He again and waiting to decide to do politics. Past ideal and Ruth today, House impeachment managers finished laying out their argument for why former president trunk should be convicted by the Senate for inciting an insurrection at the? U S, Kapital they presented evident spanning months from before the election. When then, President Trump refuse to commit to a peaceful transfer of power to his attempts to overturn election results in individual states and then to footage in

the capital on January sex that the public had not previously see. We ve talked about the political dynamics within the Senate, previously almost part cast. It appears unlikely that seventeen Republicans will ultimately joint Democrats to convict Trump, although it will have to see how the vote comes down, but these proceedings are still a meaningful record that could shake public opinion and the historical record. So today we're gonna dig into the evidence, and the law and hearing me to do that is our colleague ABC News cake, shot. Kate is illegal contributor at ABC Law, professor at Cardoso, school of LAW and Co. Host of the pod cast. Strict scrutiny. Welcome Kate things rather me back and listeners may remember. Kate from this pact has previously during the last impeachment. So thank you for for coming again. Let's get to it. What was the crux of the argument

house. Impeachment managers made for a wife and will present a trumpet should be convicted for inciting an insurrection. The case that they made this week tracked pretty closely these single article of impeachment for incitement of insurrection, and it focused, of course, on the events of January sixth, but just as you said, took a pretty broad view of that sort of January sixty as the culmination of a sustained campaign that started on November third in some ways, but even earlier than that in many ways, a sort of the President President Tromp seeking to discredit the outcome of the election that he had lost sort of seeking different venues pursuing different avenues to undermine the legitimacy of his election law, since that involve lawsuits than it involved pressure campaigns against state officials, His attention turned to his vice president. My pants with me somehow believed had the latter

power to refuse to count votes from some of the states that had gone for Joe Biden, I'm so ass. His return to spoke with two January six rate of many of his supporters have internalized. This lie that the election had been stolen began to coalesce around, this plan- and you know where their actual was our actual evidence that the president was in coordination or conversation with any these individuals prior to that January, six attack. No, there wasn't- and I expect will hear a lot about the conspicuous absence of that kind of evidence. From the former as it is to fence team, but there's a lot of circumstantial evidence had suggested that, especially on January sixty itself, President Trump was quite aware of the way his followers were understood, his exhortation to fight like hell, or they wouldn't have a country to be tough right. You don't use it

fight, something like twenty times during his speech, an ellipse just before everyone started to march on the capital and that also, during the course of the actual attack on and siege of the capital. You know, even if you followed all this really closely in real time, it was quite striking, not justice, The new footage that you talked about, but to see laid out along a kind of a timeline that the tweets that President Trump sent over the course the day see essentially to encourage some of what was happening even at the end of the day when it was pretty clear how maybe not the full extent, but a lot of serve the much of these? and of how harrowing and violent the scene inside the capital has been that the President contain double down on this false claim of election fraud and that these are the things and events that happen when you know Secret election victory, a landslide victory, is stolen. So in a very effective presentation, I think

The house managers made the case that you know an offence against the sort of policy or the body politic was exactly kind of conduct that the framers had in mind when they drafted the impeachment clauses of the constitution. That is harder to think of a stalker example of high crime of mist, that inciting violence mob to attack a coequal branch of government and that, for that reason it's a conviction and then potential disqualification from future office. Holding should true that point, in particular the rationale for why impeachment exists in a we talked about this when you are the pie cast a little over a year ago. This is a political and not legal procedure.

so it works differently from a criminal trial. There's no fines, there's no jail time at stake, and it simply laid out in the constitution as the consequence for treason, bribery or other high crimes and misdemeanours. So, in this particular case, were the house impeachment managers casting their arguments in legal or political terms, because you know this Ultimately, you just gotta get your colleagues to see the world the way that you do or make your case to the american public in such stark terms that you shift public opinion in such a way that it becomes you now all right we'll where they actually trying to treat this more as a criminal case where you have to prove point by point by point that you know legally trumpets liable for incitement of an insurrection, I think impeachment is always both a political and a legal process, and so I don't think it's the case that we should all through our hands and

in a war. Obviously, everyone is gonna vote. There are kind of partisan interests and and there's no law to speak of it all in this process, and I think a lot of law happens outside of courts and this is congressional law, and so I think precedent matters a lot when you're talking about impeachment just at the precedent that is relevant discontent no precedent, and so do. I think that making arguments in the language of law has always happened in these impeachment proceedings, but that its really clear that neither managers nor the senators voting are bound anyway, by judge made law right. So, for example, the standard actually establish incitement in a court of law would be no you're making a statement. That It is intended to and is likely to cause imminent, lawless action. So those are the requirements of incitement, but is that binding on the Senate? Anything away no, and I'm not your anybody really thinks that it is, but certainly it informs the Senate

because you know a lot of them are lawyers, and this is a process that is a constitutional process, and so they have always looked to some degree to judge made law, but not understood themselves to be bound by all. That said, I do think that so incitement of insurrection is a statutory crime. seditious conspiracy, is a statutory crime. So I think that whatever happens with the final vote count here, I think there's a separate set of questions about whether there could be in a criminal charges that could be brought against the former president based on all this. But but so in terms of, I think

properly understood. The senator should view this as a legal process, but again where they get to decide what the laws and it's always a little. You know it's a strange thing about impeachment, which is is not even clear at the standard of proof should be right. Should each shudder understand himself or herself to you. Don't have to be convinced beyond reasonable doubt or by a preponderance of the evidence, or by clear and convincing evidence is where the standards that would apply to different kinds of cases brought in court. But its there's no settled answer to the question of how convinced any individual sender needs to be by the evidence in order to vote to convict. So they can all have to decide how to answer that question. For. themselves in oh, so it's it's it's a process and the answer to that question is gonna, think be informed by law and their kind of awaited the evidence, but also have a heavy, a politics. I want to get into the suggestion that you made that there could be some criminal liability outside of this enlargement process, but I do want to dig deeper into what kinds of appeals the impeachment managers made where they talking to the public more broadly

where they appealing to a sense of history war, as you mentioned, the law or politics. How worthy trying to do the persuading so little just as the proceedings equal parts and simultaneously legal and political. I think they are simultaneously talking to the senators into the public and, of course, if they convinced the public successfully enough, the public will in turn put pressure on the centres and that could affect the votes. But I think that I think that they are also very much trying to write. First Draft of history, in terms of the meaning of these

proceedings, and I think that in particular in the closing sensation that congressmen Rask and gave firstly said or one of the things he said was, can we just all agree that incitement of insurrection isn't impeach ball offence like he would like these Dorcas record, to make that fact which doesn't seem like it should be subject to real debate, her dispute, but I think he would like it clearly stated by the Senate, maybe even stated in clear terms by the centre should vote to acquit that their conduct is impossible, conduct that it forms a conviction. But you know maybe here, because of these fairly. You know we could jurisdictional concerns because he is a former president. These centres are voting to acquit, but that the conduct itself is not conduct that is worthy of the altar.

constitutional sanction so at the end of their talk there talking to both their writing a first draft of history, and I do think that it's important to bear in mind that an impeachment you know I I I I think it's a mistake to assume that is a foregone conclusion- that the votes aren't there, but of course it is very likely. The gaze of the votes are there, but even if the votes aren't there, I think that it could be acquit. A pretty meaningful aids were creating a historical rights of the events of the sex. That, I think, is a hugely important one, whether it's enough, whether there should be another nine eleven style commissioned a sort of further develop the record, because there are still things we don't know a lot of them. I think, as a profession that this is an important, I think, first draft of a historical record, but is also the case that I think that What could be really politically wounded by these proceedings, even if he is not convicted and disqualified, they got Andrew Johnson waiting. We talked about the first time. But impeachment donating sixty. Eight Andrew Johnson is the first president to be impeached. He is acquitted by a single vote in the Senate, but he's really politically wounded by the press,

says he doesn't this. Eighteen, sixty eight, he doesn't even get his party's nomination to run for president later that same year. So that's a political consequence. He doesn't know be finishes. His term he's not removed, but its significant sort of what it does to his political trajectory. This sort of argument and a bunch of different directions about what the impeachment of Bill Clinton did to death and in sort of legacy in stature and history, but either way it matters to President's, and it matters from the perspective of history of presidents are subject to impeachment and trial. So I think there is in pendant value and meaning in these proceedings, regardless of ultimate vote, you mention those jurisdictional claims, and that was what the first day of the impeachment try was focused on. Essentially whether or not the Senate can even convict a former resident who is no longer in office now the majority of Republicans came down on the side. That is, you know, not constitutional, to convict a president that is no longer an office. What does the legal background

In terms of the answer to that question, I think that the pretty clear weight of authority is in favour of the possibility of holding a trial for a former official in particular where the offence occurred, wall and individual was holding public office and where the impeachment in the house occurred, while the individual was holding public office, both of those things are of course other case here I'm so we really only have two precedents for it. So in seventeen. Ninety is a senator recession. Impeached? We now believe it to be the case, a candidature senator but first decade of the country's history. It wasn't totally clear, and so he was impeached untried after he had already been expelled from the Senate. So that's terrific, President one. The next one is eighteen: seventy six, William Bell Nap, who is a secretary of war and was in get involved in it. option, scandal and resigned, and then was impeach and tried again after his departure from office and the same kinds of jurisdictional questions arose in eighteen, seventy six, they Congress did beat

whether it had the jurisdiction to hold the trial and concluded that it did so. That's really important legal precedent again, not judge me congressional president, but in Congress, has considered and answered this question before has decided it has jurisdiction to try former officials when the two other things I ll say one is you know when you do in constitutional reputation drafting history matters and sometimes pre constitutional. British history matters. The framers. The constitution were at the constitutional convention, debating the drafting of the impeachment clauses, they were very well aware of the fact that impeachment of ex officials were customary practice in Britain it there was one on going at the time the constitution was rapid, while they were at the constitutional convention. They talked about the case of weren't. You

things who was an Ex official who is currently on trial, then for various offences, so they were familiar with us. It was also the case in a lot of state constitutions, impeachment explicitly extended to ex officials. So this was one of the legal kind of culture of the most and it seems pretty clear that the intended, when included impeachment and the constitution to reach acts officials abandoned the last. You know I think reason. The jurisdictional arguments are weak is just a practical one right. The idea that agreed just presidential misconduct, if it happens late enough in a term, would escape its ultimate constitutional sanction. Just feels like, workable kind of constitutional role to me, and not one of the framers would ever have intended, and so, for all these reasons, I think that the arguments against restriction or weak and that's where the weight of the authority as everyone, whose look seriously at risk this basically come out in the way I just described, but its money for.

This argument, you don't want any private official being subject to impeachment right there you there have to be some limits, but here I think you know again. He was in office when the misconduct occurred. He was in office when he was impeached. There was no time to try him prior to January twentieth, and so I think that the Senate pretty clearly does have jurisdiction over the trial show. Some Republicans are still making the case that they as senators and the president, no wonder in office. Do do not have the right to convict that question was settled on Tuesday, but can they still use that as an argument for why they won't convict? When the vote comes down early next week, last really try to meet the argument. Tat all thought they don't. The jurisdictional question has been answered. The Senate has ruled that objection was rejected and thus their some,

location on the part of a senators, it consistent with their both oath of office in here oath as jurors, to do impartial justice to consider the evidence and cast their votes on the basis of the charge and the Evidence- and I became a compelling case with the senate- has decided as a body that it can proceed here, has affirmed the bell, not president from eighteen, seventy six that I just talked about and that they shouldn't be voting on the basis of the jurisdictional question that is no longer a life question. But to return to what I said earlier, there is nothing that constraints the senators in any particular way in this regard, and I do expect that a lot of them will point to the jurisdictional doubt as a basis. to vote to acquit and because it allows them right to avoid. I think, an uncomfortable vote in now. Based on the strength of the avenue.

We ve seen this week on the president's actual culpability here? What are the porter arguments? The trumps defence attorneys are going to make to the public and to senators for why they should not convict from Southern Europe. Due process argument that somehow this happened too quickly in the present trumped up have sufficient time to prepare its, not a crazy argument, but I think that if MR we're happening in April or may they would be making the argument that the managers were dilatory and they didn't actually need to proceed, and so I think that there was some time to prepare and I do think due process principles applying impeachment. Everybody agrees with that, but I do think it's right, but here I think certainly basic due process principles were honoured. I think I'm gonna make a first amendment argument, they'll suggested because at the core of this case against former President Trump, his speech and rhetoric that that speech is protected by the first amendment. I also don't think that that's a strong argument for couple of reasons- one you know even for private citizens speech- is not absolutely

first amendment doesn't can for absolute protection on speech? There are lots of categories of speech that are exempt from the protection of the first amendment, incitement to violence or incitement of Wallace Action is exempt from the first amendment, even if this were a private person speaking, but in particular and you're talking about a public official in the first amendment actually applies in really different ways to public officials. So think about a public school teachers or police officers, they are subject to pretty serious discipline, maybe even firing four things. They say all the time and that's for better or worse than that line of cases actually really problematic, but its wealth is that the first member doesn't have. I certainly anything like absolute protection for those kinds of officials for senior government officials. It's in some ways, even more true, so think about president trumps senior Cyber official Chris Credit

who came out- and you know it to the president's displeasure settled. This was a free and fair election and the president fired it, and no one thought the first amendment conferred on Krebs any protection against that firing. He was subject to sanction in professional sanction for the words that he uttered, and I view this a similar. The president can speak. Of course you can speak, but the fact that it is speech does not protect him from consequences. You know he could be eager, lose every lectured effort right, be fired by the people or he, be subject to impeachment by the Congress, and the fact that it is speech to me is not particularly relevant and also one more thing. It, I think, has to be the case that everyone agrees that certain kinds of presidential speech would be subject to impeachment. So if the president explicitly invited a foreign government to invade the United, states or pledged his feel to write to another government seems pretty clear that will

violation of his oath of office and subjected to impeachment and conviction. So then the question comes to what is the specific speech. They were referring to hear that incited, arrive or incited an insurrection, and you know how much of the art- comes down too well, did Trump literally in ten for the people at the rally to go and violently destroy property and ultimately kill people when he said fight like how. How do you deal with that question of? Is this? Actually? What present from want it. I mean clearly his layers owing to argue that you know he was speaking metaphorically. It is true that no he's gonna be able to certainly in these proceedings may be in any proceedings. What was really going on inside former president trumps mind, but we rely on circumcised

no evidence to establish intent all the time and the law. So I think that if there is clear enough evidence that the president understood the likely effects of his speech, that he understood how his words would be heard by his fur but worse and then, when they responded as they did, when he actively continue to encourage, if not the violence itself, the sort of predicate for the violence right. This idea that the election had been stolen, the idea that middle underlay all of this conduct, it all does add up to a compelling circumstantial case that the president was aware of the effect of his words and maybe that he intended this effect, but again because it's this hybrid legal political process, I dont think you need to they all down, intend in the same way you would in a court room. I do think that if you are making others case in court, that would be the major obstacle establishing presidential intent, and I would ask you specifically about that, but first too

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and then colleagues at ABC News Start here gives you a quick, straightforward understanding of the days news, so you can get on with your dad. Everything from the latest uncovered to what's happening in Washington and what it means for you start here, has you hovered you'll even hear me, nay and some of your favorite five thirty reporters on start here from time to time, clear reporting from ABC most experienced journalists check out stark here wherever you listen to your podcast. Ok, No, you just mentioned that the major obstacle at this were strictly a criminal proceedings would be establishing intent. Do you think that we are going to end up seeing what this case would look like in a criminal court? I'm stuck in my life If not, we will not. I think that the odds are against it, but I wouldn't bullet out that we could see some federal criminal prosecution. I mean, I think, that in some ways it depends a little bit on how

the impeachment proceedings are understood not on any formal way. You know you could charge former president Trump criminally, whether he is even if its convicted impeachment proceeding orb if he's acquitted, as seems likely. None of that has any binding effect on federal prosecutors, but I think that in some atmospheric sense, if that, if it felt like there was this rigorous consideration of these events and their conduct, whatever the sort of outcome that was careful and searching and serve some accountability furthering interests. I think that would reduce the likelihood that you might see some federal criminal prosecution. I'm not sure, that's exactly what we ve seen. It's been this fast process, no witnesses, I'm not sure that it feels like the others have been run to ground even in a factual sense, and so I imagine that there will be some consideration inside the bite and Justice Department of the possibility of whether its incitement events, correction or seditious conspiracy of of some kind of criminal charges to smoke. I imagine if a private citizen,

who held a rally and kind of cemented a more of a private citizen, called rally and managed to real up a mob, then attacked a catholic It all you gotta, imagine that there would at least be serious consideration given to bringing criminal charges against that person, and so from the perspective of equal justice under law. It does seem as though it should at least be considered and maybe one thing I'll says: I'm talking just but federal criminal prosecution. I think there's a decent chance it. He will be charged Fulton County Georgia for his phone call to Secretary of State Brad Rapenburg or at least an inquiry on going right now, and you know it's. The solicitation of election fraud seems like a fairly straightforward crime, so that that seems like a wife possibility to me as well, Yorkshire, revered in some of the details about the investigation that happening unfold and carry today. We also talk previously on this podcast about investigations that are

going in New York state, for example, and of course you mentioned that the possibility of federal prosecution that seems unlikely. This all gets at a pretty tricky question for democratic norms. Right, we think in a democratic society? Well, functioning, democratic society, you don't criminally prosecutor political adversaries, because that's a slippery slope rights oftentimes in countries that have democratic backsliding or that are not democracies and all political opponents can end up in prison for barely any reason at all. You can always draw up some kind of reason to throw your opponent in jail, but obviously I am not saying that that's what happened is happening here, but that's oftentimes. That concerned when we talk about prosecuting political adversaries, so the Biden Justice Department, as well as the attorneys general in these different states that could potentially bring suits, are going to have to make this calculation. There also gonna have to

Sid are like well, how will Republicans view this and do they want to retaliate by then prosecuting Democrats, even if they have not necessarily committed the exact same offences that this could spiral in some way? How do you wave those considerations with one that we haven't had a situation where the president has fomented an attack on the capital before and try to overturn watch it in that way. So it seems pretty serious and pretty undemocratic, but there is also the slippery slope on the other side, where things can actually quickly when you start prosecuted political adversaries. I think it's like such an important question, and I guess I'm into some kind of pollyanna it when I say that I actually have a decent amount of sort of faith in the the rule of law, norms of lawyers, and that I am not actually gives me some comfort when I worry about sort of this kind of an escalating cycle of baseless prosecutions of political adversaries, I mean now take a look at

the relatively not. I will say that the generally really strong performance of election officials right of both political parties, when, in the face of really intense political pressure, to deviate from both law and norms and their sort of resistance writing in Purgatory George, of course, artist lies in sport is talking about it, but I think there are other examples as well. So I I guess I think that, because These events in this conduct in this ex president is socially generous, that it would be possible to hold him potentially accountable in a criminal context, without necessarily opening the pandora's box you are describing. Although I would, I would think, of iron, the divide and Justice Department leadership. I would absolutely one appointed an independent council special prosecutor type to actually take a look at the events of January. next, whether any additional criminal charges against high level persons should be considered. In addition to all these, obviously there are many. Many charges have already been brought. I would maybe

a person to be a republican right, a prominent one. You know, I think that there are ways it you can try to de politicize the process of considering charges against a former president, and maybe the process concludes with a decision not to prosecute, and maybe that's for the best. But at least there's been some serious thought and consideration given to it, but yeah mean the concerns that uses voiced. Our think the reason that I still think it is, or one of the reasons that I still think that that the kind of concerns will be powerful enough them that we are not likely to see the criminal charges brought. But again, I think you could find a way to do it that what happens, reduce the chances of a sort of lighting a torch that we would then required to regret. This gets outside of the realm of. Perhaps you know, constitutional law were fury surrounding the presidency and impeachment, but were now at seeing various different lawsuits come out surrounding Juno responsibility for this information campaigns, shrouding election fraud. You know we saw

that fact, news has been served at two point: seven billion defamation lawsuit along with some of their hosts and Rudy Giuliani, Sidney Power, the Ex Trump attorney, and we we also see that the rioters themselves are in many cases being prosecuted. I'm curious when we think of how do we want to make sure this never happens again, while the one of the ways that the Democrats are pursuing? This is through this important process and this trial. You know. To what extent can these other methods of prosecuting individual writers or defamation lawsuit? Are things like that? How much power does not have to kind of nip induce information in the bud or deactivate some, these militia groups, for example? Yeah? I mean I hate to say because, like my tool is the law, but I do worried that the law, I'm not really gonna, be able to help us to answer these questions of a sort of that that that one of the key afflictions of the body politic at the moment like is this

sort of is misinformation, but it's hard for me to see exactly how law, as opposed to kind of politics and culture, and other Sort of tools are going to fix that problem. I do think that Ino, these lawsuits are significant and I do think that Kennedy platform meaning of trump and a lot of others on twitter and Facebook are released. They get in those things, aren't you don't there there outside of law, but sort of law informs themselves. The Facebook Oversight Board is considering this question right a ban and its using a legal process, its not being bound by war, but its first are competing in certain respects, like a kind of a political and kind of a legal process. As I understand it from the first batch of written opinions that they just issued. And so so so. It does feel like that, that kind of legal remedies at you just listed. Are you no kind of mandate,

and sort of the kind of the body politic. Illness is one that You don't remedies that aren't purely legal remedies are going to be required for and lastly, what about the future of impeachment. This maybe pose a similar questions to the spiral of prosecuting political adversaries. Obviously, present drug has behaved in in a way that no former president has, or at least not any. president in our modern recollection has, but none the less things turn into a partisan tit for tat does is impeachment now kind of just like were used to it. It's something that happens. I think impeachment too, This is something that we may see. Moreover, I think that in their their worries, I am under wash and under Obama that we were sort of index or entering this ancient impeachment in which impeachment was gonna, be used now to routinely

then it should be a pretty extraordinary process and not regularly invoked and look now. We ve done it twice in two years. Essentially- and that's you know, that's half the time that we have ever done it And so I do think that there could be reason for concern that we might be in this area which literally every president, where the house is controlled by the other party, which has historically very often the case. Gonna be subject to a serious impeachment threatened. I guess I think that there that we may be again moving into an era of more impeachment talk, and maybe in our efforts by some members that actually seeing impeachment vote in the house is something that is still gonna, be relatively rare. Although get it we could, we could see an arctic end in over there. The two third Super majority requirement for conviction in the Senate is something of a bulwark you know if for better or worse, but it could be the case that

It always effort. We have pretty routine impeachment in the house. I kind of like a veto and confidence vote in a parliamentary system and its not that big a deal and we don't hold like the hearings, many tons witnesses or anything like that, and that we are to have a vote in the Senate and we're not if the outcome is so far No, we go about our business. I don't think that's a good development, but I don't think it's a fatal one. I do think it's possible that we could see it, but I actually think rhetoric that you have seen from the Republicans in Congress. For the most part, obviously there are exceptions seems to reflect an appreciation that this conduct was clear the out of balance, and so I dont see them using this precedent as a justification. we want a lot of impeachment inquiries into president. And at least any better serious, her role. We won't leave it there. Thank you so much for

enlightening us again all things impeachment things somewhat robbing me my name is given droop Tony chow is in the virtual control room you can get in touch by emailing us at podcast set five. Thirty, eight dot com. You can also, of course, tweeted us with any questions or comments if you're a fan of the show, leave us a reading or review in the apple pie store or tell someone about us thanks for listening and will cease.