Snatching Defeat from the Jaws of Victory: How the House Managers Lost the Case to Impeach Donald Trump
By the end of Saturday, February 13, 2021, Donald Trump had once again made history: he had become the first President of the United States to be impeached twice, and the first to be tried for impeachment after leaving office and found not guilty. Many commentators in the media treated the verdict as a foregone conclusion — but in reality it wasn’t. In fact, the case was the House mangers’ to lose, and the blame for the not guilty verdict falls squarely on their shoulders.
The House managers could not have hoped for a better situation in which to convict Donald Trump. The incitement of a literal insurrection was without doubt a charge worthy of impeachment and removal from office. Trump’s last-ditch attempt to overturn the election result had sicced a murderous mob on both parties in Congress. And, the most influential man among the Republican members of Congress, Senate Minority Leader Mitch McConnell, had let it be leaked that he thought that an impeachment would be a good way to remove Trump from the Republican Party. All the House managers had to do was prepare their case properly and give McConnell the tool he needed to remove Trump from the equation. Unfortunately, preparing the case properly was perhaps the one thing the House managers hadn’t done.
The warning signs existed as early as their filed brief. There was a general lack of legal precedents, an absolute lack of reference to sworn testimony, and a lot of references to news stories, many of which were based on unnamed sources. The defence brief, on the other hand, came to the table referencing Supreme Court decisions. When it came to the law, the defence’s argument already had the upper hand on precedent alone.
On the first day, however, it seemed as though this would not matter — the performance of the defence lawyers was so bad that it was difficult to credit them with having written their brief in the first place. The House managers, on the other hand, made a comprehensive jurisdictional argument that left their own brief seeming far less pretzel-shaped than before. They won the day on the legal merits, fair and square.
But then came days two and three, in which the House managers presented their case for Trump’s culpability in the insurrection. Their case was compelling — they could demonstrate a pattern of behaviour from Trump, and argue that the most likely explanation was that he was grooming extremists to use as a last-ditch effort to hold onto power. But, it had obvious and gaping holes. They had nothing to establish a timeline of what was happening inside the White House around Trump other than his tweets, some received phone calls, and speculation. They dropped a bombshell that the Trump campaign had been monitoring extremist message boards, but they had nothing to demonstrate what information was gathered and what had been done with it. Both of these were events that had happened behind closed doors, which could only be illuminated through sworn testimony — and all they had were news stories. As a result, two areas that could have been smoking guns were little more than a weakness. They had a case against Trump, but without a proper smoking gun it was circumstantial.
There was also the problem of due process. The matter had been brought to trial so quickly that there had been no investigation or sworn testimony. There was no discussion of the Supreme Court precedents mentioned in the defendant’s brief, other than a declaration that since the Senate had the sole power to try an impeachment, it made the rules regarding what due process would mean.
Any competent lawyer could have spotted and exploited these problems, and that was precisely what the defence counsel did. Finally getting their act together on day four, they demonstrated that the video evidence of Trump speaking was incomplete in potentially misleading ways, that key evidence rested on little more than news stories, presented a free speech argument backed by the Supreme Court, and grounded the question of incitement in criminal law, using the fact that the coded language Trump used matched common political rhetoric on plain reading. Within an hour, the House managers’ case was dead in the water. Despite the fact that Trump’s guilt was obvious, and the defence had no answer to the mountain of evidence that Trump had not only wanted a riot, but revelled in it, they had done enough to show that the case on its own could not meet the evidentiary standards required to justify an impeachment. Without a smoking gun, there was room for plenty of reasonable doubt.
However, the House managers’ case was far from irretrievable — witnesses could still be called, and this would have allowed them to fill the holes in their case with sworn testimony from former White House aides and Trump Campaign workers. On day five, they seemed to have realized that and asked the Senate to permit them to call witnesses. However, they only asked for a single witness who had been mentioned in a CNN story broken the previous evening regarding a phone call she had been told about. Then, they bowed to Senate Democrat pressure to just enter the statement of the witness into evidence and leave it at that. The holes in the House managers’ case would remain open.
Things only got worse for the House managers in the closing arguments. First, they got caught breaking the Senate rules for the trial when they tried to bring new evidence into their summing up, despite the fact that they had the opportunity to enter it into evidence at the same time as their witness statement. Then the defence’s closing arguments revealed the bombshell that they had only received the House managers’ evidence package on the first day of the trial — a clear breach of disclosure rules and ethics that had left them with almost no time to prepare. As they closed, they may not have been able to answer to the former President’s conduct, but they were able to show enough irregularities in procedure and law that the case should never have been permitted to go forward in its current state, and the late disclosure of evidence had made it impossible to call the trial fair.
Although the Senate Republicans were criticized for not voting to convict Trump, when one looks at the problems in the House managers’ case and conduct, it’s hard to see how they could have. The House managers had shown a disregard for burden of proof, provided no sworn testimony, presented at least some evidence that had been edited in a misleading way, taken a stance on due process that amounted to “if the House and Senate says it’s okay, it’s okay,” and been revealed to have disclosed their evidence to the counsel for the defence after the trial had started.
In the end, it seems as though the case against Trump failed because of plain and simple hubris. By all appearances, the House managers thought that because so much had happened in the open, they hadn’t even considered that they would need to do extra investigation to fill in any blanks. They gave news reports from anonymous sources the same weight as sworn testimony. They used criminal law terms such as “incitement” without bothering to engage with the actual definition of the term. And when they had an opportunity to shore up and salvage their case, they couldn’t even see what holes needed to be plugged.
In many ways, the trial was a unique one: the jury were all both witnesses and victims of the crime, and a guilty verdict hinged on convincing a single man — Mitch McConnell — that this could be used to remove Trump from the Republican Party. But with so many flaws and problems, they had given McConnell nothing he could have worked with.
Robert B. Marks is a writer, editor, researcher and publisher. He has previously worked as a legal researcher for Barry Bien Legal, and successfully represented himself in Ontario’s Superior Court.