Briefs Filed In Second Impeachment Trial Of Donald Trump

The House impeachment managers have filed their opening brief in the second impeachment of Donald Trump.

The New York Times reports, Impeachment Case Argues Trump Was ‘Singularly Responsible’ for Capitol Riot:

The House impeachment managers on Tuesday laid out their case against Donald J. Trump, asserting that he was “singularly responsible” for the deadly assault on the Capitol last month and must be convicted and barred from holding public office.

In an 80-page brief filed on Tuesday, the managers outlined the arguments they planned to make when the Senate opens Mr. Trump’s trial next week, contending that the former president whipped his supporters into a “frenzy” as part of a concerted campaign to cling to power. Spinning a vivid narrative of a harrowing day when lawmakers were forced to flee as a violent pro-Trump mob breached the Capitol, the prosecutors also reached back centuries to bolster their case, invoking George Washington and the Constitutional Convention.

“The framers of the Constitution feared a president who would corrupt his office by sparing ‘no efforts or means whatever to get himself re-elected,’” wrote the nine House Democrats, led by Representative Jamie Raskin of Maryland, quoting directly from the 1787 debate in Philadelphia. “If provoking an insurrectionary riot against a joint session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”

Trump’s new team of lawyers filed their response brief.

Trump attorney David Schoen’s appeared on Fox News Monday night to preview some of the arguments. Trump lawyer: Impeachment case ‘undemocratic,’ ill-advised:

Schoen called the case needlessly divisive.

“It’s also the most ill-advised legislative action that I’ve seen in my lifetime,” Schoen said.

Schoen also said, “and that’s about as undemocratic as you can get.”

Excuuuse me? Do you know what is “divisive” and “undemocratic,” you hack? A president who engages in sedition and violent insurrection in a coup d’etat to overthrow the democratically elected government of the United States and install himself as the first tinpot dictator of a banana republic. Only on Trump TV could someone say something so ignorant and detached from reality with a straight face. The American people will not tolerate this nonsense.

The Times continues:

 

In Mr. Trump’s own shorter filing, specked with typos [the “Unites States” Senate – did Sidney Powell write this brief?] and stripped of the former president’s usual bombast, his lawyers flatly denied that he had incited the attack and repeatedly argued that the Senate “lacks jurisdiction” to try a former president. They repeatedly urged an immediate dismissal of the single charge against him, “incitement of insurrection.”

“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,” the lawyers, Bruce L. Castor Jr. and David Schoen, wrote in their 14-page response to the charge.

This weak-ass argument is rejected by the overwhelming consensus of legal scholars, as I have posted about at length. See, House Impeaches Trump For Incitement Of Insurrection (Updated), and An Impeachment Trial Unlike Any Other in History (Updated). (Trump was impeached by the House when he was president. The disqualification from public office sanction necessarily applies to a private citizen after a president has been removed from office – duh!)

Their other broad argument was that Mr. Trump’s remarks on Jan. 6 and in the weeks before were constitutionally protected. While they did not argue explicitly that Mr. Trump had won the 2020 election, as some said he wanted his legal team to do, the lawyers sought to shroud his false claims of widespread voter fraud in free-speech arguments.

They effectively argued that Mr. Trump believed he “won it by a landslide,” and therefore was within his First Amendment rights to “express his belief that the election results were suspect.” His claims could not be disproved, they added, because there was “insufficient evidence.” [Wrong!]

Oh my God! These hack attorneys are actually going with the George Costanza defense?

Excuuuse me? This is not an actual legal defense. Trump’s lawyers must argue the insanity defense, that Donald Trump lacked the mental capacity – that he has a mental defect – to form the necessary intent to commit the crime, and the trier of fact must find that because of the mental defect, Trump did not know either the nature and quality of the criminal act or that the act was wrong. See generally, The Insanity Defense.

The Reality-based World:

President Biden won the election by about seven million votes, and the Electoral College vote 306-232, according to results certified by every state. Dozens of cases Mr. Trump brought alleging voting fraud or improprieties were tossed out or decided against him, many times by Republican-appointed judges, for lack of evidence.

https://twitter.com/marceelias/status/1356698300406239239

Free Speech?

As for the First Amendment “free speech” argument, Constitutional law professor Laurence Tribe Smacks Down Trump Impeachment Team’s Free Speech Defense: Like ‘Being the Fire Chief and Urging a Mob to Burn the Theater Down’:

Harvard constitution law professor Laurence Tribe shot down the Trump impeachment counsel’s signaled First Amendment defense of Donald Trump in next week’s Senate trial for inciting an insurrection. Spinning off the “Can’t yell ‘Fire!’ in a crowded theater” [Supreme Court Justice Oliver Wendell Holmes penned this phrase]  limits of free speech, Tribe compared the former president’s incendiary, false claims to “being the fire chief and urging a mob to burn the theater down.”

Speaking with CNN’s Erin Burnetton Tuesday night, Tribe, who has assisted the House Democrats’ impeachment team, spoke in response to a brief, New York Times interview with Trump impeachment counsel David Schoen. The lawyer cited the former president’s right to speak his mind and shifted the blame for the Capitol riot fully on those allegedly misinterpreted Trump’s comments: “We can’t control the reaction of the audience.”

“It’s a First Amendment defense. Will it hold up?” Burnett asked.

“I don’t think so. It’s a very serious point, but it’s wrong,” Tribe said. “I don’t know anybody who is a stronger First Amendment advocate than I am, but I fully recognize that there is a difference between the right of an ordinary citizen to express herself passionately and the right of someone to run for president, take the oath as president and then stand by the presidential seal in front of the white house and urge an angry mob to burn it down. To go to the Capitol and basically take it over.”

“There’s a big difference between the rights of an ordinary citizen and no citizen will be chilled if a president has been held accountable for what this guy did,” Tribe added. “What’s involved here is like being the fire chief and urging a mob to burn the theater down. That is not freedom of speech. We are not talking about the rights of people to express themselves. We’re talking about getting rid of someone permanently from government when that person is an enemy of government when that person threatens to take it apart.”

To underline the connection between Trump’s escalating rhetoric and the motivations of the Capitol insurrectionists, Burnett then played a clip of the rioters repeating — sometimes verbatim — a number of claims and phrases made by the former president on January 6th and in the days before.

Note: At least six of the 170 people charged in connection with the Capitol siege have tried to shift at least some of the blame onto Trump. ‘He Invited Us’: Accused Capitol Rioters Blame Trump In Novel Legal Defense. Call them as witnesses at the impeachment trial!

Trump Fluffer Sen. Lindsey Graham, who is a coconspirator in Trump’s election theft  scheme, The Georgia Secretary of State Says Lindsey Graham Suggested He Find a Way to Toss Out Select Ballots, and Lindsey Graham’s Alleged Attempt to Toss Georgia Ballots Is Felony Election Fraud, and Former U.S. Attorney Asks Georgia to Investigate Lindsey Graham for Potential Election Crimes, joined Trump’s lawyer in saying “don’t you dare call any witnesses!” The weird threats Lindsey Graham and Trump’s lawyer are making about calling impeachment witnesses: Graham said “If you open up that can of worms, we’ll want the FBI to come in and tell us about how people preplanned this attack and what happened with the security footprint of the Capitol. You open up Pandora’s box if you call one witness.” The suggested implication: If these people preplanned it, that means they couldn’t possibly have been incited by the president. It’s the very definition of a straw-man argument.

“He’s not some guy talking on a street corner. He is the President of the United States,” Tribe reiterated. “Those words echoed by the mob show a direct link and there are pages upon pages of evidence in the trial brief filed by the House managers today detailing in really painful detail how unbelievable it would be to say that the president wasn’t responsible. Liz Cheney thought he was. The Majority Leader thought he was.”

Tribe then wound up the interview by reprising a line used by the House Democratic impeachment managers in their brief to the Senate setting up the incitement of insurrection charge.

“Anybody looking at this evidence would realize that the president riled this mob up, aimed toward the Capitol like a cannon, and fired.”

Philip Bump of the Washington Post adds, Trump’s impeachment attorneys offer a laughable rationalization for his false fraud claims (excerpt):

As expected, the document’s evaluation of Trump’s actions surrounding the violent invasion of the U.S. Capitol on Jan. 6 includes a defense of his claims that the 2020 presidential election was marred by voter fraud.

This [false] assertion from Trump — a constant drumbeat offered from the hours after polls closed on Nov. 3 until the morning of Jan. 6 itself — was the primary trigger for the events of the day. Without Trump’s insistences that he’d won the election when he hadn’t, without his efforts to cast various others as obstacles to his serving a second term in office, there’s no rally at the White House that morning and no crowd of people milling around who would then overrun the Capitol. Had Trump simply accepted his loss and telegraphed it to his base, there would have been frustration and anger. But instead, he continually claimed that the election was being stolen, elevating a truly breathtaking litany of allegations, never stopping to assess their credibility but simply pushing them forward, one man tossing empty sandbags in front of the tsunami of reality.

The article of impeachment passed by the House the week after the insurrection at the Capitol leveraged his Jan. 6 speech as the moment of incitement. It also cited those months of falsehoods about the election, coupled with falsehoods about the ability of Congress or Vice President Mike Pence to overturn his loss as additional factors.

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the two arguments being made here, both of which are terrible, are that Trump was simply exercising free speech in repeatedly claiming that the election was stolen and, second, that the sanctity of the election is unknowable.

The first point is easily dismissed by anyone who has spent more than five minutes considering the First Amendment and its history. By now, your brain should be jumping up and down hollering “Fire in a crowded theater!” for the very good reason that this commonly known (though often misunderstood) scenario serves as a reminder of how the First Amendment is necessarily limited.

In 1969, the Supreme Court articulated a specific exception to the broad right of free speech: “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In other words, speech that incites or is likely to incite lawless action is exempted from the First Amendment. Sort of a flaw in using the First Amendment to defend speech alleged to have incited lawless action.

Impressively, it’s the second argument here, the one about “fraud” itself, that is the worse one.

Trump’s attorneys do two dishonest things one after the other. Trump, they claim, thought that “the election results were suspect” because “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.”

You may notice that one doesn’t follow from the other. State voting laws were changed and … therefore the results were suspect?

What the attorneys are doing, in fact, is conflating two separate lines of argument made by Trump and his allies after the election. The first line of argument offered that the election was incorrectly administered and that, as a result, huge numbers of votes should be thrown out. The second line of argument was that there was rampant fraud undercutting the reliability of the results. The first argument was an attempt to use the law to simply overturn the election, and when it was presented to various courts, it was rejected. The second argument was a claim about rampant coordinated illegality for which there was never any credible evidence presented.

In other words, the attorneys are claiming that what Trump spent weeks alleging — that there was rampant fraud — was instead an argument about the legality of state voting processes. They’re trying to cloak his incendiary and dishonest assertions in the garb of legal consideration and debate. It’s a ridiculous effort easily undone by, say, searching Trump’s tweets from after the election for the word “fraud.” Not a lot of them expressed concern about the mechanisms used to change voting laws.

What’s more, the claim about laws being changed doesn’t stand on its own. The most commonly cited change to the law in a swing state was Pennsylvania’s expansion of mail voting. This was the shift that Sen. Josh Hawley (R-Mo.) used as his rationale for objecting to the counting of electoral votes from that state in the hours after the insurrection. But this wasn’t local politicians changing the rules under the pretext of the coronavirus pandemic. It was, instead, a law passed by the Republican majority in the state months before the pandemic began.

Some, including Hawley, have argued that the law violates the state’s constitution, but after the 2020 presidential election, the chief justice of the state’s Supreme Court wrote that this question shouldn’t affect the millions of votes cast under the new law, since there was no indication that those votes hadn’t been cast by Pennsylvanians in good faith. In other words, the chief justice explicitly broke the connection Trump’s attorneys try to make between how voting laws changed and the results allegedly being suspect.

Then there’s that sentence that should be a midterm exam question for a first-year philosophy course.

“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not,” the attorneys write.

Imagine for a moment that the statements being referred to in that sentence were claims that Martians had built an enormous, invisible city that hovers one mile above Pikes Peak and that realigns itself as needed so that planes or birds don’t hit it. You cannot provide sufficient evidence to debunk this assertion, because it, like the city itself, can simply be warped around any counterpoint you raise. This is why the burden of proof for rhetorical claims falls on the person making the claim. It is not up to the world to prove Trump’s fraud claims false; it is up to him to prove them true. Which, after several months, he’s been completely unable to do.

Again, though, even this assertion is ridiculous. There is enormous evidence allowing someone to conclude that Trump’s statements about fraud are false. For example, there have been several audits and recounts validating the results of the vote. There have been examinations of fraud claims, which have led to their being dismissed. There have been investigations of suspect votes.

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There is a real debate to be had over the extent to which Trump deserves immediate blame for the violence at the Capitol. There is no serious debate, though, over the fact that Trump consistently misled his base about the results of the election and never offered any credible evidence to support his claims that it was stolen. There is no debate that his insistence that he won the election led to a huge crowd of people showing up in D.C. on Jan. 6.

Lawyers are paid to make the best case they can for their clients. If this is Trump’s best case, he’s lucky that nearly half the jurors who will evaluate it are already firmly in his camp.

A “rigged” jury of Trump personality cult menmbers, some of whom are coconspirators and accessories to his crime.