Former President Donald Trump’s legal defense against his second impeachment is filled with “absurd constitutional arguments,” Rep. Jamie Raskin (D-Md.), the lead House impeachment manager, reportedly told fellow Democrats on Wednesday. And Democrats are prepared to refute all of them.
The House’s 80-page brief filed with the Senate on Tuesday includes advance rebuttals of every one of the Trump team’s arguments for the trial, which is set to begin next week.
Democrats forcefully rejected the argument that a former president cannot be impeached or tried after leaving office, which will likely be Trump’s central defense. They dismissed the claim that he was simply engaging in free speech, another argument made by Trump’s team. Democrats refuted the argument that Trump did nothing wrong ― as he still claims in his legal filing ― when he ordered his supporters to march on the U.S. Capitol as Congress met to count the electoral votes securing President Joe Biden’s win on Jan. 6.
The House brief contains a detailed description of the events that led up to Jan. 6 and the president’s involvement in inciting the insurrection at the Capitol, but those facts are difficult to dispute. They were broadcast live on television and social media platforms by both the press and the insurrectionists themselves. Many lawmakers were there when it happened.
More complex, though, are the rebuttals of the legal and constitutional issues that Republicans are likely to lean on to acquit the president. Already, many GOP lawmakers have suggested the entire trial should be dismissed.
House Democrats are prepared for those arguments, too. Here’s how they plan to dismantle them.
Ex-Presidents Can’t Be Tried
Trump’s main legal defense is that presidents cannot be impeached or tried once they leave office. Since he cannot be removed from office through impeachment, he cannot be barred from future office, they also argued.
Trump’s lawyers say that “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,” and since Trump is no longer in office, such a punishment is “irrelevant to any matter before the Senate.”
The House impeachment brief contains a 25-page rebuttal of the argument that ex-presidents cannot be impeached and tried. This is the longest section of the House brief. And it specifically anticipates that this attempt to dismiss the impeachment trial will be Trump’s main strategy, given “the overwhelming strength of the case against him.”
It begins by describing the context by which the Constitutional Convention viewed impeachment at the time that the provision was added to the U.S. Constitution. This context is important as it reveals that the Framers of the Constitution presumed that impeachment would apply to former officials, as it did in England and some of the states of the soon-to-be-formed Union.
During the debate over language in the Constitution, Virginia’s George Mason raised the impeachment in England of former Governor General of Bengal Warren Hastings. This high-profile impeachment case was well-known in the former colonies of the British Empire, and it would have been equally well-known among the convention attendees that Hastings was impeached after he left office. When Mason raised this example, no one objected.
The Framers also argued that the point of the impeachment power was to prevent a president from using corrupt means to stay in office or overturn the results of an election.
“The Executive ought ... to be impeachable for ... Corrupting his electors,” statesman Gouverneur Morris said.
“By necessity, this kind of misconduct would usually occur near the end of a President’s term in office,” the House brief states. “Given their intense focus on danger to elections and the peaceful transfer of power, it is inconceivable that the Framers designed impeachment to be virtually useless in a President’s final days, when opportunities to interfere with the peaceful transfer of power would be most tempting and dangerous.”
Impeachment was also designed by the Framers as a deterrent to corrupt behavior by the president. William Davie called it “an essential security for the good behaviour of the Executive,” and James Iredell said it “will be not only the means of punishing misconduct, but it will prevent misconduct.”
But if impeachment could be so easily avoided by a corrupt or lawless president simply resigning from office or committing their crimes at the end of their term, then the impeachment power would have no such deterrent effect.
“The Framers did not commit such a glaring blunder,” the House Democrats’ brief states. “To protect the Republic, they designed the impeachment power to cover anyone who engaged in abuse or corruption while entrusted with public office — thereby ensuring that any wrongdoer’s ‘infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of likely offenses in the future.’”
The Constitution’s Framers were also informed by the constitutions of the various states and how they treated impeachment. In several states, the executive was impeachable only after he had left office. In Virginia, for example, Thomas Jefferson was impeached (and ultimately acquitted) after he left office as governor. By making the president impeachable while still in office, the Framers sought to enact a more expansive impeachment power.
“[T]he Framers saw themselves not as restricting the impeachment power in comparison to the states, but rather as broadening it,” the brief states.
This is proved by the argument put forward by Alexander Hamilton in Federalist No. 69. The president, Hamilton wrote, “would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.” The governor of Delaware could be impeached only after leaving office, meaning that Congress’s power to impeach the president while in office was an expansion of the impeachment power in that state.
The House Democrats went far beyond Trump’s brief in laying out the Constitution’s impeachment powers. Trump’s brief mentions only one of multiple sections that define the impeachment power. The House’s brief explains them all.
The only clause that Trump’s lawyers cite from Article I of the Constitution is: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
As the House brief notes, the Constitution doesn’t state that both punishments must happen. It just offers them both as options.
“[T]he Constitution did not confer a right on the accused to escape trial entirely because one of the penalties is unavailable,” the House brief states. “If a defendant made that contention in court, her argument would be rejected out of hand.”
Trump’s defense conveniently excludes another part of the Constitution: Article I, Section 3, Clauses 6 and 7, as House Democrats note in their brief (emphasis theirs):
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The bolded words here, “Person” and “Party,” are broader than other terms used in the impeachment clause in Article II, which references “all civil Officers of the United States.”
Trump’s defense relies on the argument that because he is a former civil officer, rather than a current one, he can’t be convicted. The fact that the Framers do not reference “civil officers” in this portion of the Constitution suggests they did not want to restrict punishment to current officials, Democrats argue.
“That leaves only a single possible explanation for why the Framers used ‘Person’ and ‘Party’ rather than ‘civil Officers’ in Article I, Section 3: they wanted to ensure that the text of the Constitution covered the impeachment, conviction, and disqualification of former officials for high crimes and misdemeanors committed while they were in office,” the House brief states.
As for the impeachment clause in Article II, which reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” it should not be read to solely apply to “civil Officers,” House Democrats argue, noting that Article I uses broader language and the Framers were working from a tradition that covered former officials.
Congress has already impeached former officials, as the House brief notes, including ex-Sen. William Blount in 1798 and ex-Secretary of War William Belknap in 1876, and provides the context that existed at the time the impeachment power was debated at the Constitutional Convention.
In both cases, the Senate held impeachment trials for former officials and did not vote that such trials were impermissible. In Blount’s case, the Senate voted to dismiss the impeachment based on the understanding that members of Congress could not be impeached. For Belknap, the Senate voted 37-29 to affirm that former officials may be impeached after leaving office and that the Senate, therefore, had jurisdiction to hold a trial.
Unlike the Blount and Belknap cases, however, Trump was impeached while in office. This places his case on even stronger grounds than those precedents.
The First Amendment
Outside of the question of whether a former president may be tried for impeachment, Trump’s lawyers aim to argue that Trump cannot be penalized for inciting his supporters to insurrection because that would infringe on his First Amendment right of free speech.
“Like all Americans, the 45th President is protected by the First Amendment,” Trump’s brief states. “Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation. If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”
Such an assertion of First Amendment free speech rights is absurd on its face, the House brief argues. “[T]he First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.”
Trump was not a private citizen when he called on his supporters to march on the Capitol and “fight like Hell or you’re not going to have a country anymore.” He was the president of the United States.
“[T]he notion that a President can attack our democracy, provoke violence, and interfere with the Electoral College so long as he does so through statements advocating such lawlessness would have astonished the Framers,” the House brief says.
Private citizens and government officeholders are held to a different standard when it comes to an assertion of First Amendment protections.
“As the leader of the Nation, the President occupies a position of unique power,” the House brief says. “And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests.”
Bill of Attainder
Trump’s lawyers also claim that any conviction of the former president would amount to a “bill of attainder,” or a punishment enacted by a legislature targeting a single private citizen without trial.
But Trump is facing an impeachment trial in the Senate under rules enacted under the Constitution for official acts that constitute high crimes and misdemeanors committed while in office as the president. And he was impeached by the House of Representatives for these acts while in office.
“There is thus no basis for President Trump to object to the Senate’s jurisdiction over him (or to raise related Bill of Attainder Clause concerns),” the House brief states. “The trial of a former official for abuses he committed as an official — arising from an impeachment that also occurred while he was in office — poses no risk of subjecting private parties to punitive legislative action targeting their private conduct.”
Chief Justice John Roberts Will Not Preside
Finally, Trump’s lawyers argue that any impeachment trial where Chief Justice John Roberts does not preside is not a legitimate trial as the Constitution mandates the chief justice preside when the president is impeached.
“When the President of the United States is tried, the Chief Justice shall preside… ,” the Constitution states.
But Trump is no longer the president. The Constitution does not provide for more than one president at a time. Biden is the president. Since Trump is not the president anymore, the chief justice need not preside.
“Moreover,” the House brief states, “the reason the Chief Justice is summoned is to ensure the Vice President does not preside over a trial where conviction would result in her becoming the President; obviously, that concern is not implicated in the trial of a former president.”