Attorneys for former President Donald Trump on Feb. 8 set out their defense for his Senate impeachment trial, arguing that the Senate has no jurisdiction to try a former official, that the charge against the 45th president is deficient, that their client was deprived of due process and that he further had his right to free speech violated by the article of impeachment.
In the 78-page trial memorandum, the attorneys posit that the Senate taking up the impeachment amounts to a bill of attainder, an act that the Constitution prohibits the legislature from taking because it would amount to inflicting punishment without a jury trial. The defense also contends that the “incitement” accusation is contradicted by the plain text of the transcript of the president’s Jan. 6 speech.
House Democrats, joined by 10 Republicans, voted on Jan. 13 to approve a single article of impeachment against Trump for “incitement of insurrection,” making him the first president to be impeached twice. When the Senate trial opens on Feb. 9, he will become the first former president to stand trial.
The trial memo, authored by Bruce Castor, David Schoen, and Michael van der Veen, states: “The Article of Impeachment presented by the House is unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal. Taken together, they demonstrate conclusively that indulging House Democrats’ hunger for this political theater is a danger to our Republic democracy and the rights that we hold dear.”
The trial is set to begin less than a month into the presidency of Joe Biden and just over a month after a breach of the U.S. Capitol on Jan. 6 as both legislative chambers gathered to vet and certify the Electoral College votes. Trump’s attorneys condemned the violence that took place during the breach and pointed out that the president had done the same in remarks he gave on the day.
The trial is representative of Trump’s enduring hold on Washington as House and Senate lawmakers prepare to engage in hours of presentations, time that Congress could use to deliver on Biden’s campaign promises, including a pandemic relief bill and $2,000 direct payments to Americans. The White House has said Biden believes that Congress can “walk and chew gum” at the same time.
With the exception of a few written statements, Trump himself has remained quiet in the aftermath of becoming blacklisted from Twitter, Facebook, and nearly every other major social media platform.
Democrats allege that the president incited the violence at the Capitol in a speech he delivered near the White House on the same day. In his address, Trump used the words “fight like hell” in reference to his team’s legal efforts around election integrity. The Democrats allege that Trump used the words to incite his followers to commit violence.
“After months of spreading his Big Lie that he won a landslide victory in the 2020 election, leading up to and on January 6, 2021, President Trump summoned, assembled, and incited a violent mob that attacked the Capitol, cost the lives of three police officers and four other people, threatened the Vice-President and Congress, and successfully halted the counting of the Electoral College vote,” the House impeachment managers’ trial memo says.
Of the seven distinct arguments presented in the defense’s brief, one focuses on the substance of the allegations raised in the impeachment article. Trump’s attorneys maintain that the transcript of the speech the president delivered on Jan. 6 contravenes the allegation against him. The defense’s memo presents the excerpts used by the impeachment managers in full context and accuses the Democrats of cherry-picking quotes to fit their accusations.
“It is important to read the speech in its entirety, because the House Managers played shamefully fast and loose with the truth as they cherry-picked its content along with content from other speeches made to other audiences for their Trial Memorandum, desperately searching for incitement and desperate to deflect attention away from the glaring inability to show an insurrection,” the defense memo states.
Castor, Schoen, and van der Veen also point at Democrats who have used the same words as the ones in question from Trump’s speech, including House Speaker Nancy Pelosi (D-Calif.), who has used the word “fight” in reference to election security, and former Senate candidate Stacy Abrams, whose election integrity political action committee is named Fair Fight.
The defense memo also challenges the quality of the evidence presented in the impeachment managers’ brief, pointing out that all but three of the 170 footnotes in the Statement of Facts cite media reports and that nearly half of the brief largely rehashes news reports.
In a formal response to the defense memo, the impeachment managers made a blanket statement disputing every claim.
“The House denies each and every allegation in the Answer that denies the acts, knowledge, intent, or wrongful conduct charged against President Trump. The House states that each and every allegation in the Article of Impeachment is true, and that any affirmative defenses and legal defenses set forth in the Answer are wholly without merit,” the response states.
Senate Majority Leader Chuck Schumer (D-N.Y.) said he reached a deal with Senate Republicans on Feb. 8 on the framework for the trial.
Under the deal, there will be four hours of debate on Feb. 9 about whether the trial should be dismissed. Several weeks ago, 45 GOP senators voted to reject holding the impeachment trial, on the grounds that it is unconstitutional.
Each side will then get 16 hours to present their cases starting at noon on Feb. 10, followed by four hours for senators to question both sides. Should witnesses or documents be subpoenaed, more time may be allotted. The impeachment manager and Trump’s defense team will get four hours for closing arguments.