The former president’s lawyers sought to pick apart arguments that will be presented by House impeachment managers prosecuting the case against him at next week’s Senate trial.
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Donald Trump’s legal counsel denied that the former president played any role in inciting the riots at the Capitol and asserted that he exercised his First Amendment rights when making false claims about the 2020 election, pushing back on impeachment managers’ claims that he committed a “grievous betrayal of his oath of office.”
In a 14-page brief filed Tuesday, Trump counsels Bruce Castor and David Schoen sought to pick apart the arguments that will be presented by the House impeachment managers prosecuting the case against the former president for “incitement of insurrection” at next week’s Senate trial. Castor and Schoen argued that Trump was “deprived” of due process with an expedited impeachment and that it doesn’t apply to him since he’s no longer in office. The Democratic managers, meanwhile, alleged that the ex-president’s responsibility is “unmistakable.”
After a two-week delay, Trump’s second impeachment trial will resume next week with oral arguments from the nine House managers and the former president’s defense team. A two-thirds majority of the Senate is needed to convict, but acquittal is looking more likely after a majority of GOP senators voted that an impeachment trial of an ex-president is unconstitutional. If the Senate convicts, Democrats will hold a second vote to bar him from future office.
“The Senate of the United States lacks jurisdiction over the 45th president because he holds no public office from which he can be removed rendering the article of impeachment moot and a non-justiciable question,” Castor and Schoen wrote in their brief.
Castor and Schoen made a broader argument that Trump’s repeated and unsubstantiated claims about the election results are protected free speech under the Constitution and that the single article of impeachment violates the First Amendment. They referenced his comments to the rioters at a rally hours before they swarmed and breached the Capitol, telling them that “if you don’t fight like hell, you’re not going to have a country anymore.”
Democrats have specifically cited those words when condemning Trump for what they argue is “incitement of insurrection.” But Trump’s team denied that his speech had any connection to the Capitol riots, arguing that he was referring to “the need to fight for election security in general.”
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Castor and Schoen argued that Trump had the right to assert his belief that the election results were “suspect since with very few exceptions.” They noted Trump’s issues with voting accommodations put into place because of the coronavirus pandemic. But no evidence of widespread election fraud in the 2020 election was found, and judges across the country dismissed lawsuits alleging such activity.
“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president’s statements were accurate or not, and he therefore denies they were false,” Castor and Schoen wrote. “Like all Americans, the 45th president is protected by the First Amendment.”
The foundation of Trump’s argument against conviction comes just days after a shake-up on his defense team. Castor and Schoen were added to the team over the weekend shortly after news surfaced that Trump parted ways with two attorneys poised to represent him at the Senate trial.
The nine impeachment managers appointed by House Speaker Nancy Pelosi of California also filed a brief on Tuesday laying out their arguments for conviction of the former president and disqualification from him ever holding elected office again.
The managers, led by Democratic Rep. Jamie Raskin of Maryland, argued that Trump made multiple attempts to “subvert” the November election, specifically noting the call with GOP Georgia Secretary of State Brad Raffensperger and the subsequent Capitol riots on Jan. 6.
Democrats have also raised concerns over Trump’s call with Raffensperger in the days before Congress certified the Electoral College vote, asking him to “find 11,780 votes, which is one more than we have because we won the state.” President Joe Biden defeated Trump in Georgia by 11,779 votes. But Castor and Schoen denied that his comments to find the votes were “inappropriate.”
At the trial, the managers are expected to use photos and video footage from the attack as evidence to bolster their case and argue that the 100 senators serve as both jurists and witnesses to the events. And they’re seeking to appeal to their Senate colleagues by arguing that conviction is needed to send a signal to future presidents about how to uphold the peaceful transition of power.
“Failure to convict would embolden future leaders to attempt to retain power by any and all means – and would suggest that there is no line a president cannot cross,” the managers wrote in their 77-page brief. “The Senate should make clear to the American people that it stands ready to protect them against a president who provokes violence to subvert our democracy.”
