The House of Representatives impeachment managers filed a lengthy pretrial brief on Tuesday, making the case that former President Donald Trump should be convicted of incitement of insurrection by the Senate — and banned from holding future federal office.
Trump’s team submitted their own, shorter filing as an initial response to the charge against him. They argue that Trump did nothing wrong in spending months trying to overturn the election results ahead of his speech to a crowd in Washington, DC, on January 6 — and that even if he did, it’s unconstitutional to have an impeachment trial for a former president, so the Senate can’t do anything about it.
These two documents aren’t directly responding to each other, since they were filed at around the same time. Trump’s pretrial brief in his own defense, which may be more comprehensive, is due this Monday, February 8. The perfunctory nature of the former president’s Tuesday filing is likely related to the tumult among his legal team, with key figures quitting this weekend, leaving only attorneys Bruce Castor and David Schoen still on board.
It’s unclear how much any of these arguments (on either side) will actually matter, since senators’ decisions on an impeachment verdict often come down to their own political calculations. Furthermore, it takes 67 senators to convict in an impeachment trial, meaning 17 Republicans would have to go along with every member of the Democratic caucus — and all but five in the Senate GOP already sided with Trump’s legal team on an early procedural vote, making the vast majority of GOP senators likely to acquit.
The background to Trump’s filing is that the former president reportedly wants his lawyers to make a (false) case that the election was stolen from him, but they’re hesitant to do this outright because, well, it’s false.
That’s how we get a remarkable word salad sentence like this one:
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.
Follow that? They’re not saying Trump’s statements about Democrats stealing the election from him were true; they’re just claiming there’s not enough evidence to persuade a “reasonable jurist” that his claims are false, and so “therefore” Trump denies they’re false. Clear as mud.
Trump’s team offers various more specific defenses of his conduct, though they are factually questionable. For one, they claim Trump had no intention of interfering with Congress’s count of the Electoral College votes on January 6. But he evidently did intend to interfere, because he publicly and privately pressured Vice President Mike Pence to do so.
They also deny that Trump “made any effort to subvert the certification of the results of the 2020 Presidential election,” which is flatly untrue — he’s on tape trying to do just that on a call with Georgia’s secretary of state. And they claim that, in making false statements about voter fraud, Trump was merely exercising his “First Amendment right” to “express his belief that the election results were suspect.”
But Trump’s team focuses most intensely on an argument they return to again and again — their claim that Trump can no longer be subject to an impeachment trial because he is no longer president, and the Constitution only allows impeachment trials of current federal officials.
This is an argument that Republican senators have embraced, largely for political rather than constitutional reasons — it saves them from having to assess Trump’s conduct if they can just claim the trial itself is unconstitutional.
Yet there’s no clear expert consensus on the question. Some argue that, yes, a former president would be a private citizen, and that impeachment is not meant for private citizens. Others point out, though, that the penalty of being barred from future office is obviously quite relevant for former officeholders, too — and that it makes little sense for an impeached official to be able to evade that ban by resigning before their trial concludes. And the Senate did proceed with holding an impeachment trial for the recently resigned Secretary of War William Belknap in 1876.
Trump’s short initial filing does not attempt to deal with these considerations, instead merely insisting — again, despite legal experts disagreeing on the matter — that it’s self-evident that the “plain language” of the Constitution prohibits a trial for a former president.
Meanwhile, the impeachment managers — nine House Democrats led by Maryland Rep. Jamie Raskin — laid out an extensive case that Trump deserves to be convicted of the one article of impeachment they approved, which accused Trump of “incitement of insurrection.”
“President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election,” the House brief reads.
They argue that Trump is responsible for inciting the violent storming of the Capitol for several reasons:
Then, having made their case that Trump bears responsibility, the House Democrats proceed to argue for why this offense is so serious that it merits impeachment — they say it violated his oath of office, was an attack on the democratic process, imperiled Congress, and even undermined national security.
“President Trump’s effort to extend his grip on power by fomenting violence against Congress was a profound violation of the oath he swore,” the impeachment managers write.
They close with some constitutional analysis that they say supports the idea that the framers did intend former officials to be potentially subject to impeachment trials, and they cite the 1876 trial of Belknap, the former secretary of war, as an instructive precedent.
Next up, Trump’s pretrial brief will be due on Monday, February 8. The trial could begin in the Senate the very next day — Tuesday, February 9.