Guilty or not guilty? Eight Canadian experts deliver their Trump impeachment verdicts

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The prosecution said Donald Trump knew exactly what he was doing, and the defence said he was misunderstood. Ultimately, Mr. Trump was acquitted of inciting an insurrection at the Capitol on Jan. 6. The U.S. Senate voted 57-43 for conviction; however, 67 votes were needed for Mr. Trump to have been found guilty. Saturday’s verdict hasn’t settled the debate among Canadians about his alleged abuse of office and the appropriate consequences.

The prosecution’s case was based on inferences about Mr. Trump’s intent. The facts as the House Impeachment Managers saw them came mostly from news reports, videos, Mr. Trump’s tweets and what the prosecution called “common sense.”

The defence said news reports are not actual evidence. Moreover, the defence said that Mr. Trump had used figurative language in common use among Democrats – the word “fight” – and that the “sham impeachment” was a terrible precedent that could rebound on the left, if Mr. Trump were convicted.

The prosecution said the First Amendment, which guarantees freedom of speech, existed to protect democracy, not to halt the peaceful transfer of power. It cited a broad pattern of conduct by Mr. Trump, before, during and after the attack on the Capitol had begun, including a dereliction of his duty to try to stop it as soon as it had started.

Trump has been acquitted, but it is not over. This story has no discernible end

The defence said Mr. Trump was “horrified” by the attack, which it described as being carried out by a small group of extremists of the left and right. It said it was too late to try Mr. Trump because he was no longer in office.

The Globe and Mail asked eight distinguished Canadians to act as jurors on Mr. Trump’s impeachment trial in the Senate. They include constitutional experts, a retired member of the Canadian Senate who has advocated before the Supreme Court, a former appellate judge, a courtroom lawyer, a former lawmaker and a businessperson with a background in community-building. Here are their conclusions.

Harry LaForme, retired judge, Ontario Court of Appeal, is currently senior counsel with Olthuis Kleer Townshend, LL.P. He is Anishinabe and lives in Ancaster, Ont.

The power, detail and breadth of the credible and cogent “evidence” presented by the House Impeachment Managers leads to an unquestionable finding of guilt. The House Managers established a timeline of events that predated Jan. 6 and the 2020 election. This timeline involved documented actions and statements of the former president that primed and conditioned his supporters to believe in him, his false narratives and to engage in violent acts at his invitation. This evidence demonstrates not only premeditation but foresight and knowledge on the part of the former president about how his supporters would interpret and act upon his lies and statements. And they desensitized America to their gravity. The evidence was powerful and chilling.

His guilt is established by both his acts of incitement and his non-action to prevent or stop it while it unfolded before him in real time. The House Managers’ “evidence” overwhelmingly establishes both incitement and insurrection.

The burden of proof required is ill-defined, if at all, and appears to be merely how a senator views the House Managers’ presentation. A senator will either think that Donald Trump should be impeached or they won’t. By that standard, the presentation convinces me that “I think he should be impeached.” Clearly, the events of Jan. 6 and those leading up to the insurrection at the Capitol constitute high crimes and misdemeanours.

Serge Joyal, Privy Councillor, is a retired senator, former MP and Minister of the Crown. A jurist, he has intervened in many constitutional and Charter cases. He lives in Montreal.

Based on the arguments presented by both sides, it is clear that the rule of law has been shortchanged. This is nothing less than catastrophic. At a time when there is an absolute need for clarity and fairness, delivering a decision resulting from proper procedures based on an independent process, what we saw was heightened partisanship for political gain. What was entirely lacking were the essential elements of a credible judicial proceeding.

On the basis of this process, the conclusion is: mistrial.

The Senate was the forum of a rushed political confrontation cloaked in the guise of a criminal procedure. The decision, in the end, lacked any convincing credibility as a judicial decision. Its outcome, dependent on a two-thirds vote for conviction, was predictable before the trial even began. All was predetermined by political allegiance or personal interests.

This is a shameful outcome considering the critical issue at stake, one of the utmost importance in the democratic life of the nation: an alleged breach by the former president of his oath of office to “preserve, protect and defend the Constitution” by inciting a violent attack on the Congress as it performed its constitutional duty to secure the peaceful transfer of government.

For the most successful democracy in the world, one would have expected that the legal procedures to assess and possibly sanction a president charged with the commission of sedition against his own country would be clear, and that the judicial process would be rigorously defined in its basic law. Nothing close to this took place this week. This is the tragedy. If the norms are vague because the Constitution lacks rules, and the process is distorted by partisan interests, the outcome can hardly be convincing; it will do nothing to heal the divisions of the nation.

Brian Greenspan is a criminal-defence lawyer, a past president of the Criminal Lawyers’ Association and founding chair of the Canadian Council of Criminal Defence Lawyers. He lives in Toronto.

As defence counsel for almost a half century, I have unfailingly relied upon the prosecution’s burden of proof to establish guilt beyond a reasonable doubt as a sacred principle of our democracy. However, in this, my debut as a juror, that hurdle has virtually evaporated in the face of the overwhelming and graphic evidence of Donald Trump’s plot against America.

He is unquestionably guilty with that requisite degree of certainty. It is clear and unequivocal that rioters committed violence against the Government of the United States by storming the Capitol on Jan. 6. It is equally uncontroverted that the mob did so under the absurd belief, “trumpeted” by the president moments before the insurrection, that their democracy had been stolen, and in provocative language he incited them to “stop the steal.”

The prosecution, armed with convincing contemporaneous video, persuasively established that this was a manufactured tragedy. Who was it that summoned his loyalists to Washington on the day that the Electoral College votes were to be confirmed by Congress? Who was it that stirred the “patriots” with unsupportable falsehoods and deceit? Who directed the unruly mob to proceed to the seat of government, assuring them that he would be with them? And who, rather than intervening when the building was breached, praised the insurgents, describing their toxic hatred as “special,” deserving of his “love” and indeed his admiration.

Donald Trump’s before-, during- and after-the-fact conduct is consistent with his guilt and inconsistent with any other rational conclusion. Common sense demands a conviction. Common decency demands a conviction.

Kerri Froc is associate professor, Faculty of Law, University of New Brunswick.

A turning point of the 2020 presidential campaign came when Savannah Guthrie interviewed Donald Trump, questioning him about why he retweeted conspiracy theories. Mr. Trump’s response was he was just “putting it out there” and essentially, people could decide for themselves what to do. He retweeted things because the mainstream media was so fake and corrupt.

Ms. Guthrie’s tart response was: “You’re the President. You’re not like someone’s crazy uncle who can retweet whatever.”

Mr. Trump doubled down on his “crazy uncle” defence in his second impeachment trial. His lawyers argued his First Amendment right to free speech protects him from being punished for voicing his views on election impropriety.

However, speech intentionally inciting violence that is likely and imminent is not constitutionally protected. Accordingly, his defence also argues that he was not responsible for what his followers did when he primed them for months with “stop the steal” untruths and after he told the Jan. 6 rally of supporters in Washington to “fight like hell” or they wouldn’t “have a country any more.” Essentially, he was just “putting it out there” and they could decide for themselves how to “fight.”

No legally trained person would deny the importance of context in ascertaining the import of speech. I found the House Managers’ juxtaposition of the President’s messages (in rallies and on social media) with videos and pictures of the events of Jan. 6 incredibly persuasive, showing he had created a “powder keg” of amped-up, armed supporters.Trump is guilty.

Joanna Baron is executive director, Canadian Constitution Foundation. She lives in Toronto.

Possibly the most damning evidence against former president Trump came from a statement given to Politico this week by Republican Senator Tommy Tuberville. Mr. Tuberville said he spoke to Mr. Trump as the mob was approaching the Senate, and informed him that Vice-President Mike Pence had just been evacuated from the chamber.

Even after hearing this, Mr. Trump continued to humiliate Mr. Pence on Twitter.

Mr. Trump’s months-long campaign of speeches and tweets encouraging his supporters to march on the Capitol falls short of the criminal standard of incitement, defined as the act of persuading another person to commit a crime. While he did encourage his supporters to “go to the Capitol and fight like hell,” he also added that he hoped they would do so “peacefully and patriotically.”

Nevertheless, Mr. Trump’s words plainly constitute “high crimes and misdemeanours” for the purposes of impeachment proceedings. Whether or not they fit the legal standard of “incitement” is a matter of semantics, as the underlying conduct is plainly an impeachable abuse of public office.

Charmain Emerson is a business executive, co-founder of the Black Opportunity Fund, former journalist. She lives in Toronto.

Incitement means to encourage people, to persuade them, to whip them up and to be reckless about the consequences. That’s in the criminal law. But Mr. Trump is not in criminal court. He’s on trial in the Senate, where the bar of proof is lower and where a jury has wide discretion to judge if an officeholder’s words and deeds violate his oath of office.

Mr. Trump’s oath is to uphold the Constitution. He whipped up a big lie, not just on Jan. 6 but over many, many months before then. Mr. Trump did this to persuade a large number of avowed and proudly violent white supremacists to help him subvert the fundamental principle of the Constitution, which is the electoral will of the people. Mr. Trump called his fellow officeholders “traitors” for certifying a vote that had passed every test of veracity. That is incendiary language, propagating a lie and being reckless in pursuit of it.

He staged the event, he invited the mob and he directed them to the Capitol. Thousands who stormed the Capitol said they did so because Mr. Trump told them there were traitors inside stealing their birthright. If that is not incitement, the word has no meaning. Mr. Trump’s pattern of conduct is a betrayal of his oath. It is an act of subversion against the Constitution and the rule of law. He is guilty.

Merle Alexander, QC, is a hereditary chief of the Kitasoo Xai’xais First Nation, Indigenous resource lawyer and principal of Miller Titerle in Vancouver.

Mr. Trump is guilty. A U.S. president’s words carry the weight of a people. He cannot hide behind his impotence to grasp that a leader of a nation can directly cause great harm by mere words.

Mr. Trump must answer for knowingly inciting a citizenry that he knew, or ought to have known, would be injurious and cause violence against men and women who uphold that democracy. In other jurisdictions, inciting this violence would be considered a hate crime. Sending a known armed and violent mob to carry out your violence is a hate crime.

We have evidence that Mr. Trump had all of the intelligence of the FBI and other public institutions at his disposal, and he did directly measure the weight of his words. He knew the violence that could be brought to bear on the U.S. democracy, that people might even die (and they did) and he did not care. He rejects the democracy that handed him his loss.

This is wrong and Mr. Trump must be held guilty.

Jonathan Denis, QC, is a former Alberta attorney-general, founding partner and chief financial officer of Guardian Law Group in Calgary.

The Trump impeachment “trial” is not a trial in any sense. Unlike in a court, there is no standard of proof, there are no rules of evidence, the “verdict” cannot be appealed and the only punishment is political: In the event that Mr. Trump was convicted, the Senate could then be expected to hold a subsequent vote on whether to disqualify Mr. Trump from ever holding office again.

Much can be said about Mr. Trump’s conduct since the Nov. 3, 2020, election, but to vote to convict him, a rather narrow test would have to be met. Article II, Section 4 of the Constitution states that impeachment is available where a person is convicted of “treason, bribery, or other high crimes or misdemeanors.” This is a high standard that has not been met and, further, there is no jurisdiction of the Senate to convict former office holders – a clearly relevant element now that Mr. Trump is no longer president.

These eight contributions have been edited for length.

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