I offered an Over the Cliff Notes to the House Manager’s brief here.
I’ve been waiting for the Trump legal team to respond. They filed one brief, in response to the Articles of Impeachment. It’s here. It appears that that brief may be the only pre-trial brief they file, so I’ll do a close reading.
The brief (plus the legal team’s response to the House’s invitation for Trump to testify) offer a preview of the defense Trump will offer at his impeachment trial.
The brief begins by confusing “impeachment” with “removal”:
Trump was still president when he was impeached. Impeachment, remember, is similar to an indictment. The trial comes afterward.
Next, they interpret “and” to mean that the first conjunct must occur before the second can occur:
The argument is that because Trump cannot be removed from office because he is no longer in office, he cannot be disqualified from holding future office.
As a practical matter, this gives any elected official an easy way to evade a Senate trial: He simply resigns. He can thus (according to this reading) commit any crime he chooses and then resign before the Senate can hold a trial, and can thus escape accountability in the Senate. It allows another loopholes as well: It allows for a last-minute violent coup attempt because if the coup fails, the term has ended and the official escapes a trial.
This is obviously silly. Why would the framers of the Constitution deliberately create an incentive to stage a violent coup to remain in office?
Next he denies that he engaged in insurrection or rebellion against the United States, therefore, denying his ability to hold office again constitutes a Bill of Attainer. (I’m not sure that’s quite what they meant, but Trump’s new lawyers are obviously new to this area of law.)
Next, they deny that Trump violated his oath of office, and then argue, moreover, that the point is moot because he is no longer president:
He admits that there was an important proceeding on January 6, but claims that he simply exercised his right of free speech in doubting the result of the election. They offer a “fact” to support this belief–that there were changes made in the election rules as a result of the pandemic and suggests that a “reasonable jurist” might agree. (Except that not one single jurist did agree despite more than 60 lawsuits.)
He further claims that if the First Amendment protected only “popular” opinions, it would not offer much protection. The idea here is that Trump was just an ordinary guy exercising his free speech rights when he told an angry crowd that the election had been stolen.
There are things that an ordinary citizen can say that would be protected under the First Amendment, which would not be acceptable for the United States President. Here is one example off-hand: “I hereby declare my highest allegiance to Vladimir Putin.” An ordinary citizen could not be prosecuted for that statement, surely a president who said this should be removed from office.
More to the point, the First Amendment protects citizens from the government, which means it makes no sense of a government official to rely on the First Amendment to remain in office.
Then, like a broken record, the brief repeats that the proceedings are a legal nullity because Trump is no longer president:
Here is a bit of double-talk:
As far as the accusation that Trump said he won in a landslide, he denies the allegation “to the extent his opinion is factually in error.”
This is vintage Trump: He doesn’t deny the content of the call with Raffensperger, but claims he did nothing wrong:
More vintage Trump. He denies that he interfered with the peaceful transition of power, and at all times, did what he thought was in the best interest of the people (the idea here, I suppose, was that it was in the best interests of the people for him to rail that the election was stolen):
In conclusion, the brief lists Trump’s defenses [with my added analysis]
- The Senate lacks jurisdiction because Trump is no longer in office and therefore can’t be removed.
- Because Trump is no longer in office, the Articles of Impeachment are moot.
- Because the Articles of Impeachment are moot, any action against Trump amounts to a bill of attainer.
- Trump’s speech was protected by the First Amendment.
- Trump’s due process rights were violated when the House “rushed” impeachment. [Notice the paradox Trump set up: If lengthy investigations must be conducted before a president can be impeached, by Trump’s logic, the president has many weeks at the end of his term to commit any offenses he pleases, knowing that there won’t be time for investigations and hearings.]
- Trump adds that the fact that there were not lengthy impeachment hearings violated his rights as given in the Bill of Rights. [Note, the protections in the Bill of Rights apply to criminal proceedings. This is not a criminal proceeding]
- Trump then claims that the Article of Impeachment is “constitutionally flawed” because it contains many instances of wrongdoing in a single article. [In fact, it alleges ONE offense and backs up other instances to show state of mind and intent. Trump is not being impeached for the call to Raffensperger; he is being impeached for inciting an insurrection where the call shows his intent to subvert the election.]
- This last one is kind of weird: Because Trump is out of office, the Chief Justice (according to the Constitution) doesn’t preside. Instead it will be a Democratic Senator. Trump accuses the House of engineering this situation on purpose to create more bias against Trump. Um, okaaay. 🤷🏻
