This post originally published at Just Security.
The United States has never put a president on trial for a high crime as grave as incitement of insurrection. And certainly, in no prior impeachment of any individual has such a massive body of video evidence of the alleged offense existed. While this situation may be wholly unique in American history, it is not without precedent from a global perspective. Leaders of other nations who have engaged in international crimes have faced prosecutors armed with voluminous documentation, including video evidence sourced from mobile phones. Experts on how evidence is collected, documented and presented in such trials see parallels with the imminent impeachment trial of former President Donald Trump, and they believe there’s cause to rethink how social media evidence is collected and how such proceedings are carried out in future.
Audiovisual evidence has played a role in past presidential impeachments. Richard Nixon famously resigned before he could be tried in the Senate in part because of the existence of highly incriminating audiotapes he made in the Oval Office and, as part of that ordeal, his refusal of a congressional subpoena for the tapes appeared in one article of impeachment against him. Segments of videotaped depositions from key figures were employed in the impeachment trial of Bill Clinton. And, there were audiovisual elements submitted in Donald Trump’s first impeachment trial.s.
House impeachment managers have signaled they intend to use a significant amount of video evidence in the coming trial, including perpetrator video acquired from social media. “The footage is being collected by House managers and support staff, and compiled by the law firm Debevoise & Plimpton, which produced audiovisual materials for Trump’s first impeachment trial when he faced charges that he had solicited foreign interference to help his reelection bid,” reported The Washington Post. “Video, audio and other visual materials are considered even more pivotal to making the case for conviction in Trump’s second impeachment trial, according to aides involved in House Democrats’ strategy.”
To better understand how the audiovisual material may play into a trial of this historical and political significance, I spoke to several experts on the use of audiovisual evidence in settings such as the International Criminal Court and the prosecution of human rights violators. The experts included:
Dr. Alexa Koenig, Executive Director of the Human Rights Center, a lecturer at UC Berkeley School of Law, and founder of the Human Rights Investigations Lab;
Kelly Matheson, Associate Director of Programs at WITNESS, a nonprofit organization that helps people use video and technology to protect and defend human rights;
Palika Makam, a media activist and the U.S. Senior Program Coordinator at WITNESS;
Jackie Zammuto, who leads WITNESS’ programmatic work in the United States as Senior Program Manager; and
Eliot Higgins, founder of Bellingcat and the Brown Moses Blog and an expert on open source investigation tools and techniques.
Here are three key themes from their observations:
1. Social media video evidence is only one piece of a difficult puzzle.
Impeachment managers will bring evidence in the Senate trial that Donald Trump incited the violent siege on the Capitol on January 6th, including developing evidence of his role in the disinformation campaign that led to his supporters’ deadly fervor and his response as the events unfolded. To do this, the impeachment managers will need to create a narrative that uses video evidence as one piece of the evidentiary puzzle.
“With the genocide in Myanmar you began to see the patterns and the relationships between people and also events,” said Alexa Koenig. “A lot of times people understand the base crime that is actually taking place, and you don’t necessarily need a lot of additional information to build that out. What they’re often looking for is either lead information to get you to other kinds of buckets of evidence, like witness testimony. Even more important is often the linkage evidence, so knowing who should be held most responsible for the events.”
“I have a mentor named Bill Wiley — he always talks about how proving the crime is about 10% of the work that people do, and then proving the linkage evidence is 90% of the work. Impeachment managers will likely be building an evidentiary record showing intent, of course. And they’re going to have to show the link between the protestors and Trump. I’m guessing that they’re going to take some of the most emblematic evidence, because there’s such a vast volume of this evidence that’s going to be visual,” said Kelly Matheson.
To show the linkage, it may be useful for the managers to pair video evidence with testimonials, or information that comes from witness interviews, in addition to any physical evidence that may exist.
“In the impeachment trial, can we actually use video information or other social media content to help build that chain of connection and show that not only he was involved in the incident, but that he had the requisite mental state that you would need for any kind of eventual ramification for these events now in a court of law, we might we’d probably be looking at something like was he reckless, did he know or should he have known that the comments that he made that were captured on social media would result in the kinds of violence and criminal activity that we saw on January 6th,” said Koenig. “And what do we have in terms of the visual information that we’ve collected from social media that helps to show that requisite mental state. which is often the hardest part to prove when talking about accountability?”
Certainly, the bar in an impeachment trial is not the same as that in a criminal one. Putting aside whether the incitement was deliberate (there is evidence that the president was pleased as events at the Capitol unfolded and only belatedly made a call for peace), the president’s behavior could be considered grossly negligent or reckless, which involves knowingly taking risk. Either would still be a sound basis for deeming his conduct impeachable. Regardless, the impeachment managers should, whenever possible, rely on primary sources, blending in information from trusted media sources that are reasonably possible to validate.
“I am a bit concerned they’re just going to start citing New York Times investigations and stuff like that, which are good, but then it displays a lack of understanding of what they’re actually using as material. If they just say, ‘oh, The New York Times article had all this video footage,’ rather than saying, ‘here’s the footage, here’s the analysis of it, here’s the conclusion we draw from it.” I’ll be very interested if they’re going to be relying on their internal analysis, or if they’ll be looking at other organizations, mostly media organizations who have done analysis of certain moments, because that would betray a lack of understanding of the material that they’re working with,” said Eliot Higgins.
2. The pace and resources available for preparation ahead of an impeachment trial do not lend themselves well to a thorough accounting of all the video evidence.
Last year, the Human Rights Center at the University of Berkeley Law School announced the Berkeley Protocol on Digital Open Source Investigations, a field guide to the use of digital information in international criminal and human rights investigations. But following such stringent international standards may be difficult in the context of an impeachment trial.
“When we’re talking about international criminal standards, those are the highest level standards that you might have to meet in order to get open source information admitted into court and actually weighed appropriately,” said Koenig. “These standards include scrutiny of metadata, understanding the chain of custody of files, and the imposition of safeguards to ensure that people aren’t selectively picking and distorting the narrative of what happened.”
“In the Syrian conflict there were hundreds of thousands of videos being collected. But they weren’t being collected to an evidentiary standard, so WITNESS focused on helping the collectors do documentation, so that it could meet the evidentiary standard, so that it could be used by investigators,” says Matheson. ”So how do you take it from being collected on the Internet and then move it to analysis and verification? How do you present this and package this to decision makers such as the Senate?” Matheson has observed that lawyers for the defendant, when faced with a massive amount of documentary evidence, tend to nitpick at the details of its collection, in an attempt to raise doubts about it. Time is needed for prosecutors to do the required diligence, and the careful expertise in working with such materials as well.
“I expect many of the people who will be involved with the trial, that this kind of video footage and the ways it is used by open-source investigators like Bellingcat and other people who’ve been doing this for a long time, it may not be the kind of skill set they’ve developed. So they might fall into some of their own biases and traps. And when we investigate stuff with Syria and Russia, you always have the other side trying to do counter analysis to pick on the small details, or try and highlight mistakes they think you’ve made. So I’d be really interested to see how the pro-Trump media in particular tries to pick apart the various elements of these videos and see if there’s any parallels between how they do it and how the likes of the Russian government and the Syrian government try to attack the open source evidence,” said Higgins.
“At the international level we build cases over years, if not decades. In the United States, hearings may be really short, and judges might have only a few minutes to make a determination around a case–meaning there may not be much time to evaluate the reliability of social media evidence. I do think those basic skills of how to adequately verify and otherwise evaluate videos from social media are going to need to be built, particularly for more critical and visible cases like what we’re talking about now,” said Koenig. Indeed, it may be necessary to build new methods and infrastructure to prepare for cases that will arise in the future that involve similar amounts of documentary evidence amassed from social media. “I think there is potential, particularly within the United States, to start building those infrastructures, because social media is not going anywhere. And I think it’s going to become increasingly important and relevant to what we see in US politics and certainly with global politics,” said Koenig.
3. No matter the outcome, the documentary evidence presented will shape history.
Even if the requisite sixty-seven Senators do not vote to convict Donald Trump, the collection of evidence for his trial will reverberate through history. The Berkeley Protocols were announced on the 75th anniversary of the Nuremberg Trials, at which the prosecution played an hour long film simply titled, “The Nazi Concentration Camps.” Not only did the video evidence impact the trial, it changed the way we perceive the German atrocities to this day.
“I am hoping that Congress treats this as a civics lesson and allows us to start understanding how government functions, why it functions, and how the actions on January 6th undermine our democracy,” said Matheson. It is possible to imagine the evidence serving as the basis for an educational resource, such as the platform (described here) that the International Criminal Court used to present evidence in its case against Ahmad Al Faqi Al Mahdi, who was convicted of war crimes in Mali.
Certainly, the video evidence will represent a curious portrait of the various forces motivating the base of the Republican party at this moment in history. The participants in the siege on the Capitol represented “a really fascinating cross section of America, and I hope some of the coverage in the future will focus on that. I mean, there was a pride flag being flown from the inaugural scaffoldings really early on, and a Trump flag flying next to these America First and quasi-fascistic flags. I think it’s just such a fascinating insight into a pretty significant section of America and a pretty significant section of the Republican party,” said Higgins.
“Oftentimes the value of these processes is less about the final decision that’s made, because those are often steered by politics, than it is about actually correcting historical narrative, and educating a broader public about what took place relative to a particular event. The impact of something like this should go far beyond the decision. The last time we had an impeachment trial, the House came in with the best evidentiary record, a record that you cannot question in any way, shape or form and given the votes, and given the politics they could not get a conviction. But you do this for the public, you do it for the country, you do it for democracy,” said Matheson.
Indeed, even when there is convincing evidence, much of it collected from the perpetrators of a crime themselves, it does not mean there is a conviction. The politics of the courtroom, technicalities and other issues may result in acquittal regardless of whether the documentary evidence is damning. “Videos of police violence against black and brown bodies often do not lead to justice,” noted Palika Makam.
“The internet is a crime scene,” Joan Donovan, research director at Harvard’s Shorenstein Center on Media, Politics and Public Policy told Politico shortly after January 6th. In many cases, those who took part in the violence at the Capitol published on social media the very evidence that will be used against them in federal court. Prosecutors will have more time and resources to engage in detailed investigations that can take advantage of the best practices described above. Video footage from Parler, for instance, is already offering clues as to how various extremist groups coordinated on the day, pointing to evidence of some advance coordination. Still others, in the face of the evidence of their own actions that day, have argued in their defense that Trump instructed them to storm the Capitol. Video footage may be helpful to those defense attorneys too.
More generally, long after the gavel drops on the trial of Donald J. Trump in the well of the U.S. Senate, evidence gathered about the events that shaped and led to the siege on the Capitol will still continue to come to light. There are important questions going forward about how social media evidence is marshaled for trials of influential figures in the United States, which is not accustomed to holding its own political leaders to account for crimes such as incitement of violence. But should American politics continue to fracture and extremist elements ascend to high office, Trump may not be the last to stand trial for atrocities. The way social media video evidence is employed by House impeachment managers may set the stage for future American tribunals.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.