The House has told the Senate that the nation “cannot simply ‘move on’” without an impeachment trial and conviction of Donald Trump on a charge of inciting an insurrection just because he’s no longer in office — because future presidents would see no harm in trying something similar in their final weeks in office.
“If the Senate does not try President Trump (and convict him) it risks declaring to all future Presidents that there will be no consequences, no accountability, indeed no Congressional response at all if they violate their Oath to ‘preserve, protect and defend the Constitution’ in their final weeks — and instead provoke lethal violence in a lawless effort to retain power,” the House impeachment managers argue in a brief filed Tuesday.
Such a situation would “horrify the Framers, who wrote the Presidential Oath of Office into the Constitution and attached no January Exception to it,” the House wrote.
That argument about the Senate’s obligation seeks to counter arguments from Trump’s impeachment legal team and Senate Republicans, 45 of whom voted last week to support a motion to sweep aside the impeachment trial as unconstitutional because Trump is now a private citizen in Florida.
“I’m confident of the outcome here that we’re going to have more than 45 votes for a motion to dismiss on the idea that this is unconstitutional impeachment pursuing somebody out of office,” South Carolina Republican Sen. Lindsey Graham said Monday on Fox News. “I think the acquittal number will be pretty close. It will be in the high 40s.”
Trump’s legal team heavily relies on that argument in the former president’s formal response to the impeachment charge, also filed Tuesday, which helps set the stage for a Senate trial to start Feb. 9.
Among Trump’s other arguments: that Chief Justice John G. Roberts Jr. is not presiding over the trial, and that the House rushed the impeachment process without a committee review or an offer for Trump to participate, and there was “no legal or moral reason” to rush. Instead the lawyers describe the motivation as “political hatred.”
The Trump brief was addressed to “Members of the Unites States Senate.” The same misspelling of “United” is repeated later in the filing.
On Monday, one of Trump’s lawyers, David Schoen, told Fox News’ Sean Hannity that the impeachment process was “completely unconstitutional” and foreshadowed that the defense team would focus on those process arguments and seek to tamp down plans from House impeachment managers to play videos of the Trump-inspired mob’s attack on Jan. 6.
One Capitol Police officer died in the attack, others were injured, and another shot and killed one insurrectionist who tried to climb through a broken window to the Speaker’s Lobby.
Schoen said that Trump has condemned violence at all times and that his speech to the crowd on the morning of Jan. 6 called for peacefulness.
“This has nothing to do with President Trump,” Schoen said. “And the country doesn’t need to just watch videos of riots and unrest. We need to heal now. We need to move forward.”
But the House impeachment managers, in their brief, wrote that they will argue that “President Trump’s responsibility for the events of January 6 is unmistakable.”
Trump improperly pressured state officials, the Justice Department and members of Congress to overturn the electoral outcome and “sharply escalated his public statements, using more incendiary and violent language to urge supporters to ‘stop the steal’ on January 6,” the House brief states.
The House highlights how Trump “insisted that the election had been ‘rigged’ and ‘stolen,’ and that his followers had to ‘fight like hell’ and ‘fight to the death’ against this ‘act of war,’ since they ‘can’t let it happen’ and ‘won’t take it anymore!’”
“These statements turned his ‘wild’ rally on January 6 into a powder keg waiting to blow,” the House brief states. “Indeed, it was obvious and entirely foreseeable that the furious crowd assembled before President Trump at the ‘Save America Rally’ on January 6 was primed (and prepared) for violence if he lit a spark.”
Trump’s response states that the president exercised his free speech rights under the First Amendment to “express his belief that the election results were suspect.” It repeats Trump’s claims that the cause was state election laws and procedures that were changed “under the convenient guise of Covid-19 pandemic ‘safeguards.’”
“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,” Trump’s lawyers wrote in the response.
Schoen, in the Fox News interview, also said that Trump plans to question the impeachment on free speech grounds, saying that it was “a very, very dangerous road to take with respect to the First Amendment, putting at risk any passionate political speaker, which is really against everything we believe in in this country, the foundation of the First Amendment.”
Graham echoed that argument Monday. “I don’t believe the speech given by the president fits the incitement statute,” the South Carolina Republican said. “And there’s mounting evidence that the people came to Washington, preplanned the attack before the president ever spoke.”
The House impeachment managers attempt to flip that argument against Trump in their brief, writing that a conviction would vindicate First Amendment freedom because “rights of speech and political participation mean little if the President can provoke lawless action if he loses at the polls.”
“President Trump’s incitement of deadly violence to interfere with the peaceful transfer of power, and to overturn the results of the election, was therefore a direct assault on core First Amendment principles,” the House managers wrote.
And the House managers argue that the impeachment is not a partisan matter to reaffirm core constitutional principles.
“His actions directly threatened the very foundation on which all other political debates and disagreements unfold,” the House wrote. “They also threatened the constitutional system that protects the fundamental freedoms we cherish.”