My website and blog were down for about 24 hours, and my email function wasn’t working for about a week–but my web host assures me that the problem is fixed.
The House Manager’s Impeachment Pre-Trial Brief is here. It’s 77 pages. I’d give it an A+. (The link doesn’t seem to work on Safari).
Right away, the House Managers steer clear of a pitfall they face in the Senate trial: Having this trial play out as if it’s a criminal trial. This isn’t a criminal trial.
Trump betrayed his oath of office. The Constitution makes clear criminal prosecution can happen later. This trial can result only in removal from office and/or inability to hold future office.
This means Trump is not afforded the usual protections a criminal defendant receives. What this means, for example, the standard of proof is lower. In a criminal trial, the defendant must be proven guilty beyond a reasonable doubt. That’s a high bar. On the other hand, most civil trials use the preponderance of the evidence standard, which just means more likely than not (think 51% likely that the defendant is guilty. Beyond a reasonable doubt has been variously given as 75% or 95% or something else. All you need to know is that it’s much higher because a criminal defendant stands to lose liberty, property, or even life. Trump stands to lose the right to run for office.
The introduction gives an overview of the facts, and the facts are damning:
“Trump used his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America.”
He told the crowd to, “Fight like hell [or] you’re not going to have a country anymore.”
Included (for obvious reasons) in the introduction are quotations by Liz Cheney and Mitch McConnell.
Also in the Intro, the House Managers deal with the “defense” that Trump can no longer be tried now that he’s out of office:
Here they touch on the constitutional scholarship and point out that this view gives a “free pass” to stage a coup toward the end of the presidency to stay in power:
Aside: Absurd to think that the Constitution offers a Last-Minute-Coup Exception.
They end the Introduction by arguing for conviction “to deter future Presidents from attempting to subvert our Nation’s elections.”
I love that they throw in the word “unity” given the Republican mantra that Trump should not be impeached or convicted in the interests of “unity.” (Did they care about “unity” when going after Clinton for lying under oath? Nooooo.)
The Statement of Facts is thorough and well done, covering how:
- Trump made clear before the election he wouldn’t accept any result unless he was the winner
- He pressured and extorted state officials and the DOJ to flip the election for him
- He incited the riot.
I won’t recount all the facts. You probably know them well. If not, the Statement of Facts is highly readable. Most people know them. Also it seems the managers are saving some fire: They’ll have some explosive visuals for the trial. I’ll just point out that Trump being “delighted” during the riot is important because it speaks to his intentions and offer a few morsels:
First, they debunk the argument that impeachment moved too quickly.
The events were filmed on national television and witnessed by members of Congress. Weeks and months of investigations was therefore unnecessary (or I’ll add Constitutionally mandated)
Next, they emphasize that this isn’t a criminal trial. (Aside: It makes no sense for “High Crimes and Misdemeanors” to refer the federal criminal code which didn’t exist when the Constitution was written)
Next up, debunking the argument that Trump’s belief that the election was stolen was a defense to inciting an attack on Congress. (Duh, right? But they need to debunk all the nonsense.)
Page 45-48 explains why Trump’s speech is not protected by the First Amendment. (Aside, the way the right-wing distorts the First Amendment freedom of speech makes me go 😡💣.)
I’ll just list the arguments.
Trump’s incitement of deadly violence to interfere with the peaceful transfer of power, and overturn the election, was a direct assault on First Amendment principles.
The First Amendment protects private citizens from the government.
Therefore a range of scholars explain why the First Amendment doesn’t apply at all to impeachment proceedings. The question isn’t whether an individual faces liability for speech. The issue is protecting the Constitutional order.
It’s also absurd to argue that the president has a free speech right to incite a deadly riot for the purpose of overturning an election and keeping himself in power. Public officials are differently situated.
Finally, speech isn’t protected when it’s “inciting or producing imminent lawless action and is likely to incite or produce such action.” (We all know the examples. My freedom of speech doesn’t let me go to a bank teller and say “This is a stick up! Give me all the money!”)
They even refute the Cancel Culture argument.
The bulk of what’s left (48 – 74) refutes what will certainly be the centerpiece of Trump’s defense: The argument that the Senate doesn’t have jurisdiction because he’s no longer in office.
They start with common sense. Transfer of power happens at the end of the term. Absurd to think the framers intended a “January exception” allowing a president to attempt to stay in power by inciting an insurrection without fearing a Senate trial.
“A president must answer comprehensively for his conduct in office from his first day in office through his last.” Quoting a co-founder of the Federalist Society and Ronald Reagan’s Solicitor General:
(Also note the burn on Turley)
Next they offer a straightforward reading of the Constitution. The House impeached while Trump was president. From Art. Section 3, “The Senate shall have the sole Power to try all Impeachments” A Bush appointed judge explained that “all” basically means “all.”
If the framers intended the Senate to have power to only try impeachments of sitting presidents they would have written that instead of “all.”
They make the point that we can’t just “move on” from this.
One theory of constitutional interpretation is we look to see what the framers intended at the time. They drew from English legal history, and former officials could be impeached and disqualified from future office. They also draw on American precedent since.
At this point the brief delves into constitutional and historical scholarship. This is already long, so I’ll just give my conclusion: If the Senate cares about law and facts, Trump’s defense is a loser. (“If” did a lot of work in that sentence.)
Although, of course, to be perfectly fair, I should wait to get Trump’s response brief. It’s entirely possible that I’ll be dazzled by the brilliance of Trump’s arguments for how he should escape accountability (Me = keeping an open mind!)
Expect more Over the Cliff Notes.
Impeachment is by nature both legal and political. When drafting the Constitution, the framers considered giving the task of trying impeachments to the Supreme Court. Instead, they gave it to Congress.
Giving it to the Supreme Court would have made it purely a legal procedure, but the decision would have been made by judges possibly appointed by the president. Giving the task to Congress makes it political because Congress answers to constituents.
The idea is that removing a president (or preventing a president from holding future office) must have wide popular support. The president is elected by the voters. Removal should happen with approval by the voters. That’s why the framers made the bar so high.
