On Monday, former President Donald Trump’s lawyers, Bruce L. Castor Jr., and David Schoen, filed the official defense brief for his second impeachment trial, which begins on Tuesday. The brief makes five powerful arguments for the president’s acquittal, eviscerating the Democrats’ case.
“One might have been excused for thinking that the Democrats’ fevered hatred for Citizen Trump and their ‘Trump Derangement Syndrome’ would have broken by now, seeing as he is no longer the President, and yet for the second time in just over a year the United States Senate is preparing to sit as a Court of Impeachment, but this time over a private citizen who is a former President,” the brief notes.
Trump’s lawyers argue that “through this latest Article of Impeachment now before the Senate, Democrat politicians seek to carve out a mechanism by which they can silence a political opponent and a minority party. The Senate must summarily reject this brazen political act.”
In the brief, Team Trump makes five arguments against the Democrats’ impeachment case.
1. The Senate cannot try a private citizen for impeachment
The defense brief echoed Sen. Rand Paul (R-Ky.) and the 44 other Senate Republicans who voted against holding the impeachment trial, claiming that it is unconstitutional for the Senate to try a former president and therefore a private citizen.
“The Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds,” the brief argues. It claims that if the Senate were to bar Trump from holding public office in the future, that would constitute a bill of attainder, “a legislative act which inflicts punishment without a judicial trial,” violating Article I, Section 9 of the Constitution.
The brief argues that the Founders did not explicitly give the Senate the power to try former officials and that the Senate failed to impeach former Senator William Blount and Secretary of War William Belknap. It also notes that Congress refused to impeach Richard Nixon after he resigned. While it notes that British law allows for post-office impeachment, it claims that the Founders did not.
Democrats have made a strong argument that there is no “January exception” for impeachable behavior, but Trump’s team may respond that there are other ways to punish behavior after a president has left office, such as censure.
Tellingly, Team Trump warns that if the impeachment managers have their way in arguing that a person may be impeached at any time after he or she leaves office, “a future House could impeach former Vice President Biden for his obstruction of justice in setting up the Russia hoax circa 2016. While he could not be removed from the Vice Presidency because his term ended in 2017, he could be barred from holding future office. 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 [by mishandling classified information].”
2. Trump’s First Amendment rights
The brief argues that the Democrats’ impeachment would violate Trump’s First Amendment rights as a public official. The Democrat impeachment managers argue that “the First Amendment does not apply at all to an impeachment proceeding,” citing two cases concerning appointed public employees. Team Trump powerfully combats this claim with central free speech precedents.
“The Supreme Court of the United States has long held that the First Amendment’s right to freedom of speech protects elected officials such as Mr. Trump,” the brief explains. It cites the case Wood v. Georgia (1962), in which the Supreme Court ruled that Sheriff James Wood, an elected official who spoke out about voting patterns, “had the right to enter the field of political controversy. … The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”
“The House Managers have built their case against the First Amendment upon the proverbial foundation of sand, and have no support for their argument that Mr. Trump lacks protection under the First Amendment as all Supreme Court authority is directly contrary to their assertion.”
“Even political speech that may incite unlawful conduct is protected from the reach of governmental punishment,” the brief argues, citing Lorillard Tobacco Co. v. Reilly (2001). “Indeed, ‘[e]very idea is an incitement,’ and if speech may be suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State’s censorial power.”
“Rather, the government may only suppress speech for advocating the use of force or a violation of law if ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,'” (emphasis original) the brief notes, citing Brandenberg v. Ohio (1969).
The Trump Team argues that a plain reading of Trump’s speech on January 6, 2021, counters the Democrats’ claim that he “incited” the crowd to violence, much less insurrection. Trump said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard” (emphasis original).
3. Democrats’ “incitement”
In order to bolster Trump’s free speech defense, the brief notes that Trump’s metaphorical use of the term “fight like hell” is well-established. In fact, the brief cites examples of Democrats’ rhetoric that would also constitute “incitement” by the standard of the impeachment article.
“It is truly incredible that House Democratic leadership is feigning horror at the President’s choices of words considering some of their own members recent public comments,” the brief notes.
Team Trump cites House Speaker Nancy Pelosi’s (D-Calif.) statement, “I just don’t even know why there aren’t uprisings all over the country. Maybe there will be.”
“Was she advocating violence? Sending a silent dog whistle to radical protesters? Should she be held accountable for her extremist rhetoric and removed from office?” the brief asks.
The document also cites Rep. Ayanna Pressley (D-Mass.), who said, “there needs to be unrest in the streets” as the Black Lives Matter protests devolved into violent and deadly riots. “Should we hold her liable to pay for all of the businesses that were destroyed when people heeded her call and removed from office?” the brief asks.
Finally, Team Trump cited Rep. Maxine Waters (D-Calif.), who infamously encouraged leftist demonstrators to harass Trump administration staff in public places.
“For those who would say that those quotes must be understood in their greater context, i.e., that they were clearly meant to be political speech- we say exactly. The truth is that both … Mr. Trump’s speech and these comments are acceptable political free speech; it is the double standard at play here that is entirely unacceptable, and Mr. Trump [asks] that the Senate reject it in no uncertain terms,” Team Trump argues.
4. Due process
Team Trump notes that House Democrats rushed the impeachment process after originally calling on Vice President Mike Pence to invoke the 25th Amendment to remove Trump from office. Bizarrely, Democrats waited five days before introducing the impeachment on January 11 and passing the impeachment on January 13.
“House Democrats completed the fastest presidential impeachment inquiry in history and adopted the Article of Impeachment over strong opposition and with zero due process afforded to Mr. Trump,” without an impeachment inquiry or a formal investigation into the Capitol riot.
“No exigent circumstances under the law were present excusing the House of Representatives’ rush to judgment, as evidenced by the fact that they then held the Article for another 12 days,” the brief notes.
5. “Structurally deficient”
Finally, Team Trump argues that “by charging multiple alleged wrongs in one article, the House of Representatives has made it impossible to guarantee compliance with the Constitutional mandate in Article 1, Sec. 3, Cl. 6 that permits a conviction only by at least two-thirds of the members. The House charge fails by interweaving different allegations rather than breaking them into counts of alleged individual instances of misconduct.”
This constitutes a sleight of hand in order to push conviction and removal, Team Trump argues.
These arguments build on claims in the president’s answer to the charges of the impeachment article. Together, they build a strong case for the former president’s acquittal.
While Trump’s arguments about the unconstitutionality of a Senate trial for a former president may be largely moot after the Senate voted 55-45 to take up the case, Team Trump was wise to cite those arguments because they provide Senate Republicans an easy case to make to the American people. While some Republicans may not wish to proactively defend Trump’s statements before the Capitol riot, Team Trump is also right to point out Democrats’ hypocrisy in claiming that Trump’s political speech constitutes incitement while theirs does not.
Democrats are gambling that the trial will make Trump look bad and tie Republicans to him, while Team Trump will use the opportunity to expose Democrats’ hypocrisy on political violence.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.