Constitutional Law

Trump impeachment brief cites First Amendment, says call to fight referred to quest for election security

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Former President Donald Trump’s lawyers maintain that he was exercising his First Amendment rights, rather than inciting a riot, when he spoke to a crowd before the Jan. 6 attack on the U.S. Capitol.

In a brief filed Tuesday, the lawyers argue that Trump’s remarks were protected by the First Amendment, and the impeachment power doesn’t apply to a president who is no longer in office.

Politico, the Washington Post and the New York Times have coverage.

The defense brief maintains that Trump’s remarks about the election merely expressed a belief “that the election results were suspect.”

The belief stemmed from changes to state election laws and procedures during the COVID-19 pandemic that didn’t get necessary approvals from state legislatures, the brief says.

“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,” the brief says.

Trump’s exhortation to the crowd—“If you don’t fight like hell, you’re not going to have a country anymore”—was about the need to fight for election security in general and not a call for destructive behavior, the brief says.

The brief also argues:

• The Senate lacks power to remove Trump. The constitutional language—that a president and other office holders “shall be removed from office” for high crimes and misdemeanors—would not apply to a past president, the brief argues.

• Trump has been deprived of due process through a rush to judgment and maneuvers that allowed an ally to preside in the Senate trial, rather than U.S. Supreme Court Chief Justice John G. Roberts Jr.

• The impeachment article wrongly lumps together multiple allegations.

The lawyers filing the brief for Trump are former prosecutor Bruce L. Castor Jr. of Philadelphia and Alabama lawyer David Schoen, who formerly represented Trump adviser Roger Stone.

The brief filed by House impeachment managers argues that Trump attacked the democratic process, incited insurrection, imperiled Congress and undermined national security.

Trump spent months asserting, without evidence, that he won in a “landslide” and the election was stolen, the House brief says.

“He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the nation’s continued existence.”

By the day of the rally, the brief says, Trump “had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result—and as had been widely reported—the crowd was armed, angry and dangerous.”

Addressing the crowd, Trump “whipped it into a frenzy, exhorting followers to ‘fight like hell [or] you’re not going to have a country anymore,’” the brief says. “Then he aimed them straight at the Capitol, declaring: ‘You’ll never take back our country with weakness. You have to show strength, and you have to be strong.’”

The House brief asserts that the Senate had jurisdiction to try Trump because he was in office at the time that the House impeached him. The brief says the constitutional language providing that the Senate “shall have the sole power to try all impeachments” contains no limitation that the target be a sitting official.

Allowing Trump to avoid a Senate trial would mean that future presidents could commit impeachable offenses during their final days in office without accountability, the House brief says.

“There is no ‘January Exception’ to impeachment or any other provision of the Constitution,” the House brief says. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”

See also: “Among those calling for Trump’s removal are Crowell & Moring and more than 6,500 lawyers” “Chief Justice Roberts won’t preside in Trump’s second impeachment trial; what does the Constitution say?” “Who will defend Trump in second impeachment trial? ‘He’s not going to get the A team,’ one prof says” “House introduces article of impeachment accusing Trump of ‘incitement of insurrection’” “Butch Bowers will no longer be a lead attorney in Trump’s upcoming impeachment trial” “ABA president condemns mob assault on Capitol as Rep. Gohmert asks SCOTUS to stop Pence”

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