Everything Trump did or said to subvert the election is fair game in his impeachment trial

If House impeachment managers want to raise their odds of winning a conviction at former president Donald Trump's second impeachment trial, they need to interview new witnesses and collect more evidence. Given reports that Trump attempted to fire and replace his acting attorney general so he could use the Justice Department to help him overturn the election results, the impeachment managers should investigate this conduct and present their findings to the Senate during the trial that starts in two weeks.

The article of impeachment that was delivered to the Senate on Monday focuses on Trump’s incitement of the mob that assaulted the U.S. Capitol. But it also notes that Trump’s statements shortly before the assault “followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.”

The article makes clear that “all” of this conduct undermined our government and is included in the charge against Trump. Thus it would be fair game for the House impeachment managers to investigate this conduct and present it to the Senate, given the breadth of behavior covered in the article of impeachment.

Capitol attack wasn't spontaneous

When I was a federal prosecutor, I often charged wide-ranging conspiracies and schemes, and it’s not unusual to present evidence at trial that is not already discussed in the indictment. Charging documents, like an indictment or article of impeachment, don’t need to discuss every piece of evidence that will be offered at trial.

The House has already made clear that managers intend to introduce evidence of Trump's conduct prior to Jan. 6. For example, the article of impeachment discusses Trump's "months" of false claims about election fraud and his Jan. 2 call to Georgia Secretary of State Brad Raffensperger, asking him to “find” enough votes to overturn the election result in Georgia.

Including the full range of Trump's behavior in the article of impeachment was a smart move by the House majority, because the attack on the Capitol was not a spontaneous event. When they charged individual insurrectionists, federal prosecutors presented evidence that the insurrectionists coordinated beforehand on Parler and other social media outlets. The insurrectionists took cues from Trump’s “Big Lie” that the election was stolen as well as the lie spread by Trump and other Republicans that the Jan. 6 certification process could be used to overturn the election.

The scheme hatched by Trump and then-Assistant Attorney General Jeffrey Clark to remove Acting Attorney General Jeffrey Rosen and use the Department of Justice to force Georgia lawmakers to overturn the election results, first reported by the New York Times on Friday, fits into the larger scheme charged in the article of impeachment. It shows that Trump’s incitement of the mob at a Jan. 6 rally was part of a premeditated scheme by Trump to use all means at his disposal to prevent the peaceful transfer of power to President Joe Biden.

Be like the Founders: Amend the Constitution, change laws, fix the problems Trump exposed.

It is possible to conduct this investigation before the Senate trial begins. As the Times reported, the scheme was thwarted when other top DOJ officials threatened to resign en masse if Rosen was fired. The House impeachment managers should subpoena those former DOJ officials to testify, along with Clark and Rosen. There is reason to believe that at least one of them would be willing to testify, such as former Assistant Attorney General Steve Engel, who reportedly told Trump the group would resign if Rosen was fired.

Weaponizing DOJ to reverse election

Now that none of the officials work at the Justice Department, it will be difficult for Trump’s team to try to use executive privilege to bar any of this testimony. Executive privilege is a shield, not a sword — it cannot be used to prevent former administration officials from willingly testifying, particularly if they are testifying before a branch of government exercising its enumerated constitutional power. If any of the former Trump DOJ officials are willing to testify, Trump’s team won’t be able to stop them.

Convict and bar from office: Trump Senate trial offers Republican Party an escape from his death grip on its future

The American people deserve to know what Trump and Clark tried to do with DOJ in the waning days of the Trump administration. The details of Trump’s attempt to use the department as a political weapon to overturn election results could spur Congress to consider reforms to ensure that DOJ is not politicized or weaponized in the future. The House and Senate could conduct more extensive investigations after the impeachment trial. Sen. Dick Durbin, promising "vigorous oversight," has asked DOJ to preserve documents related to the scheme, and the DOJ inspector general announced a probe of the department's role Monday.

But the House impeachment managers should secure testimony now and present that evidence to senators so they can weigh it in their deliberations. Given that Senate Minority Leader Mitch McConnell has not yet decided whether he will vote to acquit Trump, and that he reportedly welcomed Trump’s impeachment, this evidence could help convince Republican senators that Trump should never hold federal office again.

Renato Mariotti (@renato_mariotti) was a federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office from 2007 to 2016.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

This article originally appeared on USA TODAY: Impeachment trial: More evidence of Trump wrongdoing could convict him