The internet is full of evidence for Trump’s second impeachment trial

When senators convene at the US Capitol for former President Donald Trump’s second impeachment trial, they’ll sit in the same place from which insurrectionists livestreamed their Jan. 6 invasion of the heart of American democracy. Many in the mob, which overwhelmed police and forced lawmakers to flee, said they’d been invited by the president. Others said they needed to “stop the steal,” a reference to Trump’s oft-repeated and bogus claim that the election had been rigged against him.

Now those videos and other online posts could come full circle by potentially serving as a chunk of the prosecution’s evidence to support the sole impeachment charge against Trump: incitement of insurrection. 

We won’t know what evidence will be used until the trial begins on Tuesday. But the events may be among the most well-documented on Earth. A staggering amount of evidence was posted online, some of it captured in a database, called Faces of the Riot, that’s available to anyone with an internet connection.

Read more: Trump’s second impeachment trial: Here’s what could happen

The prevalence of social media usage in the riot makes sense, says Sinan Aral, who runs the MIT Initiative on the digital economy. The mob was able to see content pushing misinformation about the election from Trump and others, as well as calls to action. “It motivates the crowd’s actions, it legitimates the crowd’s actions, and it’s an avenue for coordination,” Aral said. 

Like everybody these days, the insurrectionists carried phones, recording their actions and expressing their emotions as they stormed the Capitol. Posts on Twitter, Facebook and Parler, a right-wing social media platform, that could be entered include:

• Videos of the crowd’s real-time response to Trump’s encouragement before the riot began.
• Posts of people chanting “Fight for Trump” as they entered the Capitol. 
• Trump’s tweets on the day of the insurrection, including one of a video in which he called the rioters “special people.” 
• Apparent rioters defending their actions on social media by saying they entered the Capitol at Trump’s “invitation.”

Here’s what to know about how that content could be used in the impeachment trial.

What are the rules for evidence in an impeachment trial?

How much social media content gets used as evidence will be up to the House, which serves as the prosecution, and the Senate, which serves as the jury. 

The House impeachment managers select and present evidence. The Senate sets new rules for what kinds of evidence it will consider at the start of every impeachment trial. For example, the Republican-majority Senate in Trump’s first impeachment trial voted to hear no evidence. Additionally, there are no limitations on the use of hearsay or opinion in the trial.

“In our criminal or civil courts, there’s a whole book about rules of evidence,” said Elie Honig, a white-collar defense lawyer and former federal prosecutor. “None of that stuff applies to the Senate.”

Evidence from social media wouldn’t be novel in a criminal or civil trial. Honig says criminal defendants often help the prosecution by posting pictures of drugs or stolen money on their social media feeds, which are then used in trial against them. The amount of evidence in surrounding events of Jan. 6, however, is much greater than is normally seen in court.

Where could the social media evidence come from?

Parler is one big source. It’s a right-wing Twitter clone that became popular as mainstream social media cracked down on misinformation about the election. After the insurrection, Parler went dark because Amazon suspended its cloud hosting services to the company. But an independent group of internet users managed to scrape publicly available posts and archive them before the lights went out. (Parler has since gotten a placeholder site up, but the service isn’t running.) 

Computer scientists ran facial detection software over some of the video posted to Parler and created an online database called Faces of the Riot. (The site is online here.) Journalists have also combed over the Parler evidence to document the crowd’s response to Trump’s speech earlier in the day and to create a timeline of events. 

Posts about the insurrection, including videos from Trump, have been removed from Facebook, Twitter and YouTube for violating the companies’ terms of service. However, these have been captured by news organizations and archivists.

How could the prosecutors use evidence from social media?

The House of Representatives has charged that Trump “made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore.'” 

The team of nine representatives prosecuting the case will likely argue that Trump’s words weren’t just strong political rhetoric. Instead, they had the effect of encouraging and urging his listeners to riot in the Capitol building. 

Social media could come into play with those arguments by giving specific examples of how the crowd took Trump’s words. For example, a video uploaded to Parler shows a man, shouting to be let inside the Capitol building. “We want our fucking country back!” he screams, using language that echoed Trump’s. “Let’s take it!” Another video contains audio of the crowd shouting “Take the Capitol!” in response to Trump’s speech.

How will Trump’s social media posts be involved?

Since this is Trump’s impeachment trial, his own words will likely be under scrutiny as well. In addition to his speech, Trump tweeted and posted to Facebook about the events of Jan. 6, reaching millions of followers. The Senate could consider Trump’s messages to weigh whether he intended to incite the riot. 

In a video posted to Twitter, for example, he told the insurrectionists to go home after they had been rioting for hours, though he didn’t disavow their violence. Instead, he sympathized with their cause and suggested their actions had been justified. He told them to “remember this day.”

Senators could weigh whether that demonstrates that Trump was pleased with the rioters’ actions because they’d done what he had wanted him to do.

How could Trump counter these claims?

It’s possible Trump’s lawyers could argue his words weren’t a call for violence. In his speech, Trump asked the crowd to fight like hell. But he also exhorted them to protest “peacefully.” He also called for calm and requested respect for the Capitol Police on Twitter, though those posts came long after the violence had begun. 

However, it may not come down to a battle over what Trump intended his words to do. According to The New York Times, Trump’s lawyers plan to argue that the entire impeachment proceeding is unconstitutional because he is no longer president. 

If enough senators agree, the documentation of Trump and his supporters on social media will become moot, at least for Trump. Still, they’ll live on in criminal investigations underway into actions by members of the mob.