Trump’s Lawyers Slam Impeachment ‘Hatred’ as Democrats File Case
(Bloomberg) -- The impeachment of Donald Trump for his words and actions before a mob stormed the U.S. Capitol is “substantively flawed,” unconstitutional and should be dismissed, the former president’s lawyers argued Tuesday in an initial response before his Senate trial.
Trump’s speech to the crowd on Jan. 6 before his supporters attacked the Capitol was protected by the First Amendment, Trump attorneys David Schoen and Bruce L. Castor Jr. said in their filing. The Senate has no constitutional authority to hold an impeachment trial now that he’s out of office, and Trump’s rights were violated by the snap impeachment, they said.
“There was thus no legal or moral reason for the House to act as it did,” the lawyers said in their 14-page reply. “Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States.”
The nine House impeachment managers filed an 80-page brief earlier Tuesday that anticipated some of the arguments that Trump would use in his defense and outlined their case for the single charge of inciting an insurrection when a mob of Trump supporters stormed the Capitol as Electoral College votes were being ratified. The violent siege left five people dead.
Trump and his allies sought to overturn his Nov. 3 election loss to Democrat Joe Biden by falsely alleging a massive Democratic conspiracy to steal the election and trying unsuccessfully to get courts and elected Republicans to intervene. When those efforts failed, he incited the attack on the Capitol, the House manager’s brief said.
“President Trump’s responsibility for the events of January 6 is unmistakable,” the managers said. “If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”
Tuesday was the deadline for House managers to file their trial brief and for the former president’s legal team to file its reply to the Jan. 13 House impeachment. Trump’s Senate trial for his second impeachment is set to begin next week.
With two-thirds of the Senate needed for a conviction, at least 17 Republicans would have to vote with all 50 Democrats to find Trump guilty and potentially disqualify him from holding office again. In what amounted to a test vote, only five Republican senators voted with Democrats last week to block an effort to declare Trump’s impeachment trial unconstitutional. That suggests the argument by Trump’s lawyers that the Senate trial is invalid will find a receptive audience.
In addition to arguing that the trial is unconstitutional because Trump is no longer in office, the former president’s legal team argued that his speech to a crowd of supporters did not incite the violence and is protected by the First Amendment.
“It is denied that President Trump incited the crowd to engage in destructive behavior,” Trump’s lawyers wrote. “It is denied that the phrase ‘if you don’t fight like hell you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech.”
The House managers rejected the notion that Trump could invoke free speech protection against impeachment, saying, “the First Amendment does not constrain Congress from removing an official whose expression makes him unfit to hold or ever again occupy federal office.”
Democrats also disputed that Trump cannot be convicted because he is no longer in office, saying that he was still president when the House voted to impeach him. Invoking the authors of the Constitution, they argued there can’t be an impeachment exception for actions taken right before a president leaves office.
“It is unthinkable that those same Framers left us virtually defenseless against a president’s treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck,” the managers’ brief says. “There is no ‘January Exception’ to impeachment or any other provision of the Constitution.”
The Trump lawyers argue he was denied due process by the House’s “failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article,” and not allowing the the then-president’s positions to be heard.
In doing so, they argue the House created “a special category of citizenship for a single individual” in which due process of law does not apply: the 45th president. “No exigent circumstances under the law were present excusing the House of Representatives’ rush to judgment,” they argue.
But the House managers anticipated in their brief that Trump and his lawyers would raise that complaint. They said there’s nothing about the House’s impeachment case that required uncovering “secretive conduct, or hidden conspiracy, requiring months or years of investigation.”
Trump’s lawyers contend that the impeachment is flawed because it includes multiple allegations in a single charge, making it impossible to know what parts the Senators were voting to acquit or convict. The attorneys also allege that the article was withheld from the Senate to ensure that Chief Justice John Roberts would not preside. Senate President Pro Tempore Patrick Leahy, the senior Democrat, is presiding -- which effectively creates “the additional appearance of bias,” the lawyers said.
The Democrats unequivocally state that the aim is not solely to convict Trump, but for the Senate to disqualify him for office “and make certain that he can never harm our country again.” And they suggest constitutional backing for that in Section 3 of the 14th Amendment.
“The Senate must make clear to him and all who follow that a President who provokes armed violence against the government of the United States in an effort to overturn the results of an election will face trial and judgment,” they argue.
Trump parted ways with his previous defense attorneys over disagreements about whether to argue his debunked contention that the 2020 election was “stolen.” He named Schoen of Atlanta and Castor of Philadelphia as his new lead lawyers on Sunday night. The lawyers’ answer doesn’t cite fraud as a argument but does content that Trump’s statement that he won the election by a landslide wasn’t false.
It also denies that Trump threatened Georgia Secretary of State Brad Raffensperger in a Jan. 2 call by asking him to “find” votes to overturn Biden’s victory in the state, saying the former president meant that if officials carefully examined the evidence, they would find fraud.
Democratic and Republican election officials in every state audited and certified the Nov. 3 results giving Biden an overwhelming Electoral College victory, and more than 60 court cases filed by Trump and his allies to challenge results were rejected – including by federal judges appointed by Trump.
The only honorable path was for Trump to accept the results and concede his electoral defeat, just like every previous losing presidential candidate, the House managers said.
“Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue,” the managers said in their brief.
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