The impeachment team for former President Donald Trump filed its response to the House’s article Tuesday, claiming that Trump is being deprived of his rights and that the whole exercise is unconstitutional anyway.
Here are the highlights:
1. Trump lawyers claim wholesale unconstitutionality, in lockstep with Senate Republicans.
If there was any doubt that Trump’s team and Senate Republicans are reading from the same playbook, the eerily similar arguments in Trump’s impeachment response leave no doubt.
Trump lawyers Bruce L. Castor Jr. and David Schoen rehashed the argument in almost every paragraph of their response, claiming that Trump cannot be impeached because he has left office.
“Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with ‘disqualification’ to hold future office, the fact that the Senate is presently unable to remove the 45th president whose term has expired, means that Amendment I is therefore irrelevant to any matter before the Senate,” they wrote.
In reality, in the debate over whether a former president can be impeached, the vast majority of constitutional scholars have come down on the “yes” side. Some pointed out to TPM that if it’s unconstitutional to finish impeachment proceedings for a former official, any office-holder under scrutiny could just resign moments before the Senate vote and save himself. Many also pointed to the historical precedent of William Belknap, Secretary of War, who was impeached and tried after he left office.
Republicans have been amplifying the voices of the few constitutional scholars who disagree, inviting one to their caucus lunch in recent weeks.
2. They complain that Leahy, a “partisan,” will be presiding over the trial.
Patrick Leahy (D-VT), president pro tempore of the Senate, will be presiding over the trial instead of Supreme Court Chief Justice John Roberts like last time. TPM has been told that senators preside when the office-holder under trial is not the current president.
Trump’s lawyers took issue with Leahy’s role.
“…the constitutional mandate for the Chief Justice to preside at all impeachments involving the President evidently disappeared, and he was replaced by a partisan Senator who will purportedly also act as a juror while ruling on certain issues,” they wrote.
This too is a complaint already aired by Senate Republicans. Sen. Rand Paul (R-KY), in his speech preceding a vote on his motion to dismiss the trial on the grounds of unconstitutionality, railed against a “partisan” acting as judge.
Leahy has sternly dismissed the backlash, telling reporters that “I’m not presenting the evidence, I’m making sure that procedures are followed. I don’t think there’s any senator who, over the 40-plus years I’ve been here, would say that I’ve been anything but impartial in ruling on procedure.”
3. They accuse the House of making the article as “broad as possible.”
Trump’s lawyers complain that the House made the single article of impeachment “as broad as possible,” an attempt, they say, to lasso in as many senators as possible to reach the two-thirds needed to convict.
“[The House] chose to make the Article as broad as possible intentionally in the hope that some Senators might agree with parts, and other Senators agree with other parts, but that when these groups of senators were added together, the House might achieve the appearance of two thirds in agreement, when those two thirds of members, in reality, did not concur on the same allegations interwoven into an over-broad article designed for just such a purpose,” they wrote.
They somewhat snarkily suggest that the supposed sloppiness of the article may not stem from “nefarious” motivations, but from the haste in the House’s writing of the article, which they say has deprived Trump of his due process.
In reality, House Democrats could have written the article however they wanted — netting 17 Republicans to join in the conviction of Trump seems unlikely. A vote on Paul’s resolution about the constitutionality of the trial suggested that only a handful of Republicans will ultimately join the Democrats.
4. They use a freedom of speech argument to sneak in some election fraud claims.
Trump’s lawyers argue that his pre-insurrection speech — in which he encouraged the Stop the Steal rally-goers to “fight” for the election, and promised he’d be with them in the march to the Capitol — is protected speech under the First Amendment.
The freedom of speech argument also helped them slip in Trump’s voter fraud claims. Trump’s first raft of legal representation reportedly quit over his insistence that they focus their defense on rehashing the claims.
“It is admitted that 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,” they 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,” they added.
5. “Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States.”
Here, Trump’s personal life philosophy made its way into the response. The lawyers wrote this sentence as part of the argument that the House robbed Trump of his due process in its haste to impeach him.
Bonus: The Perpetual Typo
It’s no “plenty of perjury,” but there it is:
Read the full document here: