January 6 Was Just One Day in a Sustained Campaign

The impeachment trial offers a chance to show how Donald Trump tried to undermine the election’s legitimacy for months—not just on the day of the Capitol attack.

An illustration of boxes and the U.S. Capitol.
Getty / The Atlantic

About the author: Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law.

A risk exists that the Senate impeachment trial will focus too narrowly on the events of January 6, which culminated in the attack on the Capitol. As horrific as that day was, the broader picture cannot be allowed to slip from view: Donald Trump’s sustained, relentless efforts to propagate the myth that the election was stolen, including his attempts to recruit state and federal officials to embrace that myth and take action based on it.

For at least four reasons, this broader focus is important. First, if the trial centers on whether Trump incited the attack on the Capitol, the process is likely to get mired in hairsplitting debates, such as parsing his language at the rally to argue over whether he was urging peaceful protest or an actual attack, or what he meant by the word “fight.”

But in contrast with possible uncertainty about the express or implied meaning of his words on January 6, there can be no question that Trump used the bully pulpit of the presidency day after day to try to delegitimize the election—even for nearly a month after the Electoral College had voted. The entire country is fully aware of his relentless assertions about voting machines being rigged, ballots mysteriously showing up, dead people voting, and the like. Nor is there any dispute about the numerous concrete steps he took to persuade state and federal officials to act on his assertions, or even about exactly what he said to at least some of them. At a minimum, the public already has access to the recorded phone call between Trump and Georgia’s secretary of state, and to Trump’s many efforts to pressure Vice President Mike Pence to refuse the votes from some states. Similar efforts to pressure other state officials have been reported, but less publicly documented, and the trial could help further bring them to light.

Second, one major purpose of a trial at this point, now that Donald Trump is no longer in office, is public accountability. The key question is, accountability for what? It should not be solely for his actions, or inactions, on January 6. The high-profile Senate trial offers the opportunity to demonstrate, yet again, that Donald Trump unceasingly tried to sell a false story about the election’s legitimacy. And even though some voters have left the Republican Party over this behavior, and others who initially believed that the election was stolen no longer do, the fact remains that many Trump supporters continue to believe him. The trial provides a major, crucial opportunity to further bury that “lost cause” mythology.

To be sure, the events of January 6 vividly demonstrate how dangerous that myth is. But of Donald Trump’s actions, the most important to condemn is not what he said on that single day. It is everything he did after the election’s outcome was clear that led up to that moment.

Third, the other purpose of the trial, in addition to accountability, is to determine whether Donald Trump should be barred from future public office. In the weeks following November 3, many questions arose about whether he was willfully lying about the election, or had become so convinced of what he was saying (egged on by figures like Rudy Giuliani) that he had deluded himself into actually believing that the election was stolen. For purposes of criminal law, this distinction can matter; some laws require that the defendant “knowingly” violated the law. But for purposes of impeachment, this distinction does not matter, because the purposes of impeachment are very different from those of criminal prosecution.

Of course if Donald Trump was repeatedly lying to steal an election he knew he had lost, that would be impeachable. But even if he was “merely” massively deluded in believing that the election was stolen, and pressed numerous state and federal officials to act on the basis of his delusion, that would still make him extraordinarily dangerous in any future public office. And since the trial’s second major purpose is to determine whether, if convicted, disqualification is appropriate, a focus on the longer arc of his sustained false narrative—regardless of whether he intentionally deceived the country or believed everything he said—is particularly apt. Some might ask whether sustained delusion, and taking actions based on it, is a “high crime and misdemeanor” within the meaning of the impeachment clause. But federal officials have been impeached for being drunk when performing public duties. A delusion of this scale, on such a consequential issue, is far more dangerous to the republic than even that.

Finally, as a political matter, getting Republican senators to agree that Trump directly incited the January 6 attack will be a heavier lift than getting them to endorse the view that he grossly abused his office by refusing to acknowledge the election result. To be sure, many believe that Trump had the right to pursue legal challenges up to a point. But many also believe, as does Senator Mitch McConnell, that once the states had certified their totals, and certainly after the Electoral College had voted, Trump’s continued effort to undermine the election was indefensible. Remember that while Trump was pressuring Pence to undermine the election results, more than 80 percent of Republican senators were rejecting objections to the states’ votes. They might not vote to convict Trump, for various reasons, but focusing much of the trial on his actions before January 6 would give Republican senators an opportunity to condemn those actions, whether or not they are prepared to endorse the conclusion that he directly incited the Capitol riot.

The horrifying events of January 6 will live forever in American history. Donald Trump’s role in them will rightly be part of his trial. But the unprecedented attack on the Capitol was the culmination of a much larger campaign to subvert the legitimacy of the election. Whether that campaign is best understood as “The Big Lie” or “The Big Delusion,” it is what must be most forcefully condemned, for the health of American government and American democracy going forward.