Trump's Impeachment Trial Brief Had Numerous Problems | Law & Crime
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Top 9 Absurdities, Distortions, and Fails in Trump’s Impeachment Trial Brief

You may have heard the saying, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” The unfettered advocates on Team Trump have raised a fourth course of action in their defense brief on behalf of the former president: lie about everything.

The Donald Trump defense team released their brief Monday, and it’s seventy-eight pages of falsehoods, fantasy, and fiction. It brings the reader on a magical journey through typos (we are once again in the “Unites” States of America) to the “real truth” (as ascertained by those banned from Twitter), and finally to a world in which the First Amendment is an invisibility cloak, shielding its user from all consequences.

Here are some of the more outrageous moments from the brief authored by Bruce L. Castor, Jr., David Schoen, and Michael T. van der Veen, on behalf of former President Trump.

1. They illogically argue that House Dems supported violence at the Capitol, while Republicans looked on in horror.

See if you can follow along with this logic: according to Trump, the House Managers are “glorifying violence” by detailing the specific events of Jan. 6 in their impeachment memo.

In a brazen attempt to further glorify violence, the House Managers took several pages of their Memorandum to restate over 50 sensationalized media reports detailing the horrific incidents and shocking violence of those hours. Counsel for the 45th President hereby stipulate that what happened at the Capitol by those criminals was horrible and horrific in every sense of those words.

Maybe the first rule of Capitol Insurrection is that you don’t talk about Capitol Insurrection? The suggestion that laying out facts in the legal documents underlying  a prosecutorial action amounts to “glorifying” the acts charged is a special kind of lunacy. By that logic, everything  from grand jury indictments to traffic tickets should be thrown out as supporting the behavior they purport to condemn.

2. They insist Trump only used the word “fight” a few times, and he didn’t really mean “fight.”

Trump’s lawyers argue that Trump’s Jan. 6 speech at the Ellipse couldn’t possibly have sparked the insurrection as alleged because he never specifically told anyone to storm the Capitol, and only used the word “fight” a few times.

Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever.

This is some Grade-A, platinum-level gaslighting. Trump’s lawyers argue in favor of a wholesale denial of Trump’s message on grounds that it had been too general. Never mind the context, the lead-up, or the rhetoric; Trump’s speech was just a happy celebration of democracy in action. The frenzied crowd may have repeatedly chanted, “Fight for Trump! Fight for Trump! Fight for Trump!” but neither they nor he had meant “fight” in the literal sense. Rather, “The only reference to force was in taking pride in his administration’s creation of the Space Force,” says the brief.

This argument makes my head hurt. The says-what-he-means-and-means-what-he-says president who was elected for his dazzling powers of plainspokenness didn’t mean the words he clearly uttered. No one could have expected that Americans would actually fight, even though Trump told them they needed to fight and they yelled that they were about to fight. Okay. Sure. *Makes notes to check how similar arguments fared against BLM protesters.*

Certainly, if we’re going to make someone stand trial because of a speech he gave, words matter. But so does context. The mere use of a single word doesn’t constitute per se incitement. Conversely, the absence of a single word isn’t a per se defense.

Here are a few direct quotes from Trump’s speech to the crowd (a speech that was delivered on the heels of two months of unsubstantiated claims of election fraud and massive hyping of the non-existent importance of the Jan. 6 electoral vote count):

“We’re gathered together in the heart of our nation’s Capitol for one very, very basic and simple reason, to save our democracy.”

“We don’t have a free and fair press.”

“After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

“The Constitution says you have to protect our country.”

“And we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country any more.”

“So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give … The Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country.”

Trump’s people won’t be the first defense lawyers to say we should ignore what we heard with our ears or saw with our eyes. Nor will this be the first time we’ve heard that argument emanating from Trump himself. Like abusers so often do, Trump will continue to deny his singular role in the event until the repeated tale of his own victimization is too loud to ignore.

3. They baselessly say Trump can’t be convicted, because House Dems moved way too fast in impeaching him.

Here’s a legal theory that would get you laughed out of 1L Criminal Law: a defense to wrongdoing is that the charging document was drafted too soon after you committed a crime.

The impeachment defense brief casts the timeline as some sort of smoking gun:

“Democrat members of the House Judiciary Committee publically [sic] admitted that they began drafting the Article of Impeachment moments after angry extremists breached the doors of the Capitol.”

I see. So although members of Congress personally witnessed a violent attack on the Capitol, and personally heard the president’s speech leading up to that attack, they aren’t allowed to have opinions about those events unless they first wait a few weeks. If a prosecutor were mugged in the subway, could they bring immediate charges against the mugger? Or must all government officials let crimes against them simmer for a bit first? Asking for a friend.

It’s worth noting that Trump lawyers are not only arguing that the case was brought too quickly, but also that it’s too late for trial.

Trump’s argument here smacks of desperation. Congress’ impeachment power is explicit in the Constitution. Neither the Framers nor anyone since has seriously suggested that there is only one possible road to impeachment. Some wrongdoing is complex and occurs over time; others are immediate and done entirely in public. “High crimes and misdemeanors” can take many forms, as can Congress’ decision to impeach. There is no basis, either in the text of the Constitution or the history of impeachment to support the assertion that Congress cannot exercise swift judgment.

4.  They make the bizarre claim Trump didn’t cause the riot, because some people made plans to attack the Capitol before Jan. 6.

This argument would be amusing if it weren’t so deadly dangerous. According to Trump’s team, the former president couldn’t be responsible for the riot unless the whole thing was an entirely impromptu event. This logic, of course, leaves out the issue of why the rioters were present in the first place.

Trump spent two months whipping his supporters into a frenzy over the need to recapture a stolen America from the clutches of election fraudsters and lunatic liberals. He and his supporters cast Jan. 6 as a day of reckoning in which Mike Pence was the last and final hope to save the Republic. Trump delivered his speech during a peak nexus of both real-world facts and insane pro-Trump rhetoric. Yet, he hopes to convince the Senate to view the speech as a stand-alone event without context or consequence.

The defense brief argues:

“The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse.”

No one — not impeachment managers, not Congress, not even cable-news pundits — is seriously arguing that Trump’s speech was the first and only factor leading to the riot. That some planning may have preceded the speech hardly means the speech “had nothing to do with” the attack.

Indeed, many riots are preceded by a broad set of occurrences before they are triggered by one final action. In this case, a sitting president’s pledges of love and gratitude to rally attendees and instructions to “fight” occurred against a backdrop of planning to interfere with the electoral vote count; that makes Trump more, not less culpable.

Let’s remember, too, impeachment is not a lawsuit or criminal trial. In legal proceedings, stringent standards about proximate cause and superseding events might break the chain of liability to a defendant who acted badly. By contrast, impeachments are political proceedings. Donald Trump will neither be locked up nor forced to pay a judgment if he is convicted; therefore, if the Senate believes his speech to be the match that lit the fire of insurrection, its conclusion is sufficient to support a conviction.

5. They lie about what both legal experts and the Framers say about late-term impeachment.

No president has been impeached after his term has ended. Still, most legal experts (and notably, all the legal experts who specialize in impeachment) appear to support the legality of impeachment trial and conviction after a president is out of office. If you read Trump’s brief, however, you’d get a very different picture as to the generally-accepted legal theories on this issue.

“The Framers could have explicitly included a provision allowing for the impeachment of a former President, but they did not,” argue Trump’s lawyers.  To bolster their interpretation of the Constitution’s language, they cite constitutional law professor Brian Kalt. That would seem like a good plan, except that the brief misrepresents Kalt’s research. Kalt himself tweeted immediately after the brief went public, calling out Trump’s team: “[I]n several places, they misrepresent what I wrote quite badly.”

Kalt isn’t the only one, either. Trump’s brief also argues that Alexander Hamilton would have sided with Trump on the illegality of late impeachment.

I’ve discussed at length how the plain language of the Constitution, the writings of the Framers, and the history of both American and British impeachments support the conclusion that late or post-term impeachments are perfectly legal. Obviously, the mandatory consequence (removal from office) would be inapplicable to someone who had left office, but the discretionary one (disqualification from future office) would still be on the table.

Apart from the legal analysis here, the argument that Trump shouldn’t face consequences for his wrongdoing because he’s no longer the president is a loogie hurled in the face of common sense. As Stephen Colbert analogized, “So you just want to let him off scot-free for insurrection because he’s no longer in power? That’s like acquitting Jeffrey Dahmer because he’s full.”

Trump’s defense team also levies the false charge that an impeachment of Donald Trump would amount to an unconstitutional “Bill of Attainder.”

That’s simply not true. Bills of Attainder are laws that declare someone to be guilty of a crime, before ever giving that person the opportunity to defend themself at a trial. As Senator Sheldon Whitehouse (D-R.I.) pointed out in a tweet, that’s just not what’s going on here. Former President Trump has neither been declared guilty, nor has been denied a trial.

The prohibition against Bills of Attainder relates to criminal law and due process, which is distinct from the political process of impeachment; even, however, if we were to analogize the concept to the impeachment process, Trump’s argument lacks even a modicum of merit. Trump has been charged (in the Articles of Impeachment), and he will receive the process due (a trial before the Senate).

If this were a high-school exam, the question “Trump’s Second Impeachment is a Bill of Attainder” wouldn’t be an “explain why or why not” essay. It would be a True/False question, and the answer would be FALSE.

6. They ridiculously cite extremely sketchy sources as “the real truth.”

To further its assertion that Trump was a mere bystander when insurrection spontaneously broke out at the Capitol, the brief points to the “real truth” as follows:

“The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted.”

Trump’s impeachment brief cites Gateway Pundit pic.twitter.com/Bgs4eKMauz

— Josh Billinson (@jbillinson) February 8, 2021

The brief then cites to a Gateway Pundit article. Little problem, though. Jim Hoft, the founder and editor-in-chief of far-right site Gateway Pundit, was permanently suspended from Twitter Saturday for violating terms of service by spreading falsehoods.

7. They completely mischaracterize impeachment consequences as laid out in the Constitution.

In a frontal assault on common sense, Trump argues that an official convicted after impeachment can only be disqualified from holding future office if he’s also removed from his current one. This assertion just doesn’t square with commonly accepted realities of impeachment law.

Article II, section 4 provides that when convicted, federal officials “shall be removed from office”  — in other words, there’s no discretion. Conviction equals removal. Another clause, Article I, section 3, clause 7 gives additional guidance: “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

This is known as the “disqualification provision,” and it is generally understood as the Framers’ way of emphasizing the non-criminal nature of impeachment. Consequences can include disqualification from future office, but can’t go any farther.

These two clauses are taken together to mean that removal is a floor while disqualification is a ceiling after conviction. However, taken together or separately, there is no rational basis whatever for an interpretation that disqualification requires removal as a condition precedent. The Framers spent a lot of time and effort trying to protect a fledgling nation against tyrants; the idea that they’d have been up for creating a loophole for a president who commits high crimes and misdemeanors in his or her last days in office is a bit off-brand.

8. They argue that the First Amendment absolves Trump of any culpability.

The argument “it’s a free country!” works as well in this context as it does for 6-year-olds sent to the principal’s office. Behavior that is improper doesn’t magically become proper because it includes speech. The brief argues:

“Another roadblock the House Managers use is the legally unsupported idea that because Mr.Trump was an elected official, specifically the President, he has fewer rights under the First Amendment than everyone else in the UnitedStates. This, too, is sophistry. The opposite is true.”

Putting aside the irrelevant matter of whether a sitting president might have fewer rights under 1A than an ordinary citizen, this contention demonstrates purposeful obtuseness. Not all speech is protected; specifically, speech that incites violence is unprotected, whether uttered by a president or anyone else. When a person wields the enormous power that accompanies the presidency before a crowd, that person’s words have a potency far more intense than the statements of an ordinary citizen. Presidents are certainly different from the rest of us. Their calls to “fight” carry more weight and more immediacy than the same words would from other speakers. Trump’s lawyers may wish to ignore that reality, but the Impeachment Managers sure won’t.

Oh, and the House saw this argument coming. That’s why the Articles of Impeachment are directed at Trump’s entire course of conduct, not just his speech.

9. They brought up Hillary’s e-mails.

In what Politico’s Josh Gerstein dubs a “drive-by,” the Trump brief argues that Hillary Clinton could have been impeached for violating the Espionage Act.

“The same flawed logic the House Managers advance could apply to former Secretary of State Clinton for her violations of 18 U.S.C § 793,” the brief warns, “Impeachment cannot and should not be allowed to devolve into a political weapon.”

I honestly thought we were done with “but her emails,” but leave it to Trump to reprise the tiredest song in the catalog. Since Jan. 6, we’ve heard Trump apologists feign astonishment, asking, “should we now impeach George Washington, too?” What Secretary Clinton and President Washington have in common, though, was that they were not impeached while they were still in office. Fun as it may be for Trump’s team to pretend that this has all happened since Trump has been off the clock, that’s just not true. Trump was impeached for a second time on January 13, 2021. At that point, he was still the president, and if you’d like a nice tidy precedent about how the president is the president even on his day in office, check out oldie-but-goodie Marbury v. Madison. If Clinton were still the secretary of state, we could entertain this conversation, but even the Hillary-haters agree that she hasn’t been in office for some time now.

[image via Michael Reaves/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos