Trump lawyers call impeachment trial unconstitutional in laying out defense

Lawyers representing former President Trump on Tuesday detailed the defense they’ll lay out at next week’s impeachment trial, arguing that it is unconstitutional to impeach a former president and that Trump’s speech did not directly lead to the deadly siege on the U.S. Capitol building on Jan. 6.

The defense brief argues that Trump’s speech before a group of supporters, some of whom later sacked the Capitol, was protected under the First Amendment. And it accuses Democrats of depriving Trump of due process by rushing impeachment through the House.

“It is denied that the 45th president of the United States ever engaged in a violation of his oath of office,” the defense attorneys wrote. “To the contrary, at all times Donald J. Trump fully and faithfully executed his duties as the president of the United States and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States while never engaging in any high crimes or misdemeanors.”

The filing from Trump attorneys David Schoen and Bruce Castor is in response to the article of impeachment passed last month by the House accusing Trump of “incitement of insurrection against the Republic he swore to protect.”

Earlier on Tuesday, House Democrats outlined the case they intend to make against Trump, drawing a direct line from the president’s speech to a group of supporters gathered near the White House to the violent mob that later led the assault on the Capitol.

The Democrats said Trump’s speech pointed a “loaded cannon” at the Capitol building and that his behavior “requires” he be convicted and barred from ever holding office again.

“President Trump’s conduct must be declared unacceptable in the clearest and most unequivocal terms,” the Democratic brief states. “This is not a partisan matter. His actions directly threatened the very foundation on which all other political debates and disagreements unfold. They also threatened the constitutional system that protects the fundamental freedoms we cherish.”

Fundamental to Trump’s defense is the idea that the Senate has no jurisdiction to impeach Trump or bar him from running for office again because the trial will take place after he has already left office.

“The constitutional provision requires that a person actually hold office to be impeached,” Trump’s lawyers wrote.

In their own filing, Democrats detailed the way they say the Constitution “vests the Senate with full jurisdiction to hear any valid impeachment case brought by the House for high crimes and misdemeanors.”

Trump’s attorneys also made the case that the president’s speech was protected under the First Amendment, even if the rioters violated the First Amendment with their deadly siege on the Capitol.

“If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all,” Trump’s attorneys wrote.

They also deny that he was in any way responsible for the actions of rioters.

“It is denied that President Trump ever endangered the security of the United States and its institutions of Government,” his lawyers wrote. “It is denied he threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government. It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people.”

In his speech near the Ellipse on Jan. 6, Trump urged his supporters to march on the Capitol to protest the unfolding Electoral College count.

The riots later in the day led to the death of a police officer, vandalization of the Capitol and the evacuation of lawmakers, sending them into hiding and fearing for their lives.

As the mayhem developed and former Vice President Pence sought refuge, Trump tweeted his anger at Pence for not stopping the vote count. Hours later, Trump called for calm but also praised the rioters as “very special” people.

During the speech, Trump also ticked through a litany of false or unproven claims about how Democrats stole the election from him.

In their brief, Trump’s lawyers denied that he made false election claims, arguing that state election laws that were changed amid the pandemic justify some of his claims of a rigged election.

“After the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” Trump’s lawyers wrote. “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.

For their part, the Democratic impeachment managers accused Trump of violating his oath of office, attacking the democratic process, imperiling Congress and undermining national security.

“The Nation will indeed remember January 6, 2021—and President Trump’s singular responsibility for that tragedy,” they wrote in their brief. “It is impossible to imagine the events of January 6 occurring without President Trump creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc.”

Ten Republicans joined all House Democrats to pass the lone article of impeachment last month. Trump’s second impeachment trial will begin in the Senate on Feb. 9.

Last week, 45 of 50 Senate Republicans voted to support dismissing the impeachment trial on the grounds it is unconstitutional to impeach a former president. Seventeen Senate Republicans would have to join all 50 Democrats in order to convict Trump.