House impeachment managers said in a brief filed Tuesday that former President Trump “summoned a mob to Washington, exhorted them into a frenzy and aimed them like a loaded cannon down Pennsylvania Avenue,” putting everyone on Capitol Hill in grave danger.
Trump‘s lawyers, however, claimed that whatever statements he made to his supporters were protected by the 1st Amendment. In their initial response to the charges in his second impeachment, the lawyers also argued that the Constitution does not allow the Senate to try the case because he no longer holds office.
The impeachment case is a legal “nullity” since “the 45th president cannot be removed from an office he no longer occupies,” the lawyers wrote.
Trump’s supporters in the Senate have urged him to stress the argument that the Senate no longer can try him. It allows Republicans to side with him without having to endorse his conduct.
Last week, all but five Republican senators backed a procedural vote aimed at dismissing the impeachment trial on those grounds, strongly indicating that the Senate will not have the votes to convict Trump. At least 17 Republicans would need to vote for conviction to succeed, assuming all 50 Democrats vote against Trump.
The House impeached Trump last month, before he left office, on grounds that he had incited an insurrection by urging his supporters to march to the Capitol Jan. 6 as lawmakers met to confirm President Biden’s electoral victory. The mob broke into the building in a melee that left five people dead, including a Capitol police officer.
In their 80-page brief, House prosecutors argued that Trump bears “unmistakable” responsibility for the riot because he whipped supporters into a frenzy by claiming for months that the election was being stolen and there was no recourse left but to fight.
“The gravity of President Trump’s offense is magnified by the fact that it arose from a course of conduct aimed at subverting and obstructing the election results,” they wrote. “President Trump is personally responsible for inciting an armed attack on our seat of government that imperiled the lives of the vice president, members of Congress and our families, and those who staff and serve the legislative branch.”
The House prosecutors, who filed their brief a couple of hours before Trump’s lawyers, anticipated the defense arguments and devoted considerable efforts to rebutting them in advance.
They pointed to historical impeachments in the early American colonies, and in Britain, after a person left office. Those examples, they said, would have informed the Founding Fathers’ understanding of how impeachment would be used and make clear that an impeachment trial can take place after the president has left office.
Trump’s lawyers, Bruce L. Castor Jr., a former Pennsylvania prosecutor, and David Schoen, a defense attorney based in Atlanta, only signed up for the case in recent days after the former president parted ways with a team of attorneys headed by Butch Bowers, an attorney from South Carolina.
Several news organizations have reported that Trump wanted Bowers and his colleagues to repeat Trump’s false claim that the 2020 election had been stolen from him but that they refused to do so.
In their response to the impeachment, Castor and Schoen stopped short of endorsing Trump’s claim, while making clear that he still holds to it.
“The 45th president exercised his 1st Amendment right under the Constitution to express his belief that the election results were suspect,” they wrote. “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president’s statements were accurate or not, and he therefore denies they were false.”
The House managers in their brief argued that the 1st Amendment does not protect Trump in an impeachment. Many statements that would be legally protected if an average citizen made them can still amount to an abuse of power when uttered by a president, they said.
“The 1st Amendment does not constrain Congress from removing an official whose expression makes him unfit to hold or ever again occupy federal office,” they added.
In addition to denying that Trump’s statements to the crowd before the assault were designed to incite violence, the lawyers also denied that Trump did anything wrong in a Jan. 2 telephone call in which he told Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn that state’s election results.
Trump “was expressing his opinion that if the evidence was carefully examined,” the necessary votes would be found, they said. They added that “it is denied that President Trump threatened Secretary Raffensperger” or that he “acted improperly in that telephone call in any way.”
The main emphasis of their submission, however, was the claim that the Senate can no longer try Trump because “the Senate has no jurisdiction” now that he is out of office.
That claim is a matter of considerable debate. The Constitution does not explicitly state that impeachment is reserved for current officeholders, though removal from office is the primary remedy. The Senate has once before held an impeachment trial of an official who had already resigned.
Democrats and many constitutional scholars say presidents should not be protected against impeachment simply because their crimes occur in the final days of their term. Accepting Trump’s argument would amount to giving presidents free rein to commit any impeachable acts they want as long as they did them late enough in their tenure, House managers said.
Moreover, they noted, the House vote to impeach Trump took place while he was still in office and was therefore clearly constitutional.
The Constitution says that the Senate “shall have the sole power to try all impeachments,” they noted. “This clause contains no reservation or limitation,” they wrote.
“There is no ‘January exception’ to the Constitution that allows a president to organize a coup or incite an armed insurrection in his final weeks in office,” the managers said in a statement released with the brief.
They said Trump’s behavior was so egregious that it requires permanent disqualification from office, something also allowed as a punishment if he is convicted.
“This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior,” they state in the brief.
