The impeachment managers of the House of Representatives filed a lengthy investigation on Tuesday, in which they argued that former President Donald Trump should be sentenced by the Senate for inciting insurrection – and the office of the future federal office was banned.
Trump's team filed its own, shorter filing as the first response to the charges brought against him. They argue that Trump did nothing wrong spending months reversing election results before speaking to a crowd in Washington, DC on Jan. 6 – and that it is unconstitutional to initiate impeachment proceedings against a former president, so even if he did so there is nothing the Senate can do about it.
These two documents are not directly responsive to each other as they were filed around the same time. Trump's pre-trial assignment in his own defense, which may be more extensive, is due on Monday February 8th. The superficial nature of the former president's filing on Tuesday is likely related to the tumult on his legal team with key figures leaving and leaving this weekend, with only lawyers Bruce Castor and David Schoen still on board.
It is unclear how important any of these arguments will actually be (on either side), as senators' decisions on impeachment are often based on their own political calculations. Additionally, it takes 67 senators to be impeached, which means 17 Republicans would have to approve every member of the Democratic caucus – and all but five in the Senate GOP have already sided with Trump's legal team to get one to carry out procedural voting early The vast majority of GOP senators will likely be acquitted.
Trump's arguments against impeachment
The background to Trump's filing is that the former president reportedly wants his lawyers to bring a (false) case that his election was stolen, but they are reluctant to do so directly because it is wrong.
So we get a remarkable word salad like this:
There is not enough evidence for a reasonable lawyer to conclude that the 45th President's statements were correct or not, and he therefore denies that they were incorrect.
Follow that? They are not saying that Trump's statements about Democrats who stole his election are true; They just claim that there isn't enough evidence to convince a "reasonable lawyer" that his claims are false, and "therefore" Trump denies that they are false. As clear as mud.
Trump's team offers various more specific defenses for his behavior, although they are factually questionable. For one thing, they claim Trump had no intention of disrupting Congress's January 6 vote counting of the Electoral College. Apparently, however, he intended to interfere by publicly and privately pressuring Vice President Mike Pence.
They also deny that Trump "made every effort to undermine the confirmation of the 2020 presidential election results," which is completely wrong – he's on tape trying to do just that on a call to the Georgian Foreign Secretary. And they claim that by making false statements about electoral fraud, Trump was simply exercising his “first adjustment right” to “express his belief that the election results were suspect”.
Trump's team, however, is most focused on one argument they keep coming back to – their claim that Trump can no longer be impeached because he is no longer president, and the constitution only allows impeachment proceedings against current federal officials.
This is an argument that Republican senators have taken up, largely for political rather than constitutional reasons. It saves them having to judge Trump's behavior if they can only claim that the process itself is unconstitutional.
However, there is no clear expert consensus on this issue. Some argue that a past president would be a private individual and that impeachment is not intended for private individuals. Others point out, however, that the penalty for being suspended from office is obviously of great importance to former public officials as well – and that it makes little sense for an accused official to evade this ban by resigning before the trial is over. And the Senate ran impeachment proceedings against recently resigned Secretary of War William Belknap in 1876.
Trump's brief initial filing does not attempt to deal with these considerations, but merely insists – even if legal experts disagree on the matter – that it goes without saying that the "plain language" of the constitution forbids a trial against a former president.
The House's arguments for an impeachment conviction
Meanwhile, impeachment executives – nine House Democrats led by Maryland Rep. Jamie Raskin – tabled a full-blown case in which Trump deserves to be convicted of the one impeachment article they approved in which Trump was "inciting insurrection" was accused.
"President Trump has led a violent mob to attack the United States Capitol during the joint session, preventing Congress from confirming Joseph R. Biden Jr. as the winner of the presidential election," the House said in the letter.
They argue that Trump was responsible for triggering the violent storming of the Capitol for several reasons:
He lied for months, claiming without evidence that he was the real winner.
He spoke directly to the crowd, which included many rioters, and got them to "fight like hell".
When the mob attacked the Capitol, Trump condemned Vice President Pence for refusing to prevent Congress from counting votes.
He was slow to take action to contain the mob and condemn its members.
After the House Democrats assert that Trump is responsible, they go on to argue why this crime is so grave that it deserves impeachment – they say it violated his oath of office, was an attack on the democratic process, did the Endanger Congress and even undermine national security.
"President Trump's efforts to increase power by inciting violence against Congress were a grave violation of the oath he swore," write the impeachment managers.
They conclude with a constitutional analysis that they believe supports the idea that the authors intended that former officials may face impeachment trials, and they cite the 1876 trial of Belknap, the former Secretary of War, as an instructive precedent.
Next, Trump's investigation mandate will be due on Monday, February 8th. The trial could begin the next day – Tuesday, February 9th – in the Senate.
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