Did Donald Trump Cause the Storming of the Capital?
David Tiffany, JD, LL.M
The second impeachment trial of Donald Trump is taking place and there are two arguments that he should not be impeached. The first is impeachment is unconstitutional because he is a former President. This issue can best be tested if he is convicted. In that case there will be a case and controversy and the Supreme Court decides the issue when the action is appealed. The other argument is based upon the notion that Donald Trump's actions did not cause the riot at the Capital.
The concept of "causation" is something everyone who has had jury duty in an automobile accident or slip and fall case understands as they are routinely given a jury instruction by the trial judge on this issue. Even though causation is encountered as a negligence concept, it is nonetheless, a universal concept that should be applied to the argument made by some Trump supporters that his conduct did not cause the Capital riot.
This legal concept is not very complicated. This is how it is described:
"The defendant's conduct is a cause of the event if it was a material element and a substantial factor in bringing it about."
"A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct."
An appellate court called this concept of causation as "ultimately a matter of probability and common sense."
The mountain of evidence presented in the impeachment trial is that the mob and the President were one and the same. Donald Trump planned the voting fraud narrative and then publicly and privately lobbied to have elective officials change the results. He planned the rally, paid for it, assembled the mob and watched as his family and supporters urged the mob from the same stage he spoke from to take forceful action directly against the Capital. He then fired up the crowd even more, urging them to march on the Capital including the false promise that he would join them.
Donald Trump's conduct was a material element which clearly was "the" material element behind the attack on the Capital. This conclusion is fully supported by his supporters who undoubtedly believed; based upon their words and actions that day by their words and conduct before and after that day that they alone could "stop the steal". "We fight for Trump" chanted by the mob eliminates any doubt on that front.
There is no evidence, none, that the former President through the full breadth of his conduct did not contribute to the riot. There is no evidence that the riot would have occurred if the former President did not participate in formulating the "big lie, did not organize the protest and did not direct the mob to march on the Capital.
Causation attributed to Donald Trump should not consequently even be a serious issue. History will record the votes of our Senators, on what side of history will they be remembered?