The impeachment administrators of the House of Representatives filed a lengthy pre-trial document on Tuesday, arguing that former President Donald Trump should be convicted of inciting insurrection by the Senate – and banned from holding a future federal office.
Trump’s team filed its own, shorter lawsuit as an initial response to the prosecution against him. They argue that Trump did nothing wrong by spending months trying to overturn the election results before his speech to a crowd in Washington, DC, on January 6 – and that even if he did, it is unconstitutional to have an impeachment trial. of a former president, then the Senate cannot do anything about it.
These two documents do not respond directly to each other, as they were filed at the same time. Trump’s pre-trial briefing in his own defense, which may be more comprehensive, is due this Monday, February 8. The superficial nature of the ex-president’s request on Tuesday is probably related to the turmoil among his legal team, with key figures giving up this weekend, with only lawyers Bruce Castor and David Schoen still on board.
It is unclear how much any of these arguments (on both sides) will really matter, as senators’ decisions on an impeachment verdict often boil down to their own political calculations. In addition, 67 senators are needed to be convicted in an impeachment trial, which means that 17 Republicans would have to agree with all members of the Democratic caucus – and all but five in the Senate, the Republican Party has supported the legal team of Trump in an initial procedural vote, making the vast majority of Republican senators likely to absolve them
Trump’s arguments against an impeachment conviction
The background to Trump’s action is that the former president wants his lawyers to make a (false) case that the election was stolen from him, but they are hesitant to do so openly because, well, it is false.
This is how we get a notable salad phrase like this:
There is insufficient evidence that a reasonable lawyer could conclude that the 45th president’s statements were accurate or not, and he therefore denies that they are false.
Follow that? They are not saying that Trump’s statements about Democrats stealing his election were truth; they are just claiming that there is not enough evidence to persuade a “reasonable lawyer” that their claims are false and therefore “therefore” Trump denies that they are false. Clear as mud.
Trump’s team offers several more specific defenses of his conduct, although they are factually questionable. On the one hand, they claim that Trump had no intention of interfering with Congress’ counting of votes from the Electoral College on January 6. But he evidently intended 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 totally false – he is recording a tape trying to do just that in a call with the Georgia secretary of state. And they say that by making false statements about electoral fraud, Trump was only exercising his “First Amendment right” to “express his belief that the election results were suspect”.
But the Trump team focuses more intensely on an argument they repeatedly return to – 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 federal officials current.
This is an argument that Republican senators have embraced, largely for political and non-constitutional reasons – saves them from having to assess Trump’s conduct if they can simply claim that the trial itself is unconstitutional.
However, there is no clear consensus from experts on the issue. Some argue that, yes, a former president would be an ordinary citizen, and that the impeachment is not aimed at private citizens. Others point out, however, that the penalty of being barred from a future position is obviously quite relevant for former job holders as well – and that it doesn’t make much sense for a dismissed employee to be able to escape that ban by resigning before his trial ends. And the Senate proceeded with an impeachment trial for the recently resigned War Secretary William Belknap in 1876.
Trump’s brief initial request does not attempt to deal with these considerations, instead he merely insists – again, despite legal experts disagreeing on the issue – that it is clear that the Constitution’s “simple language” prohibits a trial for a former president.
The House’s arguments for an impeachment conviction
Meanwhile, impeachment administrators – nine House Democrats led by Maryland MP Jamie Raskin – have laid out an extensive case that Trump deserves to be condemned for the only impeachment article they passed, which accused Trump of “inciting insurrection.”
“President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thereby preventing Congressional confirmation of Joseph R. Biden Jr. as the winner of the presidential election,” says the House report.
They argue that Trump is responsible for inciting the violent invasion of the Capitol for several reasons:
- He spent months lying and claiming without proof that he was the real winner of the election.
- He spoke directly to the crowd that many protesters were part of and urged them to “fight like hell”.
- While the crowd was attacking the Capitol, Trump condemned Vice President Pence for refusing to try to block Congress from counting electoral votes.
- He was slow to take action to control the mob and condemn its members.
So, having argued that Trump has a responsibility, House Democrats argue why this crime is so serious that it deserves impeachment – they say it violated his mandate oath, it was an attack on the democratic process, it put Congress in danger and even undermined national security.
“President Trump’s effort to extend his hold on power by fomenting violence against Congress was a profound violation of the oath he took,” write impeachment administrators.
They end with some constitutional analyzes that claim to support the idea that the authors intended ex-officials to potentially be subject to impeachment trials, and cite the 1876 trial of Belknap, the former war secretary, as an instructive precedent.
Then Trump’s pre-trial summary will be on Monday, February 8. The trial may begin in the Senate the next day – Tuesday, February 9.