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On Tuesday, Trump's lawyers filed his first formal response to the article of impeachment that was approved by the House of Representatives on January 13. Trump was impeached, for the second time, on a single charge: incitement of insurrection.
Trump's response, technically known as an "answer" to the article of impeachment, begins with a misspelling of "United States."
The argument does not improve from there. While Trump's lawyers respond to the article of impeachment section-by-section, much of the five-page document is duplicative. There are three main cycles:
1. It is unconstitutional for the Senate to conduct an impeachment trial because Trump is no longer president.
2. Trump did not tell any lies or do anything else wrong on January 6.
3. Trump's speech on January 6 is protected by the First Amendment.
Let's look at them each in turn.
Is the Senate trial constitutional?
Trump's lawyers do not cite any judicial opinions or historical precedent to bolster their argument that the Senate trial is unconstitutional because Trump already left office. This is probably because the Senate has previously held an impeachment trial months after the official left office.
Instead, Trump's lawyers offer their own textual analysis of the Constitution:
Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution. Article I, Section 3 of the Constitution states “[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an [sic] office of honor…” (emphasis added). 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 presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.
First, Trump's lawyers misquote the Constitution. Article I, Section 3, Clause 7 refers to "any office of honor" not "an office of honor." More importantly, their textual argument makes no sense.
The conjunction "and" does not create "a condition precedent which must occur before." If that's what the Framers of the Constitution wanted to convey, it would be easy to do. The way a "condition precedent" is established in English is through the words "if" and "then." For example: "If a President is removed from office, then the Senate can disqualify the President from any office of honor." But that's not what the Constitution says.
Trump's lawyers also argue that the Constitution "requires that a person actually hold office to be impeached." That's debatable but irrelevant. Trump was impeached by the House of Representatives while he was president. So no one can reasonably question that Trump's impeachment is valid.
Since Trump was impeached while in office, the Senate is empowered to try the case with no limitations. The text of Article I, Section 3, Clause 6 is very clear: "The Senate shall have the sole Power to try all Impeachments."
Was Trump just advocating for "election security"?
The article of impeachment says that Trump incited a mob to insurrection with lies. Specifically, that the election was stolen. Trump's lawyers say no one could reasonably conclude that Trump was lying:
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. 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.
First, Trump did not say "the election results were suspect." Rather, on January 6 at the Save America rally, Trump said that "we won this election, and we won it by a landslide." And Trump did not raise questions about the results because "election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures." Rather, Trump said the election was "rigged." During his speech, Trump claimed that voting machines created extra votes for Biden.
By the way, does anybody believe that Joe had 80 million votes? Does anybody believe that? He had 80 million computer votes. It’s a disgrace.
There is no evidence of any significant fraud in the 2020 election. Trump's lawyers argue that no "reasonable jurist" could conclude Trump's statements were false. But Trump and his allies presented his allegations in numerous lawsuits and lost 64 times. The inclusion of this argument makes it clear that Trump would use any acquittal by the Senate as "proof" that his claims of fraud have validity.
Trump's lawyers also argue that he was not encouraging violence at the Capitol but advocating for "election security."
It is denied that the phrase “if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech.
Trump's lawyers do not mention that, at the end of the speech, Trump directed the crowd to march on the Capitol. "So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol," Trump said.
Is Trump protected by the First Amendment?
Trump's lawyers argue that everything Trump said on January 6 is protected by the First Amendment.
Like all Americans, the 45th President is protected by the First Amendment. 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.
This is a particularly frivolous argument. The First Amendment does not protect your ability to incite an insurrection.
As Joshua Matz and Norm Eisen explained in Politico, "the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements."