Earlier, I covered the House Democrats’ opening brief in Donald Trump’s impeachment trial, which runs seventy-seven pages and anticipates most if not all of the defenses Trump and Republicans will claim. A few minutes later, Trump’s new defense team filed a fourteen-page rebuttal that stipulates to certain parts of the impeachment — but denies any culpability or wrongdoing alleged, as expected.
The Trump legal team’s brief starts off with yet another embarrassing typo, emphasis mine:
To: The Honorable, the Members of the Unites States Senate:
Ugh. The rest of the brief appears to demonstrate more competence, thankfully, but offers few other surprises either. The response makes two basic arguments simultaneously — that the Senate now lacks jurisdiction because Trump is a private citizen, and that Trump never incited the crowd nor lied about the election. In almost every instance, David Schoen and Bruce Castor answer the House using some form of “Admitted in part, denied in part as not relevant to any matter properly before the Senate.”
To the charge that Trump willfully spread false statements about the election, Schoen and Cantor argue that the First Amendment applied to presidents as well as citizens:
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. 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. Since the 45th President is no longer “President,” the Constitutional clause at Averment 1 above ‘shall be removed from Office on Impeachment for…’ is impossible since the 45th President does not hold office and the current proceeding before the Senate is void ab initio as a legal nullity rendering Averment 4 irrelevant to any matter properly before the Senate.
The final sentence appears in some form in every rebuttal, but the point here on free speech is telling. His amplification of false information might require a political rebuke (a category in which impeachment belongs), but first the House would have to establish that the statements were false in the first place. That article does put the burden on the House to prove that falsity, but Trump’s legal team is adept enough to argue that it’s moot on jurisdictional grounds anyway.
They use the same structure when it comes to incitement:
It is admitted that persons unlawfully breached and vandalized the Capitol, that people were injured and killed, and that law enforcement is currently investigating and prosecuting those who were responsible. “Seditious acts” is a term of art with a legal meaning and the use of that phrase in the article of impeachment is thus denied in the context in which it was used. It is denied that President Trump incited the crowd to engage in destructive behavior. 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. It is denied that President Trump intended to interfere with the counting of Electoral votes. As is customary, Members of Congress challenged electoral vote submissions by state under a process written into Congressional rules allowing for the respective Houses of Congress to debate whether a state’s submitted electoral votes should be counted. In 2017, Democratic Members of Congress repeatedly challenged the electoral votes submitted from states where President Trump prevailed. In 2021, Republican Members of Congress challenged the electoral votes submitted from states where President Biden prevailed. The purpose of the Joint Sessions of Congress in 2017 and on January 6, 2021 was for Members of Congress to fulfill their duty to be certain the Electoral College votes were properly submitted, and any challenges thereto properly addressed under Congressional rules. Congress’ duty, therefore, was not just to certify the presidential election. Its duty was to first determine whether certification of the presidential election vote was warranted and permissible under its rules.
As has been noted ad infinitum, Congress does not “certify” elections at all. It had no other duty on January 6th beyond its ceremonial role in counting the electors’ ballots. The only circumstance in which Congress has a role is when states send two or more certified slates of electors to the Electoral College, in which case Congress has to decide which slate should be accepted. The challenges in 2005 and 2017 were just as invalid as the challenge on January 6th and amount to abuse of power by legislators against the authority and sovereignty of the states.
Interestingly, this answer is the only one that doesn’t include the mootness argument. This might hint that Castor and Schoen still plan a justification defense, even though it might concede the jurisdictional argument in doing so. However, in the summary of defenses that begins on page 10, Schoen and Castor stick to jurisdiction, form, due process, and constitutional issues.
It appears that the response to point 6 might have been included mainly to satisfy Trump’s desire to keep litigating election issues, but that his attorneys plan to stick to Senate Republicans’ strategy on jurisdiction alone. Will it keep Trump satisfied, or will he change his mind and demand to argue justification under point 6?