Former US President Donald Trump’s hastily assembled impeachment legal team has submitted written arguments in his defence that are threadbare, amateurish and replete with irrelevancies.
Nonetheless, as it stands Trump figures to walk out of the Senate a winner.
The House impeachment managers have filed a persuasive and on-point 80-page brief. It spends 35 pages on a methodical account of facts and evidence that draws a direct — and hard to refute — connection between Trump’s conduct starting in late December and the violent storming of the Capitol that stunned the nation on Jan. 6.
At the same time, the House managers eloquently invoke the broader themes of constitutional principle and historical purpose that justify the House’s impeachment resolution and show that the process Congress is now engaged in is deeply consequential to the republic.
Trump’s lawyers on the other hand, seem to have gotten lost on their way to offering a hasty initial defence for a minor offence in a state trial court, “answering” the House allegations in rote fashion: Their client denies all wrongdoing. The brief‘s response to the contents of the article of impeachment against Trump is mostly “the 45th president denies.”
The shortcomings of the response may reflect delicate negotiations with a truculent client, one who sacked a different legal team over the weekend. The departed attorneys, according to unnamed sources, refused to commit professional suicide by affirming the Trumpian lie that the 2020 presidential election was stolen.
The new Trump team, not surprisingly, isn’t pursuing the Big Lie either. It would not only ensnare them in falsehoods (when attorneys lie professionally, they can lose their licenses), it would add to the contention that Trump supported, even encouraged the insurrection and that it was justified. In other words, it would hurt his case, not help it.
Instead, the former president’s defence rests on a blizzard of nonsense. The brief asserts, for example, that because Trump is out of office, the House’s article of impeachment is “moot and a non-justiciable question” — a court can’t decide it. In fact, most questions in the impeachment realm are “non-justiciable” because the Constitution commits them not to the courts but to the political system, the Senate, for a final decision. What the Senate as a body says about when an impeachment trial can take place, in other words, goes.
The brief further argues that Trump’s incendiary rhetoric on Jan. 6, which the House cites to justify “incitement to insurrection,” was “protected speech,” and that the impeachment violates Trump’s right to “free speech and thought.” That’s another swing and a miss.
The First Amendment has no applicability to an impeachment charge. Many, if not most, impeachable offences by their nature are “speech.” For example, President Richard Nixon’s command to the FBI to stand down in investigating the Watergate affair. The House can surely pursue impeachment if a president’s speech abrogates the president’s duty to uphold and defend the Constitution.
It only gets worse from there.
Trump’s lawyers say the House deprived their client of “due process” by “rushing to issue the Article of Impeachment,” and that a single article of impeachment can’t be valid because it covers multiple actions. Both concepts, again, are borrowed from criminal law; they have no relevance to impeachment. And even if we read the “due process” complaint metaphorically, it’s obvious that Trump is being afforded ample notice and opportunity to defend himself.
The defence also tries to claim that the House impeachment resolution is a “bill of attainder,” a law passed specifically to target an individual for criminal prosecution. Bills of attainder are prohibited by the Constitution, but the brief is grasping at straws. Under its tortured reasoning, any impeachment would qualify as a bill of attainder.
That leaves one final defence. It too is errant, but it is likely to carry the day. In the Tuesday filing, it’s the bare assertion — with no argument from text, structure or history — that the Constitution itself does not permit the Senate to try an official whose term has expired.
But as I’ve said, along with a majority of constitutional scholars, it’s the Constitution that leaves it to the Senate to decide this issue. In at least two historical instances, senators have already allowed impeachment trials to go forward even after the defendant was “removed.” It did it again just days ago by rejecting Sen. Rand Paul’s point of order that sought to dismiss Trump’s second impeachment trial before it could begin.
That’s the right result under constitutional text, practice and history. The House managers’ brief adds to the point with a nice reference. Article 1, they wrote, gives the Senate “sole power to try all impeachments.” Trump was duly impeached by the House, ergo the Senate can try him.
Still, the vote count on Paul’s point of order showed that the “it’s too late” constitutional argument will probably attract sufficient support to prevent Trump’s conviction. A majority of Republican Senators appear ready to ignore text and precedent — as well as the violence they witnessed and lived through — because it will give them a way to wriggle out of passing judgement on Trump’s behaviour.
It is a shame, literally, that any Republican senator would shirk their duty to pass judgement on the merits of the case against Trump. As was true in the 45th president’s first impeachment, Senate Democrats are left to play to the court of history. There they will prevail.
Harry Litman is a noted American lawyer, law professor and political commentator
