Trump’s Lawyers Call His Impeachment Flawed and Unconstitutional

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  • Bloomberg Quicktake: Now published this video item, entitled “Trump’s Lawyers Call His Impeachment Flawed and Unconstitutional” – below is their description.

    The impeachment of Donald Trump for his words and actions before a mob stormed the Capitol was “substantially flawed,” is unconstitutional and should be dismissed, the former president’s lawyers argued Tuesday in an initial response to the House’s single article of impeachment.

    House impeachment managers, in their initial argument submitted earlier Tuesday, said there is no question that Trump incited an insurrection at the U.S. Capitol in an effort to stop the peaceful transfer of power.

    But the Senate has no jurisdiction to try the case now that Trump is no longer in office, Trump attorneys David Schoen and Bruce L. Castor Jr. responded in their filing. The speech that Trump gave on Jan. 6 before a mob of supporters stormed the Capitol is protected by the First Amendment, and Trump’s due process rights were violated by the snap impeachment, they said.

    “Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States,” the lawyers said in their 14-page reply.

    The nine House impeachment managers filed an 80-page brief Tuesday anticipating the arguments that Trump would use in his defense and outlining their case for the single charge of inciting an insurrection when a mob of Trump supporters stormed the Capitol on Jan. 6 as Electoral College votes were being ratified. The violent siege left five people dead.

    House managers said that Trump and his allies sought to overturn his Nov. 3 election loss to Democrat Joe Biden, that the former president falsely alleged a massive Democratic conspiracy to steal the election and that he tried unsuccessfully to get courts and elected Republicans to intervene. When those efforts failed, he incited the attack on the Capitol, the brief said.

    “President Trump’s responsibility for the events of January 6 is unmistakable,” the managers said in their brief. “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.”

    Tuesday was the deadline for House managers to file their trial brief and for the former president’s legal team to file its reply to the Jan. 13 House impeachment. Trump’s Senate trial for his second impeachment is set to begin next week.

    With two-thirds of the Senate needed for a conviction, at least 17 Republicans would have to vote with all 50 Democrats to find Trump guilty and potentially disqualify him from holding office again. In what amounted to a test vote, only five Republican senators voted with Democrats last week to block an effort to declare Trump’s impeachment trial unconstitutional.

    The former president’s legal team argue that the trial is unconstitutional because Trump is no longer in office and that his speech to a crowd of supporters did not incite the violence and is protected by the First Amendment.

    “It is denied that President Trump incited the crowd to engage in destructive behavior,” Trump’s lawyers wrote. “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.”

    The House managers rejected the notion that Trump could argue that even speech advocating illegal conduct is protected by the Constitution, saying “the First Amendment does not constrain Congress from removing an official whose expression makes him unfit to hold or ever again occupy federal office.”

    They also disputed that Trump cannot be convicted because he is no longer in office, saying that he was still president when the House voted to impeach him. Invoking the authors of the Constitution, they argued there can’t be an impeachment exception for actions taken right before a president leaves office.

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