On Tuesday, Donald Trump’s attorneys filed the former president’s answer to his second impeachment. Responding to the charge of “incitement of insurrection” was always going to be difficult, but it became much more complicated over the weekend when Trump’s entire legal team left after reports that he had wanted them to argue his indefensible position that the election was stolen—the very claim that led to the Jan. 6 insurrection which the House of Representatives alleges that Trump incited.
Fortunately, after his squad of low-profile but highly qualified South Carolina election attorneys and he parted ways, Trump was able to make last-minute hires of two readily available lawyers in need of work—the guy who lost his job after failing to prosecute Bill Cosby for rape and then sued Cosby’s rape victim, and a former Roger Stone attorney who says Jeffrey Epstein was murdered.
How did the first big test for this dynamic duo go?
OK, so spelling the name of the country of which their client was president isn’t their strong suit.
What about the rest of their arguments? Let’s just say: If this is the legal case that Trump is demanding his lawyers make, it’s easy to see why his first team bailed and why he hasn’t been able to get any members of the crew that defended him in his first impeachment trial to participate the second time around.
Here’s a look at Trump’s eight-part impeachment defense, ranked from most relatively sane to least.
Eighth Craziest Defense: The Jurisdictional Argument
Trump’s most-plausible defense—the one that any legal team would have made, which already seems to have the support of the vast majority of the Republican Senate conference, and which right now appears likely to lead to his acquittal—is that Trump is a former president and so he cannot be tried for impeachable offenses under the Constitution. This is the first bullet point in the Trump legal team’s defense. It claims that since conviction for impeachment requires removal from office, and since Trump can’t be removed from an office he no longer holds, he can’t even be tried.
Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is … a legal nullity that runs patently contrary to the plain language of the Constitution.
This sounds like a reasonable argument, but it’s actually risible, designed to appeal to Republican senators’ desire for an easy way out. As impeachment scholar Frank Bowman recently told me, “They’re going to explain their votes on this semi-plausible but largely specious jurisdictional ground.”
The reality is that there is precedent for trying officials once they are out of office and that the historical record demonstrates that the Founders intended for impeachment to be possible after an official had left office.
And as the House of Representatives impeachment managers noted in a statement accompanying their own impeachment legal brief issued on Tuesday, it defies common sense to allow a president to commit impeachable offenses as he’s exiting office and to get away with it: “There is no ‘January exception’ to the Constitution that allows a President to organize a coup or incite an armed insurrection in his final weeks in office.”
Still, this is Trump’s best, least insane case.
Seventh Craziest Defense: I Didn’t Do It
Weirdly, Trump’s second best defense might come from Bart Simpson. We all saw Trump instruct a violent and angry mob to go to the Capitol and “fight like hell” or “you’re not going to have a country anymore” and “to try and give [the weak Republicans] the kind of pride and boldness that they need to take back our country.” We all saw the angry mob storm the Capitol and call for the death of Trump’s vice president Mike Pence and Speaker of the House Nancy Pelosi. Yet Trump’s second least-weak defense will be that he didn’t technically incite the mob by some criminal definition of the term. To wit, his lawyers argue: “It is denied that the 45th President engaged in insurrection or rebellion against the United States.”
Later in the brief, they claim his words were meant to be figurative: “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.”
They’ll need more than that at trial, presumably, but “I didn’t do it” is Trump’s second-best bet.
Sixth Craziest Defense: The Free Speech Case
Trump’s third-best argument would be that because his speech to the Jan. 6 crowd was not technically incitement, it was protected speech under the First Amendment. Trump’s brief is full of high-minded rhetoric to that effect:
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.
The argument is essentially that Trump was merely making protected political statements and not actively trying to overturn the government. As Rep. Liz Cheney—the third-ranking Republican in the House of Representatives—put it, though, this argument is nonsense. “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
It’s clear enough that Trump’s words and actions caused the insurrection, which renders his free speech defense a poor one. “Liz Cheney was absolutely right, Donald Trump’s was the greatest betrayal of the American constitutional values and his own oath as any president in American history,” Bowman told me. “The guy’s a monster.”
Fifth Craziest Defense: No Chief Justice Roberts
On top of its argument that the trial itself is unconstitutional because Trump is out of office, his attorneys argue that his “due process” rights are being “violated” because Chief Justice John Roberts, who the Constitution mandates must preside over impeachment trials of presidents, decided not to preside over the trial of an ex-president. Indeed, his attorneys accuse the House of maneuvering to replace Roberts with Senate President Pro Tempore Pat Leahy as the presiding officer in order to ensure a biased outcome:
The House actions thus were designed to ensure that Chief Justice John Roberts would not preside over the proceedings, which effectively creates the additional appearance of bias with the proceedings now being supervised by a partisan member of the Senate with a long history of public remarks adverse to the 45th President.
There is no evidence whatsoever that the House sought for Leahy to preside instead of Roberts, nor that Leahy will not lawfully fulfill his responsibility as the presiding officer. Indeed, according to the Constitution, the Senate has the “sole Power to try all Impeachments” and the Supreme Court has previously unanimously ruled that this means the Senate sets its own rules without judicial oversight. As Bowman told me, “the Senate running an impeachment trial can do anything it pleases if it’s got the votes to do it.”
Fourth Craziest Defense: Stacked Charges
Trump’s attorneys argue that because the House managers allege that Trump’s incitement was part of an overarching campaign to overturn the election, it is overly broad. The article, they argue, “is constitutionally flawed in that it charges multiple instances of allegedly impeachable conduct in a single article.”
This defense is flawed for a number of reasons, the first of which is that—as with the Senate’s responsibility over impeachment trials—the House has “the sole Power of Impeachment.” It can lay out its accusation of high crimes and misdemeanors however it chooses.
Further, the argument that Trump did so many bad things but that the House didn’t describe them in the right format isn’t particularly strong. Indeed, it should hurt Trump’s case that the act of attempting to overturn the election through insurrection encompassed so many efforts over such a lengthy time, starting with his Election Night victory claim. “His behavior in that time was impeachable in itself. He didn’t have to incite anybody,” Bowman said of Trump’s actions in the days after the election. “Trying to overturn the results of an entirely honest election and trying to do it by coercing, bribing, strong-arming people to do things they didn’t have the constitutional power to do.” It’s all part of the story.
Third Craziest Defense: The Process Was Rushed for No Apparent Reason
Trump’s attorneys argue that the House’s impeachment process is invalid because it was rushed without the normal committee proceedings and hearings. It further argues that there was no reason for this rush to judgment:
None of the traditional reasons permitting the government to act in such haste (i.e exigent circumstances) were present. The House had no reason to rush its proceedings, disregard its own precedents and procedures, engage in zero committee or other investigation, and fail to grant the accused his “opportunity to be heard” in person or through counsel—all basic tenets of due process of law. … Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States.
This ignores that House members were responding to an active attempt to overthrow the U.S. government—including ongoing public threats to the Capitol itself and their own lives which led to more than 10,000 National Guard member protecting Washington. There was an active, evidence-based fear at that time that Trump might continue to try to overthrow the government and that his minions might be plotting further attacks. Indeed, it is likely the threat of an immediate impeachment trial and conviction that deterred him from continuing his attacks on the peaceful transfer of power.
Second Craziest Defense: Donald Trump Is the Real Victim
Trump’s attorneys argue that the House’s illegal process means that Trump is being uniquely persecuted:
The House of Representatives’ action, in depriving the 45th President of due process of law, created a special category of citizenship for a single individual: the 45th President of the United States. Should this body not act in favor of the 45th President, the precedent set by the House of Representatives would become that such persons as the 45th President similarly situated no longer enjoy the rights of all American citizens guaranteed by the Bill of Rights. The actions by the House make clear that in their opinion the 45th President does not enjoy the protections of liberty upon which this great Nation was founded, where free speech, and indeed, free political speech form the backbone of all American liberties.
In short, Donald Trump—and not the legislators and their staff who were threatened, not the five people who died, not the city that was locked down in the aftermath of this mess—is the real victim here.
The No. 1 Craziest Defense: Trump Thinks He Won, So He’s Innocent
Finally, the least sane defense Trump’s attorneys put forward is that he thinks the election was stolen and nobody else can prove otherwise: “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.”
Note, the attorneys themselves don’t argue that they believe the election was stolen, or that they will present proof that the election was stolen. They just say that Trump believes it and claim that it hasn’t been disproven (it has dozens of times) and so that should be good enough for the rest of us.
We’ll see how far they get with that one!
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