Donald Trump
Photographer: Erin Schaff / The New York Times
Photographer: Erin Schaff / The New York Times
Donald Trump’s lawyers will mount a double defense of the former president in his impeachment trial next week, arguing that the process was hasty and partisan, and that his rhetoric for supporters who later invaded the United States Capitol was constitutionally protected.
A person familiar with Trump’s legal strategy, which is still evolving, said the defense would tackle the allegation that Trump incited violence on Capitol Hill on January 6, which left five people dead. Part of that strategy may involve reports and other evidence that some people in the crowd planned the attack in advance.
Trump’s second unprecedented Senate trial is set to begin next week, and Tuesday is the deadline for his newly reconstituted defense team to present its first response to the House of Representatives’ only impeachment article, accusing him of incitement to insurrection. If Trump or his lawyers fail to appear, Senate rules allow the body to proceed as if it had pleaded not guilty and to judge it without defense.
The House’s impeachment managers, who will sue the case, are due to present their legal pieces on Tuesday as well, taking a first look at their strategy for the trial. Trump’s legal summaries are due next week, and the trial is scheduled to begin on February 9.
With two-thirds of the Senate forced to condemn, at least 17 Republicans would have to vote with all 50 Democrats to declare Trump guilty and potentially disqualify him from office again. In what corresponded to a test vote, only five Republican senators voted with Democrats last week to block an attempt to declare Trump’s impeachment trial unconstitutional.
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Trump adviser Jason Miller said the defense team will meet Tuesday’s noon deadline, although they only took over the case in the last few days after Trump’s first group of lawyers resigned at the end of last week. This legal team, led by South Carolina attorney Butch Bowers separated from Trump because of disagreements over whether to argue Trump’s unmasked restraint that the 2020 election was “stolen”
Reviewing the results of the election would be an “incredibly bad decision” because, while it appears that there are not enough votes from Republican senators to condemn now, that could change, said Jonathan Turley, a law professor at George Washington University, in an interview.
“This is where President Trump can pull defeat from the claws of victory,” added Turley, who testified in Trump’s previous impeachment. “We saw him go against legal counsel and even logic on those occasions”
Photographer: Matt Rourke / AP Photo
The new team, led by David Schoen, from Atlanta, and Bruce Castor, from Philadelphia, is likely to avoid these arguments.
“This is the political weaponization of the impeachment process. There was a hurry at the trial, ”said Schoen in an interview Monday night on Fox News.
The legal team will argue, according to a person familiar with the strategy, that Trump was constitutionally authorized to make his baseless claims about the election at his Ellipse rally south of the White House last month – even though he used some rhetoric. incendiary – before the crowd marched on Capitol Hill while Congress officially certified the votes of the Electoral College, which Joe Biden won 306 to 232.
Previously: Senate vote shows Trump is likely to be acquitted at trial
They will cite the historic Supreme Court decision in Brandenburg v. Ohio, which involved a lawsuit against a Ku Klux Klan leader under state law for making a speech that advocated violence against blacks and Jews, according to a person familiar with the strategy. In that 1969 decision, the high court ruled that speech that advocates even illegal conduct is protected by the First Amendment, unless that speech is likely to produce “imminent illegal action”.
Schoen told Fox News that Trump’s impeachment for his comments to the crowd “is a very, very dangerous path to take in relation to the First Amendment.”
Schoen also said that he expects House officials to show the video of the riot – which he thinks the country did not need to see – and questioned whether senators who have already called for Trump’s sentencing can be impartial jurors. In a separate interview for the Atlanta Journal-Constitution, he suggested that Trump should not be blamed for the actions of the mafia because, “Now there is evidence that much of what happened was pre-planned.”
The defense will also argue that the House rushed the case, which did not include any formal investigation or committee hearings, and postponed the presentation of the impeachment article to the Senate until January 25, after Democrats took control of the chamber.
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Another argument that should be part of Trump’s defense is that trying a president who is now out of office is unconstitutional. It is one that many Republican senators have also done, although a sparse but consistent line of non-presidential impeachments in the past suggests that the Senate has the legal authority to put Trump on trial even after his term ends.
Turley, who spoke at a Republican summons last week just before most senators voted that judging a president who is no longer in office is unconstitutional, argued that Trump’s best defense is not to present one – simply to argue that the trial is unconstitutional and not legitimize it.
– With the help of Erik Larson and David Yaffe-Bellany