A week before the historic second impeachment trial of a United States president, Democrats likened former President Donald Trump’s alleged incitement of the Jan. 6 deadly mob of supporters to aiming a “loaded cannon” at the Capitol building, while Trump’s new legal team dismissed the accusations and claimed the impeachment trial to be unconstitutional.
The arguments were detailed in briefs filed with the Senate Tuesday.
Democrats as House impeachment managers said in their brief that Trump’s “conduct endangered the life of every single member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security,” The Associated Press reported. “This is precisely the sort of constitutional offense that warrants disqualification from federal office.”
“President’s do not get a free pass to commit high crimes and misdemeanors near the end of their term,” the impeachment managers wrote.
In a brief filed later Tuesday, Trump’s defense team declared the impeachment proceedings unconstitutional — interpreting that “the constitutional provision (of impeachment) requires that a person actually hold office to be impeached” — because Trump is now a private citizen. The defense team also wrote that the former president was expressing his First Amendment when he told a mob of supporters that morning “if you don’t fight like hell, you’re not going to have a country anymore,” The New York Times reported.
Trump was within his rights of free speech to “express his belief that the election results were suspect,” his defense team argued, blaming state coronavirus election safeguards as reason for doubt, and that there is “insufficient evidence” for a jurist to determine if Trump’s claims to election fraud were baseless.
Historian and author Jeremi Suri warned this is an argument that could cause political trouble for Republicans.
“I think (Mitch) McConnell will be horrified if the defense team comes in and continues to claim that the election was stolen from them,” Suri said of the Republican Senate minority leader from Kentucky, who is looking ahead to the 2022 midterm and how the GOP could take back control in Congress. “He wants them to run on small government and deficits, and not allowing (President Joe) Biden to” push forward his agenda.
“If they run in 2022 on the stolen election, the Democrats will pick up seats in the Senate,” Suri, a professor of history and public policy at the University of Texas’ Lyndon B. Johnson School of Public Policy, predicted in an interview with the Deseret News.
Suri, the author of “The Impossible Presidency,” said a good defense will make a strong argument that an impeachment trial is not the right forum, allowing moderate Republican lawmakers to say, hypothetically: “We don’t want to defend anything Trump did. Trump did all these horrible things, but this is not the right place.”
Last week, 45 GOP senators — 90% of Republicans in the chamber — voted for a failed attempt to dismiss the trail on grounds that it was unconstitutional because Trump has already left office. Only five Senate Republicans joined all 50 Democrats to reject the idea, which ultimately showed there is not enough support among GOP senators to convict Trump. Seventeen Republicans and the entire caucus of Democrats would be need to cast a convicting two-thirds vote.
Trump’s brief is signed by Bruce Castor Jr. and David Schoen, a pair of criminal defense attorneys who joined Trump’s defense team just days ago after five other lawyers stepped away from defending the president, The New York Times reported.
The twice-impeached president was pushing “his defense team to focus on his baseless claim that the election was stolen from him,” according to the Times.
Last year, Schoen represented longtime Trump adviser Roger Stone — whose federal sentence for witness tampering, lying to Congress and obstruction was later commuted by Trump — at a sentencing hearing. He also met with Jeffrey Epstein before the accused sexual abuser of minors killed himself in a New York prison in 2019, NPR reported.
Castor, a Republican and former Montgomery County, Pennsylvania, district attorney, made national news when he declined to charge now-disgraced comedian Bill Cosby in 2005 after it was alleged then that “The Cosby Show” actor had drugged and sexually assaulted a woman, The Washington Post reported. Cosby was convicted a decade later for three felonies involving the sexual assault after a new district attorney did press charges and 13 women volunteered to testify at the trial, according to the Post.
“Castor likes the spotlight and is not known for holding back, often creating the buzz that follows him,” The Philadelphia Inquirer reported after Castor’s addition to the Trump’s legal team was announced.
“Both Schoen and Castor agree that this impeachment is unconstitutional — a fact 45 senators voted in agreement with last week,” Trump’s office said in a statement, according to NPR.
“This process is completely unconstitutional and it is a very, very dangerous road to take with respect to the First Amendment,” Schoen said on Fox News Monday night, “putting at risk any passionate political speaker which is really against everything we believe and in this country.” The attorney went on accuse Democrats of “awful bias and prejudgment.”
Suri, at the University of Texas, said there are already “a large number of Republican senators who have decided they are not going to vote to convict. Ted Cruz (of Texas) is not going to vote to convict.”
“But someone like Sen. John Cornyn in Texas doesn’t want to vote to convict, but doesn’t want to have to defend the embarrassing position,” Suri said. “He’s looking for some way out,”
Ultimately, the professor said, a poor defense raises the political cost for senators who don’t want to vote to convict Trump — a cost that is higher for lawmakers like Cornyn.
“The trial is about the votes, but it’s also about the people watching. And people are going to be watching,” Suri said. “It’s going to be excerpted. It’s going to be all over social media. And if the Trump defense is ridiculous, that is harmful to all the Republicans who will have committed to voting against his conviction.”