (Nov. 28, 2020, 3:49 PM), https://twit- of 55–to–45, the Senate narrowly killed a Re- 14. Pennsylvania Democratic Party v. ter.com/realdonaldtrump/status/ publican effort to dismiss the proceeding as Boockvar, 238 A.3d 345, 369–72 (Pa. 2020).. 1332788716818010114. See also TRUMP TWITTER unconstitutional because Mr. Trump is no 15 Id. ARCHIVE V2, supra note 11. 16. Memorandum from Pa. Att’y Gen. Josh longer in office.’’). 34. IMPEACHMENT PROCEEDINGS II, supra 3. See Ilya Somin, Legal Scholars’ Letter on Shapiro 7 (Feb. 10, 2021), https:// note 2, at 29 (Trial Memorandum of the Impeachment of Former Officials Makes Ap- www.attorneygeneral.gov/wp-content/ United States House of Representatives). pearance in Trump’s Senate Trial, VOLOKH uploads/2021/02/Jan–6–Memo.pdf [hereinafter 35. Id. CONSPIRACY (Feb. 9, 2021, 3:10 PM), https:// ‘‘Att’y Gen. Shapiro Memo’’]. 36. Id. reason.com/volokh/2021/02/09/legal-scholars- 17 Id. 37. Tessa Berenson, Donald Trump And His letter-on-impeachment-of-former-officials- 18. Donald J. Trump (@realdonaldtrump), Lawyers Are Making Sweeping Allegations of makes-appearance-in/ (highlighting one let- TWITTER (Nov. 9, 2020, 3:17 PM), https://twit- Voter Fraud In Public. In Court, They Say No ter signed by ‘‘constitutional law scholars ter.com/realdonaldtrump/status/ Such Thing, TIME (Nov. 20, 2020, 3:13 PM), across the political spectrum,’’ including the 1325895380983275524. See also TRUMP TWITTER https://time.com/5914377/donald-trump-no-evi- co-founder of the Federalist Society). ARCHIVE V2, supra note 11. dence-fraud/. 4. IMPEACHMENT PROCEEDINGS II, supra note 19. Katelyn Polantz et al., Trump and GOP 38. Id. 2, at 48–97 (Trial Memorandum of the United Lawsuits Challenging Election Flail in Court, 39. Donald J. Trump for President, Inc. v. States House of Representatives). CNN (Nov. 6, 2020, 3:01 AM), https:// Boockvar, No. 4:20–CV–02078, 2020 WL 6821992, 5. 167 CONG. REC. S609 (daily ed. Feb. 9, www.cnn.com/2020/11/06/politics/trump-and- at *1 (M.D. Pa. Nov. 21, 2020), aff’d, 830 F. 2021). gop-lawsuits-to-challenge-election-flail-in- App’x 377 (3d Cir. 2020). 6. See Larry Buchanan et al., Lie After Lie: court/index.html. 40. Press Release, White House, Eleven Listen to How Trump Built His Alternate Re- 20. E.g., Donald J. Trump for President, Nominations Sent to the Senate Today (June ality, N.Y. TIMES (Feb. 9, 2021) (‘‘In hundreds Inc. v. Boockvar, No. 4:20–CV–02078, 2020 WL 19, 2017), https:// of public statements from Nov. 4, 2020, to 6821992, at *13 (M.D. Pa. Nov. 21, 2020), aff’d, trumpwhitehouse.archives.gov/presidential- Jan. 6, 2021, Mr. Trump repeatedly used 830 F. App’x 377 (3d Cir. 2020); 830 F. App’x 377 actions/eleven-nominations-sent-senate- phrases like ‘we won the election’ and ‘won at 388. today-3/. it by a landslide,’ and he said that the elec- 21. Donald J. Trump (@realdonaldtrump), 41. Trump for President, 830 F. App’x at 391. tion was ‘rigged’ and ‘stolen’ by the Demo- TWITTER (Nov. 28, 2020, 12:09 AM), https:// 42. Id. at 381. crats. Such assertions have been proven false twitter.com/realdonaldtrump/status/ 43. IMPEACHMENT PROCEEDINGS II, supra by the courts and elections officials across 1332552283553476608. See also TRUMP TWITTER note 2, at 32 (Trial Memorandum of the the country.’’). ARCHIVE V2, supra note 11. United States House of Representatives).

VerDate Sep 11 2014 08:38 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.054 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S942 CONGRESSIONAL RECORD — SENATE March 1, 2021 44. Id. at 40–42. Schmidt & Luke Broadwater, Officers’ Inju- President Trump’s actions on Janu- 45. U.S. CONST. amend XII. ries, Including Concussions, Show Scope of Vio- ary 6 were consistent with a years-long 46. IMPEACHMENT PROCEEDINGS II, supra lence at Capitol Riot, N.Y. TIMES (Feb. 11, effort to undermine faith in our demo- note 2, at 40–41 (Trial Memorandum of the 2021), https://www.nytimes.com/2021/02/11/us/ United States House of Representatives). politics/capitol-riot-police-officer-inju- cratic system. After spending months 47. See, e.g., Donald J. Trump ries.html (‘‘At least 138 officers—73 from the trying to delegitimize our elections (@realdonaldtrump), TWITTER (Dec. 19, 2020, Capitol Police and 65 from the Metropolitan and despite losing by more than 7 mil- 1:42 AM), https://twitter.com/ Police Department in Washington—were in- lion votes, President Trump filed doz- realdonaldtrump/status/1340185773220515840 jured. . . .’’). ens of lawsuits and called into question (‘‘Big protest in D.C. on January 6th. Be 72. Donald J. Trump (@realdonaldtrump), the election results across the country. there, will be wild!’’); Donald J. Trump TWITTER (Jan. 6, 2021, 6:01 PM), https://twit- In court after court, the President’s ter.com/realdonaldtrump/status/ (@realdonaldtrump), TWITTER (Jan. 1, 2021, claims were rejected. As Judge Bibas, 2:53 PM), https://twitter.com/ 1346954970910707712. See also TRUMP TWITTER realdonaldtrump/status/1345095714687377418 ARCHIVE V2, supra note 11. who was appointed by President (‘‘The BIG Protest Rally in Washington, 73. Maggie Astor, Impeachment Briefing: The Trump, wrote for the Third Circuit, D.C., will take place at 11.00 A.M. on January Senate Acquits Trump, N.Y. TIMES (Feb. 13, ‘‘Charges of unfairness are serious. But 6th. . . . StopTheSteal!’’). See also TRUMP 2021), https://www.nytimes.com/2021/02/13/us/ calling an election unfair does not TWITTER ARCHIVE V2, supra note 11. politics/impeachment-briefing-the-senate-ac- make it so. Charges require specific al- 48. Att’y Gen. Shapiro Memo, supra note 16, quits-trump.html. legations and then proof. We have nei- at 1. Ms. KLOBUCHAR. Mr. President, as Senators in this proceeding, we were ther here.’’ 49. IMPEACHMENT PROCEEDINGS II, supra In an attempt to delay the certifi- note 2, at 43 (Trial Memorandum of the bound by two oaths, to support and de- cation of the results, President Trump United States House of Representatives). fend the Constitution and to pursue privately pressured State election offi- 50. Alexander Mallin, Trump Warns impartial justice as we considered the cials, including asking Georgia’s Sec- ‘‘Tough’’ Supporters Could Turn Things ‘‘Very Article of Impeachment filed against Bad’’ If Provoked, ABC NEWS (Mar. 15, 2019, retary of State to ‘‘find’’ 11,780 votes, a former President Donald Trump: a 11:05 AM), https://abcnews.go.com/Politics/ number that would flip the State in his charge of incitement of insurrection. trump-warns-tough-supporters-turn-things- favor. Thankfully, election officials bad-provoked/story?id=61709959. The Framers of our Constitution gave us the tools to respond to a mo- followed the law, and by December 11, 51. 167 CONG. REC. S647 (daily ed. Feb. 11, 2020, all States had certified the results 2021). ment like this. Having lived under the 52. Fabiola Cineas, Donald Trump is the tyranny of an unaccountable King, of the election. Accelerant, VOX (Jan. 9, 2021, 11:04 AM), they were well aware of the risks of a Despite the results being final, how- https://www.vox.com/21506029/trump-violence- President willing to abuse his or her ever, President Trump convinced his tweets-racist-hate-speech. power. William Davie, one of North supporters that there was one last op- 53. Id. portunity to interrupt the peaceful 54. Id. Carolina’s representatives at the Con- stitutional Convention, argued that transfer of power: preventing the Con- 55. Id. gress from counting the electoral col- 56. Id. empowering the Congress was nec- 57. Eric Levitz, Trump on His Supporters At- essary to protect against the threat of lege votes. And they responded to his tacking Protesters: ‘‘That’s What We Need More a President who would spare ‘‘no ef- call. During the trial, we saw a video of Of,’’ N.Y. MAG. (Mar. 11, 2016), https:// forts or means whatever to get himself a rioter yelling, ‘‘We were invited by nymag.com/intelligencer/2016/03/trump- reelected.’’ the President of the United States!’’ punching-protesters-is-very-appro- Our system of checks and balances as and examples of the rioters’ social priate.html. laid out in our Constitution provides media posts telling President Trump 58. Cineas, supra note 52. that the Congress can impeach a Presi- they were there for him, including a 59. Id. photo of rioters storming the Capitol 60. 167 CONG. REC. S648 (daily ed. Feb. 11, dent for committing ‘‘Treason, Brib- 2021). ery, or other High Crimes and Mis- steps captioned, ‘‘This is me.’’ 61. Cineas, supra note 52. demeanors.’’ The phrase was meant to Law enforcement, sworn to protect 62. Merrit Kennedy, Montana’s Gianforte encompass any offenses that, as Alex- the Capitol, were repeatedly assaulted Pleads Guilty, Won’t Serve Jail Time in Assault ander Hamilton explained in Federalist defending our temple of democracy and on Journalist, NPR (June 12, 2017, 2:35 PM), 65, include an ‘‘abuse or violation of our very republic. We will never forget https://www.npr.org/sections/thetwo-way/2017/ some public trust’’ and ‘‘injuries done the shrieks of the police officer pinned 06/12/532613316/montanas-gianforte-pleads- immediately to society itself.’’ Im- in between the doors at the hands of guilty-wont-serve-jail-time-in-assault-on- the rioters, pleading for help. We will journalist. peachment is a remedy for this public 63. Cineas, supra note 52. harm. never forget Officer Harry Dunn, who 64. Id. Some of my colleagues argue that fought against the violent mob for 65. Donald J. Trump (@realdonaldtrump), the Senate could not sit as a court of hours and, after it was over, broke TWITTER (Apr. 17, 2020, 11:22 AM), https://twit- impeachment for a former President. down in tears, telling fellow officers he ter.com/realdonaldtrump/status/ But constitutional scholars from had been called the N-word numerous 1251169217531056130. See also TRUMP TWITTER across the political spectrum agree times that day. He asked: ‘‘Is this ARCHIVE V2, supra note 11. that the plain language of the Con- America?’’ Or Officer Eugene Goodman 66. 167 CONG. REC. S648 (daily ed. Feb. 11, 2021). stitution and the historical precedent who ran to take on a growing group of 67. Donald J. Trump (@realdonaldtrump), are clear that the Senate has the power the rioters by himself, diverting them TWITTER (May 1, 2020, 8:42 AM), https://twit- to hold former officers accountable for away from the Senate Chamber and al- ter.com/realdonaldtrump/status/ offenses committed while in office. The lowing Senators to move to a secure lo- 1256202305680158720. See also TRUMP TWITTER question was debated on the Senate cation. ARCHIVE V2, supra note 11. floor, we had a vote, and a bipartisan Tragically, the attack on the Capitol 68. 167 CONG. REC. S648 (daily ed. Feb. 11, majority decided that we should pro- also cost the lives of three brave offi- 2021). ceed. As Manager JAMIE RASKIN said, cers, including Officer Brian Sicknick 69. IMPEACHMENT PROCEEDINGS II, supra note 2, at 43 (Trial Memorandum of the ‘‘[t]he jurisdictional constitutional who died from injuries sustained while United States House of Representatives). issue is gone . . . We are having a trial engaging with rioters. Two other offi- 70. See supra note 50 and accompanying on the facts.’’ cers died by suicide following the text. As we were all witnesses to what hap- events of January 6: D.C. Metropolitan 71. See Caitlin Emma & Sarah Ferris, Sec- pened on January 6, the facts are clear. Police Officer Jeffrey Smith and U.S. ond Police Officer Died by Suicide Following During the trial, we saw evidence that Capitol Police Officer Howard Capitol Attack, POLITICO (Jan. 27, 2021, 12:45 was haunting and chilling. But more Liebengood. PM), https://www.politico.com/news/2021/01/27/ than that, collectively, the evidence While much of the trial rightfully fo- second-officer-suicide-following-capitol-riot- presented a clear indictment of Presi- cused on what President Trump did on 463123 (‘‘Five people died as a result of the riots, and two officers later died by suicide— dent Trump’s role in threatening not and leading up to January 6, in many a death toll that has horrified lawmakers of only the lives of those at the Capitol, ways what he did not do was even more both parties and led them to demand answers but the very lifeblood of our democ- dangerous. After he sent the mob to from Capitol security officials.’’); Michael S. racy. the Capitol, putting law enforcement

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.056 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S943 in danger and threatening the safety of suits that were rejected more than 60 the actions of an individual intent on the Vice President, President Trump times by Federal courts at all levels. retaining power by any means nec- did nothing to stop the violence. De- This insidious effort culminated at the essary. spite calls from Republican leaders ‘‘Save America’’ rally on January 6 The actions of Donald Trump before, across the country, President Trump when the former President urged his during, and after the attack on the did not even send a tweet to defend our supporters to ‘‘fight like hell’’ and di- Capitol reflected our Constitution’s democracy. Hours after the rioters first rected them to march on Congress Framers greatest fear that a president breached the Capitol, he finally re- where the counting of electoral votes would do anything to retain power con- leased a video and told the rioters: ‘‘we had begun. trary to the will of the people. They love you; you’re very special.’’ The House Managers presented a de- knew well the dangers of a despot and President Trump betrayed his oath of tailed timeline of the former Presi- the capacity of power to corrupt the office to preserve, protect, and defend dent’s actions before, during, and after Republic they had established. That is the Constitution of the United States. the election that exposed his effort to why I voted to convict the former He incited a mob to attack the Capitol subvert the Constitution and defy the President to protect our system of gov- and prevent the peaceful transfer of will of the American people. The evi- ernment from those who would use power, and for that, he should be im- dence presented against the former their office to undermine our Constitu- peached. President demonstrated that he sought tion. Senate precedent, history, and On January 6, we were all awakened to undermine and ultimately overturn tradition clearly demonstrate that a to our responsibilities as Americans the results of the 2020 election. It former President could be convicted and as Senators. I will never forget showed that when his challenges in having been impeached by the House walking to the House Chamber around court had failed and the electoral re- while still in office. 4 a.m., with shattered glass from bro- sults had been certified, he turned his The former President’s legal team ken windows strewn in the hallway, attention and all the power of the Pres- made no persuasive argument as to joined by Senator BLUNT, Vice Presi- idency to January 6. He encouraged his how his remarks on January 6 would be dent Pence, and alongside two young supporters to come to DC to ‘‘stop the considered protected speech under the women who carried the mahogany steal’’ and pressured former Vice Presi- First Amendment or why he could not boxes holding each State’s electoral dent Pence to assert power he did not be convicted as a former President. As votes. We knew we had to return to do have under the Constitution to over- House Manager RASKIN said during his our jobs, and that night, we made clear turn the election. Trump amassed a argument, ‘‘if this is not impeachable to all: Democracy will prevail. crowd of individuals waiting for his di- conduct then what is?’’ I believe it fits Thank you. rection, including armed individuals squarely within the high crimes and Mrs. SHAHEEN. Mr. President, on who had planned an attack for weeks misdemeanors identified as an eligible January 6, 2021, the heart of American in response to the President’s claims offense for impeachment in the Con- democracy was attacked by a violent that the election was stolen. stitution. Thus, I exercised my respon- mob seeking to stop the counting of The former President’s actions had sibility as a juror to vote to convict electoral votes in Congress and the deadly and destructive consequences. and ensure that the actions of the peaceful transition of power. The Insurrectionists stormed the Capitol former President would not go un- peaceful transition of power is the hall- building, desecrating the seat of Amer- checked. mark of any healthy democracy and ican Government and the physical Donald Trump betrayed his oath of the foundation of our government by manifestation of freedom for people office and he betrayed the American the people. That tradition has endured across the world. The insurrectionists people. His actions must not go unan- in our country since the ‘‘Revolution of viciously beat police officers defending swered. The oath that I took and my 1800’’ when John Adams lost his elec- our democracy, vandalized the build- allegiance to it require that I preserve, tion to Thomas Jefferson, marking the ing, and terrorized those inside. All the protect, and defend the Constitution by first peaceful change of Executive while, the mob chanted ‘‘hang Mike voting to convict a former President party in the United States. Years later, Pence,’’ ‘‘President Trump sent us’’ whose zealous pursuit of unchecked Jefferson would write about the ‘‘Revo- and ‘‘traitor, traitor, traitor.’’ When power will forever be remembered as lution of 1800’’ and say, ‘‘for that was the attack was over, hundreds of police one of the darkest days in American as real a revolution in the principles of officers and others were injured, and history. As a U.S. Senator, I will con- our government as that of 76 . . . not five people were dead, including a tinue to take a stand against actions effected indeed by the sword . . . but brave Capitol police officer who lost that violates the fundamental norms by the rational and peaceable instru- his life defending our Capitol. The at- and ideals of American democracy. ment of reform, the suffrage of the peo- tack was viewed across the world and Mr. BENNET. Mr. President, for the ple.’’ Sadly, the attack on the Capitol has undeniably tarnished America’s second time in over a year, events com- was an attempt to return to the reputation as a beacon of freedom and pelled the Senate to hold an impeach- ‘‘sword,’’ and it was incited by the democracy. ment trial for President Donald President of the United States. What was the former President’s re- Trump. By once more acquitting the Donald Trump’s actions leading up to sponse to this treasonous attack on our President despite overwhelming evi- and on January 6 demonstrated what I constitutional process? It was to repeat dence of his guilt, the Senate has again believed following his first impeach- the sinister lies that had led to the at- abdicated its responsibility to the ment: He was unfit for the Presidency tack in the first place and refer to the American people and our democratic and betrayed his oath to faithfully exe- insurrectionists as ‘‘great patriots’’ Republic. cute the office of President and pre- whom he loved. The House Managers The Founders fashioned our constitu- serve, protect, and defend the Constitu- showed that the President could have tional system to at once defy history tion. Donald Trump engaged in a stopped the attack, but he chose in- and reflect its enduring lessons. They months-long campaign of lies and mis- stead to continue his effort to obstruct understood that since the first human information about voter fraud in the the counting of the electoral votes. Ac- societies, rule of the strong had pre- 2020 election to mislead the American cording to the testimony of Congress- vailed across ages of warlords, mon- people and maintain power. This cam- woman HERRERA BEUTLER submitted to archs, emperors, and tyrants. From the paign was waged with a singular pur- evidence, the former President re- examples of ancient Greece and Rome, pose: to overturn a free and fair elec- sponded to House Minority Leader they also knew that rule by the people tion through any means necessary. It KEVIN MCCARTHY’s pleas for help by was the fragile, flickering exception. included calls to State election offi- saying, ‘‘Well, KEVIN, I guess these peo- To ignite America’s experiment in cials in Georgia where he urged them ple (the insurrectionists) are more self-government, the Founders handed to ‘‘find votes’’ that would allow him upset about the election than you are.’’ us a constitutional system unique in to win the State; wild conspiracy theo- These are not the actions of a Presi- human history, with inalienable rights ries that voting machines had been dent trying to defend the Constitution for the people, free and fair democratic rigged against him; and baseless law- and uphold his oath of office; they are elections, the rule of law, and coequal

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.016 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S944 CONGRESSIONAL RECORD — SENATE March 1, 2021 branches of government to check the President Trump’s name as they I have walked through the perimeter unbridled ambitions that risked drag- smashed doors, broke windows, and each morning, I have reflected on those ging us into tyranny. Our system was looted private offices. They repeated who kept us safe from the President’s never perfect—far from it—but over 234 the President’s lies as they cursed, anti-democratic mob—the law enforce- years, Americans have fought and sac- speared, and bludgeoned the men and ment officials, the people who main- rificed to make it more democratic, women of law enforcement who de- tain and clean the Capitol, congres- more fair, and more free. fended our democracy. sional staff. They risked life and limb, The Founders also understood that, At virtually every step of the way, not only to defend Senators and Rep- however well-crafted the Constitution our constitutional system held its resentatives but to defend basic Amer- may be, its fate would inevitably de- ground because patriotic Americans ican principles of our constitutional pend on the public officials sworn to fulfilled their obligation to our Repub- order: free elections, the peaceful tran- protect it. They could give the Senate lic. From the Capitol Police to the non- sition of power, the rule of law, and the the unique power to convict a Presi- partisan election officials, to the State separation of coequal branches of gov- dent, but they could not guarantee and Federal judges, to the Vice Presi- ernment. Senators would exercise that power dent of the United States—all refused And then I think about the State and when the moment required it. to bend to the President’s lawless de- local officials, many Republicans, who Their fears were realized on February mands. We should shudder to think held their ground under pressure from 13, 2021, when the Senate failed to con- how events would have unfolded if the President of the United States, vict President Trump, a man who de- these Americans had made a different often accompanied by threats from fied every standard of conduct and de- choice. angry citizens caught up in his ‘‘Big cency the Founders expected of public Yet somehow, confronted with these Lie’’ that an election he lost by over 7 officials. examples of individual patriotism and million votes was somehow stolen from Months before Americans cast their the overwhelming evidence of the him. These brave men and women did ballots, Donald Trump made our de- President’s impeachable offenses, 43 their duty to protect our constitu- mocracy his enemy—manufacturing Senators still voted to acquit, includ- tional system. false claim after false claim to under- ing the Senator minority leader, MITCH They are true patriots no different mine the 2020 election. He warned the MCCONNELL. than the millions of other citizens who election would be stolen or rigged, dead The minority leader refused to con- have done their part to defend the way test the case laid out by the House people would vote, and voting ma- of life we share under our Constitution. managers. He conceded that President chines were not trustworthy. He re- They join the African-American regi- Trump was ‘‘practically and morally peated these claims incessantly on so- ments who defended the Union in the responsible for provoking the events’’ cial media, at his rallies, and in inter- Civil War, the code talkers in World of January 6, committing what he view after interview on cable news. He War II, and the sons and daughters of called ‘‘a disgraceful dereliction of repeats these lies to this day. immigrants who have defended our duty.’’ Instead, the Senator hid behind When Donald Trump lost the election country from Yorktown to Normandy a strained reading of history and by over 7 million votes, he refused to to Kandahar. dodged his duty to hold President concede. Instead, he waged a months- The Constitution of the United Trump accountable on the feeble long war against the peaceful transi- States is not a machine that runs ground that the Senate lacked jurisdic- tion of power. First, he challenged the itself; it is an exercise in self-govern- tion. Through this sophist sleight of election results in court. He lost 61 out ment. American citizens—including hand, the minority leader tried to of the 62 cases, often being howled out those elected to serve them in the Sen- place one foot on the right side of his- of court by Federal judges, many ap- ate—must keep it working and always tory without taking the hard vote it pointed by the President, for failing to ensure that it becomes more demo- produce any evidence of widespread actually required. In doing so, he pro- vided cover to every Republican Sen- cratic, more fair, and more free. fraud. Former Attorney General Wil- As Americans, we should take com- ator who joined him to acquit Presi- liam Barr, one of the President’s most fort that there have been many, from dent Trump, including many who have steadfast allies, confirmed that there Frederick Douglass and Susan B. An- failed to denounce the former Presi- was no such evidence. thony to the other courageous citizens dent for anything he has done to under- So the President changed course. He who rose to moments far more difficult threw the weight of his office against mine American democracy. The Constitution grants the legisla- than our own to protect the Republic State and local officials hoping he tive branch authority to hold account- and push it closer still to our highest could coerce them into overturning able any President who would seek to ideals. their States’ lawfully conducted elec- undo our democratic system of govern- They are why the United States re- tion. He called election officials in ment. This Senate’s refusal to exercise mains, for now, the longest lasting gov- Wayne County, MI. He summoned this authority and convict Donald ernment by the people in human his- State senators from Michigan and Trump is a stain on this body. We had tory. But as the Founders understood, Pennsylvania to the White House to the responsibility to serve as a check democracy will always be vulnerable to urge the legislature to intervene. His on his anti-American actions and re- demagogues who stop at nothing to aides hounded the Governor of Arizona assert the standard of government our hold on to power. History will record to echo the President’s baseless claims Founders imagined. We chose other- the names of those who stood on the about the election. Most notoriously, wise. side of the Constitution, passing down he browbeat Georgia Secretary of State With the permission of the Senate’s to the next generation the high stand- Brad Raffensperger in a recorded phone acquittal, Donald Trump refuses to ard of citizenship our democracy de- call to ‘‘find’’ another 11,780 Trump admit his defeat and continues to mis- mands. Hopefully, a future Senate will votes and badgered the Vice President lead his supporters that the election meet that standard. to reject the certification of the elec- was stolen. In so doing, he continues to Mr. BLUMENTHAL. Mr. President, toral results. In my view, these actions perpetuate, in another form, the insur- in this impeachment trial, every Sen- alone warranted impeachment. But he rection he unleashed on January 6. ator was a juror, but also a witness and didn’t stop there. Our democracy stands today, not as a victim of the violent insurrection Don- In the end, President Trump stopped result of our actions, but those of law ald Trump incited. The case was at nothing. As Congress gathered on enforcement officials at the Capitol straightforward. Former President January 6 to certify the electoral col- and State and local officials in Michi- Trump instigated an armed riot seek- lege results, he incited a mob to invade gan, Pennsylvania, Georgia, Arizona, ing to overthrow a lawful election and the Capitol and ‘‘stop the steal.’’ They and Wisconsin—men and women who possibly even injure or assassinate scaled, as if it were an enemy rampart, didn’t surrender to President Trump’s elected officials. the platform built for President-elect tyrannical demands. I spent most of my career enforcing Biden’s inauguration and the peaceful Nearly 2 months later, the U.S. Cap- laws, including two decades as Con- transition of power. They chanted itol remains ringed with razor-wire. As necticut’s attorney general. In this

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.017 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S945 role, I learned the power and the sig- and breached the building. They killed Through video, pictures, and quotes, nificance of accountability. When a 42-year-old Capitol Hill police officer they outlined how the President of the wrongdoers enjoy impunity for their and Air Force veteran, Brian Sicknick. United States engaged in a months- actions, they and others like them are They did stop the vote counting, if long campaign to discredit the legiti- emboldened. only temporarily. They injured many. mate election results of the 2020 elec- The first time former President Members of Congress removed con- tion—a deranged campaign that began Trump was impeached by the House, he gressional pins to avoid identification before a single vote was cast. had pressured a foreign government to from the mob. Senators ran from the This unprecedented campaign of mis- corrupt the American election process, Senate Chamber. They ran for their information, pushing the ‘‘Big Lie,’’ in- extorting a vulnerable, fledgling de- lives. Rioters flew a Confederate flag, a fected a significant contingent of the mocracy to help him cheat in a Presi- symbol of hate that did not fly in the President’s supporters. They came to dential election. Capitol even at the height of the Civil Washington, DC, at Trump’s invitation This time, former President Trump’s War. and inciteful rhetoric. They followed attack on American democracy was Donald Trump watched this deadly his direction on January 6 to storm the more direct and violent. The insurrec- attack unfold with glee from the Oval Capitol and tried to stop us from car- tionists forced us to flee for our lives, Office. On national TV, he told the in- rying out our constitutional duty to to place desperate, seemingly final surrectionists that he loved them. ‘‘I certify the election for the lawful win- calls to loved ones. A Capitol police of- know you’re hurt,’’ he consoled the ri- ner of the Presidential election, Joe ficer died protecting us. oters. ‘‘We love you. You’re very spe- Biden. I have the same fear now, only great- cial.’’ He did not lift a finger to help The evidence presented by the man- er, that I felt at the close of former anyone threatened with violence, in- agers is solid and irrefutable, and the President Trump’s last impeachment. cluding his Vice President. President’s lawyers made almost no ef- By again refusing to hold former Presi- As a result of former Donald Trump’s fort to try. Given the jury they were dent Trump accountable, the Senate is incitement, an angry mob stormed the facing, I don’t blame them. Almost paving the way for another would-be Capitol with every intent to harm every Senator in this Chamber was tyrant to break laws and norms to re- elected officials and disrupt the peace- there that day. Senators OSSOFF, tain power. ful transfer of power. Not only has the WARNOCK, and PADILLA weren’t sworn We in the Senate are obligated to up- world lost Brian Sicknick, two other in until January 20. We all experienced hold our oaths to support and defend Capitol Police officers have died by sui- the unthinkable that day, and we are the Constitution against all enemies, cide. Several members of the mob were all processing it differently. The vio- foreign and domestic. Our oaths obli- killed. lent insurrection shook many of us to gate us to hold former President The Senate’s failure to convict in- the core. For some of us, the events of creases the specter of another would-be Trump to account for his incitement of that day were so chaotic that the full tyrant, as well as Donald Trump, seek- a violent attack on the U.S. Capitol, magnitude of what was happening ing again to mobilize a mob to over- the symbol of American democracy wasn’t clear at the time. throw democracy. Violent extremism Both as part of the trial evidence and around the world. through interviews and statements, we The case against Donald Trump was has been emboldened. It is a present, immediate danger. have learned more fully the measure of proven convincingly with videos and My colleagues know that former danger we faced as Donald Trump’s voice recordings so powerful that this President Trump lost the 2020 Presi- murderous mob assaulted the Capitol printed word can never capture their dential election. They know that more campus. The managers’ case and other force. The former President’s offense in than 60 courts tossed out his attempts media has given us all a better picture this case is as dangerous as it is to drum up baseless allegations of of the terror. straightforward. He spent months of voter fraud. They know that the direc- There are stories of bravery, like his Presidency telling and retelling the tor of Cybersecurity and Infrastructure that of Officer Eugene Goodman and ‘‘Big Lie.’’ The lie that no matter how Security Agency, a lifelong Repub- his U.S. Capitol Police colleagues. the American people voted at the bal- lican, certified the election was safe The footage of Officer Goodman lot box, he was the only legitimate and secure. And they know that former misdirecting the mob marauding winner of the 2020 Presidential elec- President Trump incited the insurrec- through these halls is remarkable. Put tion. That the election was stolen from tionists to attack the Capitol on Janu- yourself in his shoes. How many of us him, that anyone who disagrees is un- ary 6. would have acted as quickly in the face American, a traitor. Democracy is not our default state of of a rushing wave of hate? He has As Manager LIEU explained at trial, being. Democracy thrives only so long rightly been commended for his deci- at a certain point in his efforts to un- as the institutions that support it sive, nearly superhuman response. All dermine the 2020 election, ‘‘Trump ran thrive. And democratic institutions across the complex, his colleagues bat- out of non-violent options to retain will only thrive and persist through tled with insurrectionists who as- power.’’ hard work, active work, dedicated saulted them with bats, bear spray, and Donald Trump encouraged, work of our elected officials. For 4 other weapons in close quarters—these emboldened, and even helped build a years, former President Trump con- were scenes from a war zone, not the mob of violent extremists that he in- tinuously attacked our basic norms heart of the U.S. Government. While vited to Washington, DC, and incited to and institutions of democracy. For 4 their bravery is commendable, Capitol storm the Capitol. While some Mem- years, he normalized chaos. Our job Police and the other law enforcement bers of Congress were serving the now—Republicans, Democrats, Inde- agencies that eventually assisted to re- former President in seeking to subvert pendents—is to restore. We must dedi- store order should never have been in American democracy by objecting to cate ourselves to restoring the rule of that position. But for the President of vote counting, Trump was imploring law, the protections of rights, and the the United States sending a mob of vio- the mob to do the same. He told sup- integrity of institutions. And that task lent insurrectionists to the Capitol, porters to ‘‘never give up’’ on the ‘‘Big starts with accountability for all those they would not have. Lie.’’ He told them that ‘‘this election who perpetrated the damage. There are other chilling stories that was stolen from you, from me, from the Ms. HIRONO. Mr. President, I rise should make every American’s heart country.’’ He said, ‘‘if you don’t fight, today regarding the second impeach- race. The audio of the Speaker’s staff you are not going to have a country ment of Donald Trump. barricaded in their office, whispering anymore.’’ He told the insurrectionists The House managers made their case. into the phone, voices trembling, beg- to go to the Capitol, and he even lied to Based on the evidence they presented ging for help. The silent Capitol secu- them that he would be going with and the events we all experienced, Don- rity footage showing just how close the them. ald Trump should be convicted and pro- Vice President, Senators, Representa- The resulting violence, clearly fore- hibited for holding office ever again for tives, and staff came to harm. The vid- seeable, was horrifying. They marched inciting a violent insurrection at the eos of chanting, gleeful, rioters dem- to the Capitol. Rioters broke windows U.S. Capitol on January 6. onstrating their horrifying fealty to

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G01MR6.015 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S946 CONGRESSIONAL RECORD — SENATE March 1, 2021 Donald Trump’s lies as they broke him to push the boundaries of our po- I voted to convict and disqualify down doors and ransacked offices and litical discourse further. former President Donald Trump be- the Senate floor. The story that my Republicans have another chance to cause he violated his oath of office and friend Senator MURRAY has told of stand up for our democracy and against because our future leaders must know being trapped in her office with her authoritarianism. They have a chance that such abuses of power will not be husband. The mob pounding on the to accept the reality that has been tolerated in a free and democratic soci- door while he tried to hold it shut with clearly outlined for them in video, ety. I will continue to call out these his foot. The absolute terror she must audio, and their own experiences. They abuses and to keep those in power ac- have felt hoping that the door was can make a strong statement that po- countable. locked and that help would come litical violence is unacceptable in the Mr. MARKEY. Mr. President, the es- quickly. They were inches away. The United States. They can—and should— sence of any American President’s job rest of us there that day were at least vote to convict Donald Trump and bar is set forth in the oath he or she feet away. I am sure that we all called, him from ever holding office again. swears—an oath that the Founders con- texted, and thought of loved ones. Try- This is the real first, meaningful step sidered so fundamental that they put it ing to reassure them but not actually that we can take to achieve the unity in the Constitution. And that job is to knowing if that was true. Feeling from that we all claim to want. preserve, protect, and defend the Con- far away their helpless anguish for us I will vote to convict. I hope that stitution of the United States. and the utter terror and disbelief that this time, more than one of them will A President who violates that oath something like this could happen in be brave enough to lead by standing up has committed an impeachable offense. our country. To the U.S. Capitol, of all and doing what is right. That is a truth. There can be no rea- places. Ms. WARREN. Mr. President, I would sonable dispute that a President who The U.S. Capitol is the heart of our like to enter a statement into the fails at this basic responsibility is unfit democratic system of government. record. to remain in office and cannot and While we may disagree vociferously, The President swears an oath to should not be permitted to hold that debate passionately, and represent peo- faithfully execute the Office of the office again. ple and communities with deeply diver- Presidency and to ‘‘preserve, protect, Not only did Donald Trump fail to gent views, Congress exists to find and defend the Constitution of the uphold his oath, he took steps intended common ground without resorting to United States.’’ At the very core of to violate it. It wasn’t mere negligence. violence. This simple fact—that as a that oath is a commitment to democ- It wasn’t even recklessness. Donald country we solve our problems through racy, to government of the people, for Trump engaged in an active, willful, democratic institutions and debate—is the people, and by the people. intentional attack on our Constitution a source of our strength and global President Trump tested that commit- and our democracy. leadership. I have strong disagreements ment. Americans endured a pandemic Donald Trump incited to violence with a number of my colleagues. I while casting their votes in the Novem- and riot a mob that attacked the U.S. know many of them disagree with me. ber 2020 election. Following that elec- Capitol and our government. That is a But each day we come to the Senate tion, the outgoing President baselessly high crime and misdemeanor. We all floor and voice those disagreements sowed doubt about its legitimacy and saw and heard the evidence during the without fear for our safety. On January refused to commit to a peaceful transi- trial. The video. The audio. The tweets. 6, that basic level of understanding— tion of power. In the days leading up to The statements. The affidavits. the very thing that separates our coun- January 6, 2021, President Trump agi- Months before the election, Donald try from so many others—was shat- tated his most dangerous supporters, Trump laid the groundwork for this in- tered by the assault on the Capitol. who had already shown a propensity surrection, arguing he would only lose And worst of all, that insurrection was for violence, and called on them to the election if there were fraud. After incited by a sitting President of the interfere with Congress’ duty to for- he lost, he repeated over and over United States. mally count the votes of the electoral again the ‘‘Big Lie’’ that the election In some respects, it is difficult to college. Donald Trump wanted a riot to was stolen. He agitated his supporters know how best to move forward from take place on January 6. We know be- who falsely and wrongly believed that that awful day. We came back. We did cause he said so. And when police offi- the election was rigged. our jobs. And we are still here doing cers defending the Capitol were over- Trump beckoned a mob to Wash- what our constituents sent us here to run by his mob, he did nothing. Democ- ington for a rally when he knew the do. The Capitol may have been changed racy is at its most fragile at the mo- Congress would be counting the elec- indelibly for many of us. ment of transition, and that fragility is toral ballots. Trump’s people knew Again, to turn to the words of my exactly what the former President from law enforcement bulletins and in- friend Senator MURRAY the bipartisan sought to exploit. telligence that the mob was armed and actions shown in Congress in the wake During President Trump’s second im- dangerous. Yet, he riled them up and of the September 11 attacks helped to peachment trial, his defense tried to then sent them up Pennsylvania Ave- restore some semblance of safety and paint for Americans a picture of a nue to the Capitol. That rally became security. That common response is ab- President who called for peaceful pro- an orgy of violence and hate. Mayhem sent today. test and who bears no responsibility for and destruction ensued, all in Donald To begin to heal, we need account- the January 6 assault on the People’s Trump’s pursuit of staying in office be- ability. We need to live up to our con- House. But the President’s actions yond his term. Of ignoring our Con- stitutional oaths and the sacred duty took place before our eyes. His conduct stitution. Of preventing a peaceful our constituents bestowed on us when before, during, and immediately after transfer of power. Of promulgating the we were elected: to uphold the law, to the assault on the Capitol is well Big Lie. Donald Trump did not express stand for their values, and, when nec- known to the American public. He is horror or outrage at the scenes playing essary, to stand for our own. We can uniquely responsible for the events of out live on television. He did not only start to heal when we have ac- January 6. quickly and decisively urge his sup- countability and justice for what hap- Americans spoke clearly and force- porters to stop. He did not immediately pened. To achieve this, we need those fully in November when they elected a call out the National Guard. He did not who are in leadership positions to lead. new President. Donald Trump’s at- show any concern for the law enforce- Republicans failed to lead last year tempt to cling to power through lies ment officers being beaten, maimed, when they voted to acquit Donald and violence is just what the Framers and even killed at the Capitol. He re- Trump for his corrupt actions in deal- of our Constitution feared. But part of portedly delighted in what was hap- ing with Ukraine by conditioning mili- the brilliance of our Constitution’s sep- pening, unable to comprehend why oth- tary assistance on receiving political aration of powers is that we, the Con- ers were not excited about it like he dirt on Joe Biden. Their failure to lead, gress, have the power and obligation to was. And he has never shown any re- to hold Trump accountable, and frank- defend against such gross misconduct morse or an ounce of contrition or ly to constrain his mania, emboldened through impeachment. taken any responsibility. Instead, he

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.021 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S947 has maintained that he acted perfectly tweeting words of encouragement to some of whom lost their lives and were appropriately. the rioters. There was a siege actually seriously injured—who carried out The Senate of the United States sat happening in the Capitol. There was no their patriotic duty to protect mem- as an Impeachment Court, with Demo- longer rhetorical fighting; there was bers of Congress that day. crats and Republicans serving as ju- actual fighting. On television. Live for However horrible the violence was— rors. But the vast majority of those everyone to see. and how angry I have been about it—I Republicans were more interested in The House managers proved their believe that it is imperative, for the fu- fealty to Donald Trump than loyalty to case with facts and evidence. Donald ture of our democracy, to examine our country. They were more con- Trump incited and relished in an effort closely the totality of the precedents, cerned about Trump’s base than basic to violently overthrow our govern- impeachment proceedings, and evi- justice. They were willing to ignore the ment. He invited. He incited. He de- dence, and to be as dispassionate and truth to embrace the Big Lie. lighted. impartial as possible in this case. I had hoped the House managers Anyone who is opposed to abolishing That is why I cast my vote, on Feb- would call witnesses. Clearly, there the filibuster need only look at the ruary 13, 2021, to acquit former Presi- were individuals with direct knowledge vote to acquit and see how Republicans dent Trump on the single Article of Im- of Trump’s state of mind during the in- willfully blinded themselves to truth peachment, ‘‘incitement of insurrec- surrection, the danger at the Capitol as and facts in fealty to Trump and their tion.’’ it unfolded, and his support of it. But party. Their votes to acquit once again The primary purpose of impeachment even before we debated potential wit- show our hurdles to progress: Repub- in our constitutional system is to re- nesses, Republicans had made up their lican political calculations and their move an official from office—to, ac- minds. They were unmoving in their fe- dereliction to truth and justice. cording to Justice Story, divest an offi- alty to Trump. Republicans were will- The final tally on the vote to acquit cial ‘‘of his political capacity.’’ The fully blind to the truth and the facts of does nothing to reassure me that Re- House’s single Article of Impeachment the case. publicans are willing to work together emphasized this need to remove Presi- The rioters wanted to kill Vice Presi- and transcend party politics. Repub- dent Trump from office. Regarding this dent Pence and House Speaker PELOSI. licans had the opportunity to recognize case before the Senate, President Don- They told us so. We know that the west that faith in the Constitution is a faith ald Trump had already been removed side of the Capitol was breached around that we all share. Instead, they ignored from office by a vote of the American 2 p.m. and that the rioters had overrun the Constitution for a Big Lie. How can people this past November. Thus, pur- the Capitol. We know that the mob was we expect them to work in good faith suing impeachment in this case creates approaching the Senate floor when our with Democrats to respond to the big a troubling precedent in which former session was abruptly recessed at 2:13 challenges facing our Nation when they officials—private citizens—can face im- p.m. We know that Vice President refuse to accept undeniable facts? peachment and conviction. PENCE was whisked off the Senate floor The only reasonable conclusion based Therefore, the fundamental issue in and that he was in mortal danger, as on the evidence presented at the trial this impeachment trial is not removal were all Members of Congress in their was that Donald Trump committed an from office but whether the Senate has Chambers doing their constitutional impeachable offense, should have been or should accept jurisdiction to try, duty. We know that all this was play- convicted, and should have been barred convict, and disqualify Donald Trump, ing out in real time on television and from holding future office. Republicans a private citizen, from any future that Donald Trump had to know it was refused to accept or acknowledge that. elected office based on the House’s sin- happening. And yet, about 10 minutes I fear that with their votes to acquit, gle article of impeachment—incite- later, at 2:24 p.m., knowing all this, they have sown the seeds of another ment of insurrection. Donald Trump tweeted an attack at his violent attack on our Constitution and The House and Senate have never be- own Vice President. ‘‘Mike Pence did our democracy. fore claimed or exercised such im- not have the courage to do what should Mr. SULLIVAN. Mr. President, the peachment jurisdiction over a former have been done to protect our Country impeachment trial of former President President. I do not believe that the and our Constitution.’’ And we know Donald Trump marked the third time Constitution empowers the Senate to that around 2:26 p.m., Donald Trump in 1 year that the Senate has had to have such impeachment jurisdiction. In called Senator TUBERVILLE not to as- confront significant constitutional and his renowned ‘‘Commentaries on the certain what was happening, not ask institutional questions with con- Constitution,’’ Justice Story comes to how the Vice President was or to offer sequences that will undoubtedly rever- the same conclusion, although to be aid and assistance against the insurrec- berate into the future. As always, I am fair, there are others who do not. I be- tion. No, Trump called to ask Senator guided by the Constitution, historical lieve that the precedents set in claim- TUBERVILLE to delay the certification. precedent, and ‘‘a deep responsibility ing that the Senate can try former It is clear whose side Donald Trump to future times,’’ as stated by Supreme Presidents who are private citizens was on. Court Justice Joseph Story, our Na- have the very real potential to do sig- There is no First Amendment defense tion’s first great constitutional schol- nificant long-term damage to our con- to what Donald Trump did. The First ar, two centuries ago. This is what has stitutional order, individual liberties, Amendment has no application in an informed me during last year’s im- and the proper functioning of our Re- impeachment proceeding, which does peachment, the electorial college cer- public in a way that we will come to not seek to punish unlawful speech, but tification in January, and now another regret as a nation. to protect the Nation from a President impeachment. Additionally in this case, the House who has violated his oath of office. This has been a disheartening episode undertook a ‘‘snap impeachment’’ in 48 But even if the First Amendment ap- for a divided America. Make no mis- hours with no hearings, no witnesses, plied, even if we bought Trump’s law- take: I condemn the horrific violence no record, and no defenses presented. yers’ bogus claims that the First that engulfed the Capitol on January 6. When asked about this during the Sen- Amendment can be a defense, the argu- All those who undertook violence on ate trial, the House managers stated ment utterly fails. Trump’s lawyers re- that day should be prosecuted to the that constitutional due process protec- lied on the Supreme Court’s decision in fullest extent of the law. I also con- tions for a defendant in an impeach- Brandenburg v. Ohio, but Brandenburg demn former President Trump’s poor ment are ‘‘discretionary’’ or, in other explained that the First Amendment judgment in calling a rally on that words, not required. This troubling protects advocacy, ‘‘except where such day, and his actions and inactions declaration is now a precedent in the advocacy is directed to inciting immi- when it turned into a riot. His blatant House. Combining this ‘‘no Due Proc- nent lawless action and is likely to in- disregard for his own Vice President, ess/snap impeachment’’ precedent with cite or produce such action.’’ Once the Mike Pence, who was fulfilling his con- the additional power of the Senate to Capitol was breached, the lawless ac- stitutional duty at the Capitol, infuri- try former officials, who are now pri- tion was no longer imminent, it was ates me. I will never forget the brave vate citizens, amounts to a massive ex- actual. And Donald Trump was still men and women of law enforcement— pansion of Congress’ impeachment

VerDate Sep 11 2014 08:38 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G01MR6.012 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S948 CONGRESSIONAL RECORD — SENATE March 1, 2021 power never contemplated by our and that this dispiriting chapter in ald Trump released two campaign ads Founding Fathers. The temptation to American history won’t deter them claiming the election was a ‘‘fraud’’ use such power as a regular tool of par- from speaking out in defense of their and instructing his supporters to ‘‘stop tisan warfare in the future will be beliefs. the steal.’’ His campaign paid $50 mil- great and has the potential to incapaci- This has been a difficult time for our lion dollars for the ads and ran them tate our government. Nation. My vote on February 13 was up to and until January 5, 2021. Those in favor of expanding impeach- not in defense of the former President’s Those who heeded that well-funded ment jurisdiction to include the former conduct on January 6 with which I call understood what President Trump President primarily point to the poten- fully disagreed, particularly his twitter was asking. They didn’t just come with tial for Presidents or other officials to attacks on Vice President Pence, as protest signs; they came with hand- commit impeachable acts near the end the Vice President undertook his con- cuffs and rifles, bear spray and tactical of their term or shortly before resign- stitutional duties to preside over the gear, Molotov cocktails and crossbows, ing. The House managers called this a electoral college vote at the Capitol. and walkie talkies for communication. ‘‘January exception’’ to impeachment. At the end of the day, my obligation On January 6, at a rally just before They argued that this would allow such is to rise above the passions of the mo- noon, Donald Trump asked the large individuals to escape culpability and ment and to carefully consider the de- crowd assembled before him to march would frustrate the purpose of im- cisions we make today and the rami- on the Capitol. He asked them to fight peachment to hold public officials ac- fications they will have for our coun- ‘‘like hell’’ because ‘‘if you don’t fight countable. This is a legitimate con- try’s future. I believe that my vote to like hell, you’re not going to have a cern. However, there are other rem- acquit fulfills that obligation. I want country anymore.’’ edies available to punish such conduct Alaskans and Americans to know that Despite knowing that there had been of a former President through the judi- throughout all of this, my guiding concerns for months about potential cial system, if warranted. The Con- light has been both fidelity to Alaska violence surrounding the election, Don- stitution explicitly provides that and to our Constitution. ald Trump urged those at the rally 20 former officials can be subject to Ms. CORTEZ MASTO. Mr. President, times to ‘‘fight.’’ He also called on criminal prosecution for their actions during this impeachment trial, I have them to ‘‘stop the steal,’’ declaring while in office, regardless of impeach- adhered to the oath I swore at the ‘‘you’ll never take back our country ment. Moreover, even if such conduct trial’s outset to ‘‘do impartial justice,’’ with weakness.’’ eludes judicial review, the American and I have listened with care to the Inspired by President Trump’s words, people are well equipped to judge polit- facts and law presented to me as a his supporters began streaming toward ical conduct and pass their judgement juror. the Capitol, where they eventually upon it. For that reason, and as I em- These facts compel me to conclude overwhelmed its defenses and threat- phasized last year following the pre- that Donald Trump is guilty of inciting ened those inside. Those in danger in- vious impeachment trial, I believe it an insurrection against our Republic. cluded the Vice President, the Speaker can be left to the wise judgement of the As the evidence presented by the of the House, Members of Congress, American people on whether or not the House impeachment managers has countless staffers, and thousands of former President should be disqualified made clear, Donald Trump used the members of law enforcement. from future office. powers at his disposal to ensure he And when Donald Trump saw that his Even if this Senate was empowered could keep his grip on the Presidency supporters were battling U.S. Capitol by the Constitution to hear this case, I even though he lost the election. Police officers and DC police, he said do not believe that the House managers As the sitting President and a can- nothing to stop them for more than 2 met their burden in proving the crit- didate for reelection, Donald Trump hours, even when he knew that Vice ical issue at trial—whether the former cast doubt on the results of that elec- President Pence, one of his most loyal President intended there to be violence tion for months, arguing that the only political allies, was in danger. More, he at the Capitol as a result of his speech way he would lose at the polls was by tweeted further criticism of Mr. Pence at the Ellipse on January 6. Further- fraud. Then, after losing to Joe Biden as the Vice President’s Secret Service more, the House managers claimed, in by a margin of 7 million votes in a free detail was laboring to whisk Mr. Pence arguing their incitement charge, that and fair election, Donald Trump to safety. First Amendment political speeth pro- claimed it was a ‘‘fraudulent election.’’ Donald Trump was willing to do al- tections do not apply to elected offi- As our system of government allows, most anything to convince Vice Presi- cials in impeachment proceedings. A Donald Trump turned to State and dent Pence to violate his duty to the conviction based on this breathtaking Federal courts to hear his allegations Constitution, and so the Vice President precedent has the potential to signifi- of widespread fraud. Some of those had a target on his back. cantly further undermine core con- courts were presided over by judges In other words, those who came to stitutional protections for Americans who Donald Trump himself had se- Washington at former President and their ability to undertake political lected. Again and again, those courts Trump’s request and attacked the seat speech in the future. rejected the allegations of fraud as of our democracy were trying to do ex- Finally, laced throughout the House baseless. actly what they believed Donald managers’ presentations were subtle Even Trump’s own Attorney General, Trump asked them to: prevent the cer- and not-sosubtle indictments, not just William Barr, publicly declared that he tification of Joe Biden as President- against the Capitol rioters who fully had found no evidence of fraud that elect. deserve condemnation but against all could have ‘‘effected a different out- That is why they frankly admitted, supporters of the former President, come in the election.’’ both during the Capitol riot and later which of course includes many Alas- Faced with defeat in the courts, Mr. to law enforcement, that they were at kans. This sentiment is one that can- Trump nevertheless pressured officials the Capitol because ‘‘[o]ur president not and should not be allowed to be at every level of both State and Fed- wants us here.’’ perpetuated. In my view, this will not eral government, including his own In response to all these facts, Donald bring about the kind of unity that our Vice President, Mike Pence, to change Trump argues that the Constitution Nation needs now. In contrast to what the election results. does not permit ex-Presidents to be some of the House managers implied at When those efforts failed, he encour- tried for impeachment and that the this trial, the vast majority of Ameri- aged his supporters to come to Wash- First Amendment protects his right to cans and Alaskans who had supported ington, DC, on January 6, the day when encourage an attack on our democracy. President Trump were appalled by the Congress would certify the electoral These arguments are lawyerly fig violence on January 6. Such Alaskans college votes for Joe Biden. He claimed leaves. Mr. Trump relies on them so supported this President because of his that the election was stolen and heavily because his own behavior is in- polices that helped our State. I will tweeted ‘‘We have just begun to fight,’’ defensible. continue to work to make sure that promising that on January 6, it would The vast majority of legal scholars these Alaskans’ voices are not silenced be ‘‘wild.’’ On December 11, 2020, Don- agree that the First Amendment does

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.019 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE March 1, 2021 CONGRESSIONAL RECORD — SENATE S949 not apply in this instance because the justice, ensure domestic tranquility essary to form a strong republic. Hav- incitement of an insurrection is not . . . do ordain and establish this Con- ing just shed the bonds of the British protected speech under the Constitu- stitution.’’ America cannot be tranquil Monarchy and its infringements upon tion. They also believe the Constitu- unless its leaders forswear violence and the liberties the delegates so des- tion allows for the impeachment and stand up for democracy. That is why I perately wanted to protect, there was trial of public officials after they leave voted to convict Donald J. Trump of much skepticism toward this idea. In office, particularly when, as in this high crimes and misdemeanors against order to abate these concerns, the Con- case, the public official was impeached the American people. stitution’s Framers provided for a by the House of Representatives while Unfortunately for our country, many means of removing an Executive, a still in office. of my colleagues did not agree. I know Presidential impeachment. Otherwise, all an office-holder would this is difficult news for many Amer- After much debate over particular have to do to protect him or herself ican patriots, who, just as I do, love wording, article II, section 4 of the from punishment would be to resign and cherish our democratic traditions, Constitution adopted by the delegates just before impeachment. The Senate the rule of law, and the centuries-old reads: ‘‘The President, Vice President has implicitly or explicitly agreed with tradition of the peaceful transfer of and all civil Officers of the United this view three times in our Nation’s power. To that majority of Americans, States, shall be removed from Office on history; first, in the very first im- I want to say: We must not lose faith in Impeachment for, and Conviction of, peachment trial against former Sen- our system of government. We must Treason, Bribery, or other high Crimes ator William Blount of Tennessee, held work all the more diligently to protect and Misdemeanors.’’ during the lifetime of the Founders; it. This is the fundamental impeach- second, in 1876 when Secretary of War Right after Supreme Court decided ment provision contained in the Con- William Belknap resigned just hours the Dred Scott case—the most odious stitution and provides the primary evi- before the House voted to impeach him case in our long legal history—the dence as to why the lone Article passed for bribery and corruption; and finally, great abolitionist and orator Frederick out of the House as well as the subse- in this impeachment trial of Donald Douglass gave a speech. I turn to this quent trial in the Senate, was uncon- Trump, when a bipartisan majority of speech whenever I am in need of hope. stitutional. As this section shows, im- Precisely when slavery seemed to the Senate agreed that this trial could peachment refers to ‘‘the President’’ have won a decisive victory, Frederick proceed in spite of the defendant’s ob- and other officials, and it provides that Douglass, himself a former slave, said jections to its constitutionality. that they shall be ‘‘removed from Of- in that speech that his ‘‘hopes were My colleagues understand that the fice.’’ Donald J. Trump is no longer the never brighter than now.’’ He believed Constitution gives Congress the power President of the United States and that the world would see what a ‘‘scan- to impeach, convict, and disqualify a therefore can no longer be removed dalous tissue of lies’’ the Supreme former officeholder. This is true be- from office. He is a private citizen. cause otherwise, the country would be Court’s decision in Dred Scott was. And he was right. History holds that Further evidence that Donald Trump vulnerable to a President of either is no longer the President and there- party who could flout any law but re- Court case as one of the most shameful in our history, and I believe it will fore that this trial is unconstitutional sign to be insulated from consequences. can be found within the Senate’s im- As the House managers have argued, likewise condemn Donald Trump’s in- peachment authority: Article 1, section if anything is impeachable, it is a citement of the Capitol attack. So 3 provides that ‘‘When the President of President inciting his followers to vio- today I remain hopeful because the the United States is tried, the Chief lence to overturn a legitimate election. people of Nevada and all Americans Our Founding Fathers held democ- have been able to see the truth for Justice shall preside.’’ Chief Justice racy sacred. They feared a demagogue, themselves, and they understand that John Roberts did not preside over the a leader who would pervert the Con- Donald J. Trump must never again be impeachment trial, and instead that stitution in order to keep power, and trusted to protect our sacred democ- role was filled by the senior Senator ATRICK LEAHY. In a they sought to protect the new Repub- racy. from Vermont, P statement, Senator LEAHY himself lic from such a president. Ms. SMITH. Mr. President, the facts Donald Trump is the person the and the evidence were overwhelming: stated that the President pro tempore Framers feared. He poses an existential Former President Donald Trump lied of the Senate ‘‘has historically pre- threat to American democracy. He has for months to his supporters, sum- sided over Senate impeachment trials shown himself willing to use almost moned them to Washington, and in- of non-presidents.’’ These facts dem- every measure at his disposal to gain cited a violent insurrection against our onstrate that Chief Justice Roberts de- and retain power, even if it means government and our democracy. I clined to preside over the trial because overturning a free and fair election voted to convict because no reasonable he did not believe that he had a con- through violence. person can listen to all the evidence stitutional role and that Senator We can have no doubt what our presented and believe otherwise. LEAHY acknowledged that Donald Founding Fathers would have made of Mr. MARSHALL. Mr. President, I Trump was no longer an officeholder. him: He was exactly the kind of person would like to submit this statement for Finally, article 1, section 3 provides, they wanted to prevent from holding the record regarding the impeachment ‘‘Judgment in Cases of Impeachment and wielding power. trial of former President Donald shall not extend further than to re- We have seen over the course of this Trump. The statement reflects my moval from Office, and disqualification election the profound risks of trifling thoughts on this complicated constitu- to hold and enjoy any Office of honor.’’ with our democracy and undermining tional matter and its implications for This reiterates that removal from of- the legitimacy of our elections. We future impeachments. fice must occur before that person is cannot let future candidates of either In 1787, the Articles of Confederation disqualified from holding an office party believe that in America, the way were failing, and our young Nation was again. If the Founders had intended to win is to lie and cheat, to whip a struggling to address the many chal- that disqualification be a separate crowd into a frenzy, to turn it on pub- lenges it was being confronted with in judgment, then the Constitution would lic servants and law enforcement alike. its infancy. A collection of independent have clearly stated ‘‘or’’ rather than We have to reestablish in our politics States, the newly formed country expe- ‘‘and.’’ The Constitution does not give our absolute commitment to the idea rienced much difficulty with the regu- the Senate the authority to try a pri- that we resolve our disputes in our lation of trade and commerce, foreign vate citizen or to remove him from an courts and in Congress, not by wielding affairs, and other basic domestic civil office that he no longer occupies. weapons against lawmakers. issues. With calls for disunion multi- It also does not give the Senate the Our Founding Fathers made clear in plying, delegates to the Constitutional authority to disqualify him from an of- the very preamble to the Constitution Convention met to deliberate and forge fice that he was not removed from. that ‘‘We the people . . . in order to a new government and with it an Exec- I voted to acquit former President form a more perfect union, establish utive to help centralize the powers nec- Donald Trump of the charge of inciting

VerDate Sep 11 2014 07:42 Mar 02, 2021 Jkt 019060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\A01MR6.029 S01MRPT1 ctelli on DSK11ZRN23PROD with SENATE S950 CONGRESSIONAL RECORD — SENATE March 1, 2021 an insurrection for the January 6 Cap- 3. Subcommittee subpoenas. The Chair of land Security and Governmental Affairs and itol riot because of these basic con- the Subcommittee, with the approval of the the Standing Rules of the Senate. cerns surrounding the constitu- Ranking Minority Member of the Sub- (2) Quorums. For public or executive ses- tionality of the proceeding. The im- committee, is authorized to subpoena the at- sions, one Member of the Subcommittee tendance of witnesses or the production of shall constitute a quorum for the admin- peachment of a private citizen, driven memoranda, documents, records, or any istering of oaths and the taking of testimony by political obsession, sets a very dan- other materials at a hearing, provided that in any given case or subject matter. One- gerous precedent. What would prevent the Chair may subpoena attendance or pro- third of the Members of the Subcommittee a Republican-controlled Congress from duction without the approval of the Ranking shall constitute a quorum for the trans- impeaching former President Barack Minority Member where the Chair or a staff action of business other than the admin- Obama or Secretary of State Hillary officer designated by the Chair has not re- istering of oaths and the taking of testi- Clinton? What about historical Presi- ceived notification from the Ranking Minor- mony, provided that one Member of the mi- dents such as George Washington, ity Member or a staff officer designated by nority is present. Proxies shall not be con- the Chair of disapproval of the subpoena sidered for the establishment of a quorum. whose pivotal legacy no longer appears within 2 calendar days, excluding Saturdays (3) Taking Testimony. In any hearings con- to meet the moral standards of con- and Sundays and legal holidays in which the ducted by the Subcommittee, the Chair or temporary times? While the political Senate is not in session, of being notified of the Chair’s designee may swear in each wit- retaliation against the President is the subpoena. If a subpoena is disapproved by ness prior to their testimony. certain to continue now that he is out the Ranking Minority Member as provided (4) Subcommittee Subpoenas. Subpoenas of office, I am proud to have been a herein, the subpoena may be authorized by for witnesses, as well as documents and part of the minority in the Senate to vote of the Members of the Subcommittee. records, may be authorized and issued by the stand up to this type of unconstitu- Immediately upon authorization of the Chair, or any other Member of the Sub- issuance of a subpoena under these rules, a committee designated by him or her, with tional behavior and to acquit Donald written notice of intent to issue the sub- the approval of the Ranking Minority Mem- Trump. poena shall be provided to the Chair and ber of the Subcommittee, provided that the f Ranking Minority Member of the full Com- Chair may subpoena attendance or produc- mittee on Homeland Security and Govern- tion without the approval of the Ranking SENATE SUBCOMMITTEE ON ment Affairs, or staff officers designated by Minority Member where the Chair or a staff EMERGING THREATS AND the Chair and Ranking Minority Member for officer designated by him or her has not re- SPENDING OVERSIGHT RULES OF the full Committee, by the Subcommittee ceived notification from the Ranking Minor- PROCEDURE Chair or a staff officer designated by the ity Member or a staff officer designated by Mr. PETERS. Mr. President, Senate Chair, and no subpoena shall be issued for at him or her of disapproval of the subpoena Standing Rule XXVI requires each least 2 calendar days, excluding Saturdays within two calendar days excluding Satur- and Sundays, from delivery to the appro- days and Sundays, of being notified of the committee to adopt rules to govern the priate offices, unless the Chair and Ranking subpoena. If the subpoena is disapproved by procedure of the committee and to pub- Minority Member of the full Committee on the Ranking Minority Member as provided lish those rules in the CONGRESSIONAL Homeland Security and Government Affairs herein, the subpoena may be authorized by a RECORD not later than March 1 of the waive the 2–calendar day waiting period or vote of the Members of the Subcommittee. first year of each Congress. On Feb- unless the Subcommittee Chair certifies in A written notice of intent to issue a sub- ruary 26, 2021, a majority of the mem- writing to the Chair and Ranking Minority poena shall be provided to the Chair and bers of the Committee on Homeland Member of the full Committee that, in the Ranking Minority Member of the full Com- Security and Governmental Affairs’ opinion of the Chair, it is necessary to issue mittee on Homeland Security and Govern- a subpoena immediately. mental Affairs, or staff officers designated Subcommittee on Emerging Threats When the Subcommittee or its Chair au- by them, by the Subcommittee Chair, or a and Spending Oversight adopted sub- thorizes subpoenas, subpoenas may be issued staff officer designated by him or her, imme- committee rules of procedure. upon the signature of the Chair or any other diately upon such authorization, and no sub- Consistent with Standing Rule XXVI, Member of the Subcommittee designated by poena shall be issued for at least two cal- today I ask unanimous consent to have the Chair. endar days, excluding Saturdays and Sun- days, from delivery to appropriate offices, printed in the RECORD a copy of the f rules of procedure of the Subcommittee unless the Chair and Ranking Minority on Emerging Threats and Spending SENATE SUBCOMMITTEE ON GOV- Member of the full Committee on Homeland Security and Governmental Affairs waive Oversight. ERNMENT OPERATIONS AND BORDER MANAGEMENT RULES the two-calendar day waiting period or un- There being no objection, the mate- less the Subcommittee Chair certifies in rial was ordered to be printed in the OF PROCEDURE writing to the Chairman and Ranking Minor- RECORD, as follows: Mr. PETERS. Mr. President, Senate ity Member of the full Committee on Home- 117th Congress Standing Rule XXVI requires each land Security and Governmental Affairs RULES OF PROCEDURE FOR THE SENATE SUB- committee to adopt rules to govern the that, in his or her opinion, it is necessary to COMMITTEE ON EMERGING THREATS AND procedure of the committee and to pub- issue the subpoena immediately. SPENDING OVERSIGHT OF THE COMMITTEE ON lish those rules in the CONGRESSIONAL f HOMELAND SECURITY AND GOVERNMENTAL RECORD not later than March 1 of the AFFAIRS AS ADOPTED SENATE PERMANENT SUB- first year of each Congress. On Feb- February 26, 2021 COMMITTEE ON INVESTIGATIONS ruary 26, 2021, a majority of the mem- 1. Subcommittee rules. The Subcommittee RULES OF PROCEDURE shall be governed, where applicable, by the bers of the Committee on Homeland Security and Governmental Affairs’ Mr. PETERS. Mr. President, Senate rules of the full Committee on Homeland Se- Standing Rule XXVI requires each curity and Government Affairs and the Subcommittee on Government Oper- Standing Rules of the Senate. ations and Border Management adopt- committee to adopt rules to govern the 2. Quorums. ed subcommittee rules of procedure. procedure of the committee and to pub- A. Transaction of routine business. One- Consistent with Standing Rule XXVI, lish those rules in the CONGRESSIONAL third of the membership of the Sub- today I ask unanimous consent to have RECORD not later than March 1 of the committee shall constitute a quorum for the first year of each Congress. On March transaction of routine business, provided printed in the RECORD a copy of the rules of procedure of the Subcommittee 1, 2021, a majority of the members of that one Member of the Minority is present. the Committee on Homeland Security For the purpose of this paragraph, the term on Government Operations and Border ‘‘routine business’’ includes the convening of Management. and Governmental Affairs’ Permanent a meeting and the consideration of any busi- There being no objection, the mate- Subcommittee on Investigations adopt- ness of the Subcommittee other than report- rial was ordered to be printed in the ed subcommittee rules of procedure. ing to the full Committee on Homeland Se- RECORD, as follows: Consistent with Standing Rule XXVI, curity and Government Affairs any meas- today I ask unanimous consent to have RULES OF PROCEDURE OF THE COMMITTEE ON ures, matters, or recommendations. ECORD HOMELAND SECURITY AND GOVERNMENTAL printed in the R a copy of the B. Taking testimony. One Member of the rules of procedure of the Permanent Subcommittee shall constitute a quorum for AFFAIRS SUBCOMMITTEE ON GOVERNMENT taking sworn or unsworn testimony. OPERATIONS AND BORDER MANAGEMENT Subcommittee on Investigations. C. Proxies prohibited in establishment of (1) Subcommittee Rules. The Sub- There being no objection, the mate- quorum. Proxies shall not be considered for committee shall be governed, where applica- rial was ordered to be printed in the the establishment of a quorum. ble, by the rules of the Committee on Home- RECORD, as follows:

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