The Second Senate Impeachment Trial of Donald Trump

(The American Prospect, February 1, 2021)

“ you know what we used to do In the old days when we were smart? With spies and treason, right? We used to handle them a little differently than we do now.” That was President Donald Trump on September 26, 2019, referring to the person who provided information to the whistleblower concerning Trump’s infamous April 21, 2019, phone conversation with the president of Ukraine, which was the basis for Trump’s first impeachment.

“In the century and a half of our national existence, not one execution on a federal treason conviction has taken place. . . . We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability.” That was Justice Robert H. Jackson, writing for the Supreme Court majority in Cramer v. United States, 325 U.S. 1, 24 (1945).

During his four years of occupying the White House, Donald Trump repeatedly and publicly charged more than two dozen

individuals and entities with committing treason. His targets included President Obama and then potential Democratic presidential candidate Joe Biden: “We caught President Obama and Sleepy Joe [Biden] spying on our campaign. That’s treason. That’s illegal.” “They were spying . . . on our campaign. . . . It was treason and it should never be allowed to happen to another President again ever, ever, ever.” “TREASON means long jail sentences, and this was TREASON!” And on the Democrats: “I think what the Democrats are doing with the border is treasonous.” And on The New York Times: “The Times never should have done that, because really what they’ve done is virtually, you know it’s treason.” And on the FBI: “I mean, this is the FBI we’re talking about. I think that . . . is treason.” And as to individuals associated with the FBI, Trump accused former FBI Director James Comey, FBI official Andrew McCabe, former agent Peter Strzok, and lawyer Lisa Page of treason. Concerning Representative Adam Schiff, who led the House managers in Trump’s first Senate impeachment trial, Trump said, “I want Schiff questioned at the highest level for fraud and treason.”

Treason against the United States is the only crime defined in the Constitution. It is described as “levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” And 18 U.S. Code § 2381 declares that those who are guilty of treason “shall suffer death, or [be fined and imprisoned], and shall be incapable of holding any office under the United States.” As the following discussion explains, the term treason requires an “originalist” examination to understand its drafters’ meaning and intention.

However, on September 2, 2020, in explaining Trump’s promiscuous usage of the term to describe actions of his adversaries, Attorney General William Barr lamely opined to CNN’s Wolf Blitzer that Trump used the word treason “colloquially” rather than literally. The fact was that Trump’s treacherous accusations of treason were a significant part of his Orwellian norm of prevarication,

which also included falsely describing his opponents as “communists” and “socialists,” for which “red” is indeed a colloquialism. “Treason” however is simply “treason”! Here is the actual wording of 18 U.S. Code § 2381, “Treason”:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

In connection with the treason statute, in an article in the Washington Post on January 7, 2021, UC Davis Law School Professor Carlton F. W. Larson, author of On Treason: A Citizen’s Guide to the Law, compared the January 6 assault on the Capitol with the Whiskey Rebellion of 1794, and Fries’s Rebellion of 1799, in which tax protesters in Pennsylvania used force to prevent the collection of federal taxes. Perpetrators in both cases were tried for treason and convicted. They were later pardoned by Presidents George Washington and John Adams.

In 1842, Supreme Court Justice Joseph Story summarized the treason statute, declaring it was action “by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity.” Professor Larson concluded that the nation’s founders “would have denounced [the storming of the Capitol] as treason.”

Article II Section 4 of the U.S. Constitution declares that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” On January 13, 2021, the House of Representatives

enacted a Resolution of Impeachment of Donald Trump, which declares in its Article I (its single article), “Incitement of Insurrection”:

In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.

In support of its claim, the House resolution alleged the following facts regarding President Trump’s wrongful conduct.

1. In the months prior to the January 6, 2021, joint session of

Congress, convened to count the votes of the Electoral College, Trump repeatedly stated falsely that the 2020 electoral results were the product of widespread fraud and should not be accepted; 2. He initiated a January 2, 2021, telephone call between himself and Georgia Secretary of State Brad Raffensberger, in which Trump urged Raffensberger to “find” enough votes to overturn the Georgia presidential election results “and threatened Secretary Raffensberger if he failed to do so”; 3. Shortly before the joint congressional session commenced on January 6, Trump addressed a crowd at the Ellipse in

Washington, D.C., where he reiterated his false claim that

“we won this election, and we won it by a landslide”; willfully made statements “that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol,” which interfered with the joint session’s “solemn constitutional duty to certify the results of the 2020 Presidential

election” and “unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced

Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive and seditious acts.” 4. The resolution concluded that “Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold any office of honor, trust, or profit under the United States.”

The House’s impeachment resolution was delivered to the Senate on Monday, January 25. And the date for Trump’s Senate trial has been set for February 9. Thus there is time to consider some of the issues that may be faced in Trump’s impeachment trial before it commences.

House Judiciary Committee Report

On January 12, 2021, six days after the insurrectionary riot at the Capitol, the majority staff of the House Judiciary Committee issued a seventy-four-page report, “In Support of H.Res. 24, Impeaching Donald John Trump . . . for High Crimes and Misdemeanors.” The House approved the impeachment resolution the very next day by a vote of 232 to 197, with 10 Republicans joining 222 Democrats in voting in favor. For their dereliction, the 10 Republicans already have been threatened with contested primaries by Trump supporters. And former Clinton administration Secretary of Labor Robert Reich has suggested that a secret ballot be employed for voting in the Senate on Trump’s impeachment, apparently to protect the senators’ independence, and even safety, from Trump’s mobs.

The report (available online) contains a highly detailed factual elucidation of the events, including President Trump’s actions (and inactions) presently known, which the committee’s staff believe

support Trump’s conviction—an outcome that will require a twothirds vote of the senators present, with “stay-at-home” abstentions possible.

On the issue of the “high Crimes and Misdemeanors” that Trump is alleged to have committed, the report concludes that no finding of a violation of the federal criminal code is necessary. Instead, the report states that “President Trump’s conduct need not have violated any federal criminal statute in order for them to constitute ‘high Crimes and Misdemeanors’ under the Constitution”:

It may well be the case that President Trump’s conduct on January 6, 2021—and other actions that he took in seeking to overturn and subvert the certification of the election results— violated the federal criminal code. Ultimately, that is a judgment for prosecutors and courts to make. The only question here is whether President Trump’s conduct warrants impeachment. As the House Judiciary Committee has previously explained, “offenses against the Constitution are different in kind than offenses against the criminal code. . . . Impeachment and criminality must therefore be assessed separately.” [Report, pp. 34–35.]

There is overwhelming support for this proposition. For example, Alexander Hamilton, in The Federalist in 1788, declared that impeachment will “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust” and that “they relate chiefly to injuries done immediately to the society itself.” And at the Constitutional Convention, James Madison said that the impeachment provision was necessary because “it [is] indispensable that some provision should be made for defending the Community agst. [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . He might pervert his administration into a scheme of peculation or oppression. He might betray his

trust to foreign powers.” Further, now Supreme Court Justice Brett M. Kavanaugh, in a law review article written in 2009, declared that there was always a way to remove a “bad-behaving or lawbreaking president. . . . If the president does something dastardly, the impeachment process is available.” (Emphasis provided.) On the other hand, there are those, such as attorney Alan Dershowitz, a longtime Trump defender, who argue that proof of a crime is essential to support a conviction in the Senate.

One conclusion drawn from these circumstances is that the House managers should put in a case before the Senate establishing that while Trump’s actions in and of themselves warrant impeachment, those same actions support the idea that he is guilty of numerous federal crimes, each of which independently warrants his impeachment and, in addition, possible criminal prosecution. Indeed, if the House managers hope to recruit sufficient Republican senators to get them to the required two-thirds of the senators present to achieve Trump’s conviction, demonstrating that his behavior was criminal rather than simply “dastardly” would seem essential. And applying several relevant provisions of the federal criminal code to Trump’s recent actions supports the conclusion that he engaged in multiple criminal violations.

In the first impeachment trial of Trump in the Senate early in 2020, involving his seeking to extract “dirt” on Joe Biden, his then potential rival presidential candidate, from the president of Ukraine in exchange for military aid, 51 Republican senators voted to deny the prosecuting House managers subpoena power to obtain testimonial evidence as well as relevant documents from Trump administration figures. It remains to be seen whether the Senate’s new Democratic majority, including Vice President Harris as president of the Senate, will approve subpoena power in the event the House managers seek it. If this issue arises, it would seem that an impeachment trial might be lengthy, since questions related to enforcement of subpoenas might result in court

litigation over questions of executive privilege, self-incrimination, etc. For example, former Vice President Pence might be subpoenaed to testify about meetings with Trump regarding Trump’s demand that Pence challenge and return state election results to certain states during the joint session of Congress on January 6. As Trump declared about this episode at his January 6 “Save America” rally: “If Mike Pence does the right thing, we win the election.” Earlier the same day, contrary to Trump’s wishes, Pence issued a “Dear Colleague” letter declaring that “my oath to support the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” However, there already is talk in some Capitol Hill quarters of limiting the length of the trial, which might preclude discovery.

The impeachment trial creates a difficult problem for all concerned. For the Democrats it poses the issue of becoming engrossed in a possibly distracting lengthy trial of Trump, which might interfere with President Biden’s desire to “hit the ground running” on the pressing issues facing the country, not the least of which is combating the pandemic that Trump grievously ignored. And in the end, a failure to achieve a conviction of Trump with a two-thirds vote of senators would be perceived as a Trump victory.

And for the Republicans, it presents the dilemma of either joining the Democrats in voting to impeach Trump and then having him barred from holding future office through a simple majority vote, which might serve to split the GOP between pro- and antiTrump factions, or defending Trump against being convicted, since although he no longer holds office, he maintains substantial political support. With Trump threatening some Republicans with primary challenges in 2022, the impeachment trial might turn into an internecine Republican bloodbath between Trump supporters and opponents, which the Republican Party would prefer to avoid.

Criminal Provisions

As to the many provisions of the federal criminal code that Trump—and participants in the invasion of the Capitol on January 6 as well—need be concerned about, there are several that are especially worthy of attention. First, there is 18 U.S. Code § 2383, “Rebellion or insurrection,” which declares:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [Emphasis applied.]

Next 18 U.S. Code § 2101, “Riots,” provides:

(a) Whoever . . . uses any facility of interstate . . . commerce, including, but not limited to the mail, telegraph, telephone, radio or television, with intent— (1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or . . . (4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot; and who during the course of any such . . . use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph[s] [1 through 4]

Shall be fined . . . or imprisoned not more than five years, or both.

Further, 18 U.S. Code § 2102 provides definitions of terms used

in section 2101, including “a riot” and “to incite a riot.”

In addition, 18 U.S. Code § 1001, “False statements,” states:

(a) [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . (2) makes any materially false, fictitious, or fraudulent statement or representation; shall be fined under this title, imprisoned not more than 5 years, or, if the offense involves . . . domestic terrorism (as defined in [18 U.S Code § 2331]), imprisoned not more than 8 years, or both. . . . (c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to— (2) any investigation or review conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate. . . .

Martha Stewart, Michael Flynn, “Scooter” Libby, and Michael Cohen were each convicted under the “false statements” statute. As to this law, it may be contended that Trump, in a “matter within the jurisdiction of the . . . legislative . . . branch of the Government of the United States of America [namely, the counting of the Electoral College ballots at the joint session of Congress on January 6], knowingly and willfully” . . . made “materially false, fictitious and fraudulent statement[s] or representation[s]” to the president of the Senate, namely Vice President Mike Pence, and others, declaring that Pence had authority, under 3 U.S. Code § 15, relating to the counting of electoral votes for president in Congress on January 6, 2021, to unilaterally send the electoral ballots of certain states back to those states for recertification, when it was well established as a

legal matter that Pence had no such authority and that his duties under 3 U.S. Code § 15 were solely ministerial. As to this matter, The New York Times reported on January 12, 2021:

Mr. Trump was enraged that Mr. Pence was refusing to try to overturn the election. In a series of meetings, the president had pressed relentlessly, alternately cajoling and browbeating him. Finally, just before Mr. Pence headed to the Capitol to oversee the electoral vote count . . . Mr. Trump called the vice president’s residence to push one last time. “You can either go down in history as a patriot,” Mr. Trump told him, “or you can go down in history as a pussy.”

Notwithstanding Trump’s pressure tactics, Vice President Pence stood his ground and declared in his January 6, 2021, “Dear Colleague” letter to senators:

As Supreme Court Justice Joseph Bradley wrote following the contentious election of 1876, “the powers of the President of the Senate are merely ministerial. . . . He is not invested with any authority for making any investigation outside of the Joint Meeting of the two Houses. . . . [I]f any examination at all is to be gone into, or any judgment exercised in relation to the votes received, it must be performed and exercised by the two Houses.

Undeterred, Trump stated at his “Save America” rally before thousands of his supporters near the White House later the same day:

I hope Mike [Pence] is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number

one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our Constitution. States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people. And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

Trump was supported by John C. Eastman, a thoroughly discredited right-wing law professor, whom Trump described as “one of the top constitutional lawyers in our country.” Eastman spoke at Trump’s rally, standing side by side with Rudy Giuliani. He had earlier challenged the American citizenship of Kamala Harris on legal grounds, even though she was born in Oakland, California; he said that she was ineligible to run for vice president. And he has continuously estimated Trump’s January 6 rally crowd at a half million for the press when, in fact, it was about thirty thousand. At the rally, Eastman said that Pence did “not deserve to be in . . . office” if he did not challenge the certified victory of Biden.

Another relevant code provision, 18 U.S. Code § 1505, “Obstruction of proceedings before departments, agencies, and committees,” declares:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and

proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Further, 18 U.S. Code § 2384, “Seditious conspiracy,” states:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Clearly, the riot in the Capitol hindered and delayed the execution of the tally of the Electoral College ballots and caused a wrongful seizure of federal property in violation of these criminal provisions.

Looking at the foregoing statutes collectively makes clear that the legal definitions of such terms as “incites,” “assists” “aid or comfort,” “aid and comfort,” and “endeavors to influence,” may have a significant impact in determining guilt or innocence in either impeachment or criminal proceedings arising out of the events of January 6. But collecting, and connecting, relevant facts relating to

these terms in such proceedings may be critical to their outcomes. Therefore, the ability and success of the House managers in gathering such relevant facts and connecting them with the foregoing statutes will have a significant influence upon their success.

Insofar as Trump’s involvement in the January 6 rally on the Ellipse is concerned, some Trump defenders already have advanced the claim that what Trump said to the assembled protesters is insulated by the First Amendment’s protections of free speech. One such advocate is Alan Dershowitz, who argued that the First Amendment and the Supreme Court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), apply to protect Trump from conviction by the Senate in the current impeachment proceeding in connection with the speech he delivered at the rally he had convened near the White House immediately prior to many of his listeners storming and desecrating the Capitol and interfering with a statutorily mandated joint session of Congress. After having listened to Trump for two months falsely and endlessly claim that he had won the November 3 presidential election by “a landslide,” the Capitol invaders sought to “stop the steal” of that election, as Trump directed them to do.

The fault in Dershowitz’s argument is that the Brandenburg decision supports the opposite conclusion—namely, that the First Amendment does not protect Trump from impeachment, based upon his communications to his followers at his January 6 rally.

In Brandenburg, the Supreme Court was faced with a First Amendment challenge to the criminal conviction of a Ku Klux Klan leader under an Ohio criminal syndicalism law that made the advocacy of the use of force and violence to achieve political ends a crime. The defendant’s speech had been broadcast widely on television. In declaring the Ohio law unconstitutional for having violated the First Amendment’s protections of political speech, the Supreme Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy

of the use of force . . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . [Emphasis applied.] [T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” In Trump’s case, there is no question that unlawful force and violence followed immediately after the meeting he convened and at which he and his personal attorney, Rudy Giuliani, and others delivered false and inflammatory harangues to their followers about the “stolen” election. For example, Trump told those he had assembled that “we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.” And Giuliani urged his audience to engage in “trial by combat,” an ancient practice of resolving disputes through physical encounters.

Thus Brandenburg is inapplicable here, because extreme and unprecedented physical violence and destruction did occur. Accordingly, the question presented is whether, by his speech and other conduct, Trump “incited” the insurrectionary riot that followed, so that the First Amendment is not at all involved. It is simply a matter of causation—namely, did Trump’s speech and related conduct incite the riot? This issue is one of proof that will have to be satisfied by the House managers and voted upon by the jury of senators. This conclusion is amplified by the Supreme Court’s decision in Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), in which the Court cited Brandenburg for the proposition that “specific criminal acts are not protected speech even if speech is the means for their commission.”

In this connection, a strong case can and should be made that Trump had long been preparing his minions for violence in the event that he could not otherwise succeed in remaining in office, by election or otherwise, at the conclusion of his four-year term on January 20.

A review of the relevant facts and applicable law is required to address these issues. First, it may be that all of the facts are not yet known. For example, many of the participants in the riot, some of whom have been arrested and charged with federal crimes, have attempted to defend themselves by claiming that they simply were following Trump’s orders. For example, Garret Miller, a Texas resident, has been charged by the Justice Department with invading the Capitol, threatening the life of Representative Alexandria OcasioCortez (D-N.Y.), and other riot-related offenses. In a statement by Miller recently issued by his attorney, he said:

I was in Washington, D.C., on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my president and the commander-inchief. . . . [W]hat Donald Trump had been saying about the election really got to me and I felt I had to support him.

In legal parlance, this approach is known as the “Svengali defense,” derived from the nineteenth-century novel Trilby by George du Maurier. The essence of this defense is that the defendant claims to have come under the influence and control of a sinister third party who has manipulated the defendant for unlawful purposes. It is commonly used as a basis for seeking reduced sentences for guilty defendants. In this case, such evidence might be used to show Trump’s success in inciting the riot and break-in at the Capitol.

Other riot participants are similarly situated to Miller. And others may be “flipped” by law enforcement and provide facts that support the proposition that Trump and his confederates were more deeply involved in “inciting” the riot than is presently known. Discovery of relevant facts by the House managers, through depositions and production of documents, as well as information received by them from informants and law enforcement, may help to support

the House’s claim of “Incitement of Insurrection.” For example, according to a New York Times January 7 story with the headline “Trump Openly Condones Supporters Who Violently Stormed the Capitol, Prompting Twitter to Lock His Account,” Trump tweeted on Wednesday evening, January 6: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”

In an op-ed in the Los Angeles Times on January 11, 2021, Richard Ashby Wilson, author of Incitement on Trial: Prosecuting International Speech Crimes (Cambridge, UK: Cambridge University Press, 2017) and associate dean of the University of Connecticut School of Law, concluded that

on Wednesday, [January 6,] Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the electoral college vote results. He should be criminally indicted for inciting insurrection against our democracy.

After explaining the legal bases for his conclusion, Wilson declared:

I have studied war crime tribunals for three decades and we must . . . learn from the history of societies that lurch from civil unrest into full blown civil war. A failure to respond to incitement of insurrection will only embolden those who wish to destroy our democratic system. The law of incitement was designed to protect the public from exactly [Trump’s] kind of politics of violence. Prosecutors should not be reluctant to apply it to anyone [, including Trump,] who has crossed this line.

As to this issue, Senator Mitt Romney (R-Utah), the 2012 Republican presidential nominee, straightforwardly concluded on January

6 that “what happened here today was an insurrection incited by the president of the United States.”

That Trump has long had a proclivity for extolling and encouraging violence is well established. For example, in 2015, when Trump was told that supporters had assaulted a homeless person in Boston in Trump’s name, his response was that “people who are following me are very passionate!” Later he offered to pay the legal fees of people who “knocked the crap out of” protesters. At rallies he has said of a protester, “I’d like to punch him in the face” and that “maybe he should be roughed up.” He praised a Montana congressman for having assaulted a reporter: “Any guy that can do a body slam—he’s my guy.” In May 2020, Twitter cited a Trump tweet for “glorifying violence.” And when he invited his 88 million followers on Twitter to attend his January 6 rally near the White House, he urged them to “be there, will be wild!”

To try to undo, or simply lessen, the impact of Trump’s machismo, the White House and Trump himself have engaged in the ploy of “plausible deniability.” As explained by Adam Hodges, in his chapter in Language in the Trump Era: Scandals and Emergencies, edited by Janet McIntosh and Norma Mendoza-Denton (Cambridge, UK: Cambridge University Press, 2020), p. 137, plausible deniability is “a common world-shaping feature of political discourse that allows speakers to avoid taking responsibility for a controversial utterance by invoking possible counter-interpretations. To engage in plausible deniability, politicians invoke seemingly reasonable evidence to contest or refute that they meant what they said.”

In his chapter, Hodges focuses on three well-known cases of Trump’s resort to plausible deniability—namely in connection with (1) Trump’s conversation with then FBI Director James Comey concerning Trump’s “hope” that Comey could see his way clear “to letting Flynn go”; (2) his statement that there were “very fine people on both sides” at the violent August 2017 “Unite the Right” rally in Charlottesville, Virginia; and (3) his reversal of his July 16, 2018,