Consider this an exercise in box-checking and not much more. This has the exact same chance of succeeding as the trial itself. Donald Trump’s attorneys laid out the multiple arguments for the unconstitutionality of tomorrow’s impeachment trial and demand a dismissal motion up front.
After that, we’ll have a first-class trial anyway!
Attorneys for former President Donald Trump on Monday argued in a new brief that the Senate should quickly dismiss the impeachment article filed against him when his trial begins this week.
The 78-page document amounts to a more detailed version of the arguments presented in a filing last week from David Schoen and Bruce Castor, who are representing the former president in the Senate.
The two argue that Trump’s post-presidency trial is unconstitutional, and that even if senators disagreed, Trump’s speech ahead of the Jan. 6 riots at the Capitol was protected by the First Amendment and did not meet the threshold of an impeachable offense.
Trump’s lawyers accused Democrats in the brief of attempting to “silence a political opponent and a minority party” through a “brazen political act,” arguing the second impeachment proceedings against the former president failed to give him due process.
“The Article of Impeachment presented by the House is unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal,” the attorneys wrote. “Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic democracy and the rights that we hold dear.”
That last sentence and its lack of punctuation created some pedantic criticism of the defense team. At least they spelled everything correctly this time:
This is the opposite of the Oxford Comma.
— Ed Morrissey (@EdMorrissey) February 8, 2021
Comma faults aside, this eclipses the initial 14-page response to the impeachment. The Washington Post reports that Trump’s team will argue that Democrats are attempting to criminalize political speech in the impeachment, as well as insist that the Constitution does not grant the Senate any authority to try a private citizen. Their main thrust, however, is political:
The 78-page filing is the most complete legal defense of Trump’s conduct to date, and it relies heavily on a challenge to the constitutionality of impeaching a former president, as well as a First Amendment defense of Trump’s rhetoric leading up to the riot — which sought to disrupt the final congressional certification of Trump’s loss.
But, mindful that they need only convince 34 Republican senators to secure an acquittal, Trump’s lawyers also cast their defense in a political light — calling the rapid impeachment effort the culmination of a long Democratic campaign to marginalize Trump.
“The Senate must summarily reject this brazen political act,” Trump attorneys Bruce L. Castor Jr., David Schoen, and Michael T. van der Veen wrote, calling the lone impeachment article “unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal.
“Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic, democracy and the rights that we hold dear,” they added.
Nice of the Post to insert the comma in the correct place — even if they skipped the Oxford Comma. Come on, man …
Anyway, the dismissal demand is almost certainly a non-starter. Joe Manchin might be the only Democrat in the Senate inclined to think that a trial is a bad idea, but it seems doubtful that they’d get him to dismiss it outright. Besides, the earlier procedural vote on Rand Paul’s point-of-order motion on these same points showed a handful of Republicans willing to go along with a trial, even if it also showed the eventual futility of the event.
Watch for the vote breakdown on the dismissal vote, though. If any of this has gained traction with Senate Republicans, we should see more aisle-crossers on the dismissal motion. If not, then the outcome is as inevitable as the trial itself.
Addendum: I linked the conservative rebuttal to Trump’s constitutional arguments in my earlier post, but it’s worth noting here too. Chuck Cooper points out in the Wall Street Journal that disqualification clearly only applies to ‘former’ federal officeholders, which cuts against this motion:
If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling. But it isn’t. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”
That punishment can be imposed only on former officers. That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction. The formal Senate procedures for impeachment trials acknowledge this constitutional reality, noting that a two-thirds vote to convict “operates automatically and instantaneously to separate the person impeached from the office.” The Senate may then, at its discretion, take a separate vote to impose, by simple majority, “the additional consequences provided by the Constitution in the case of an impeached and convicted civil officer, viz: permanent disqualification from elected or appointed office.”
Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer. Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.
As I wrote earlier, it’s an interesting and somewhat compelling point … which will be beside the point when these votes are taken. We can expect with high confidence that a trial will take place, and that it won’t result in a conviction, which is the prerequisite to disqualification.
The Article of Impeachment presented by the House is unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal. Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic democracy and the rights that we hold dear. Reasons for dismissal include:
1. The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed, and the Constitution limits the authority of the Senate in cases of impeachment to removal from office as the prerequisite active remedy allowed the Senate under our Constitution.
2. The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed rendering the Article of Impeachment moot and a non-justiciable question.
3. Should the Senate act on the Article of Impeachment initiated in the House of Representatives, it will have passed a Bill of Attainder in violation of Article 1,Sec. 9. Cl. 3 of the United States Constitution.
4. The allegations in the Article of Impeachment are self-evidently wrong, as demonstrated by the evidence including the transcript of the President’s actual speech, and the allegations fail to meet the constitutional standard for any crime, let alone an impeachable offense.
5. The House of Representatives deprived the 45th President of due process of law in rushing to issue the Article of Impeachment and by ignoring its own procedures and precedents going back to the mid-19th century. The lack of due process included, but was not limited to, its failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article, as well as the failure to conduct any full and fair discussion by allowing the 45th President’s positions to be heard in the House Chamber. No exigent circumstances under the law were present excusing the House of Representatives’ rush to judgment, as evidenced by the fact that they then held the Article for another 12 days.
6. The Article of Impeachment violates the 45th President’s right to free speech and thought guaranteed under the First Amendment to the UnitedStatesConstitution.
7. The Article is constitutionally flawed in that it charges multiple instances of allegedly impeachable conduct in a single article.
The Bill of Attainder issue cuts to the heart of the constitutional dispute. However, I wonder if Republicans will rely on point 5 the most in their rhetorical defense of the eventual acquittal. It’s perhaps the most obvious and least disputable point in this conclusion.