Lawyers for former President Donald Trump filed their response Tuesday afternoon to the House of Representatives’ brief supporting the article of impeachment that will be the basis for the trial in the Senate that is set to open proceedings Feb. 9.
They argue that the trial is unconstitutional, and that the House’s factual claims against the former president are false.
Earlier, the Democrat-led House filed an 80-page brief that asserted that Trump had committed “incitement of insurrection against the Republic he swore to protect.” The brief argued that Trump’s speech at the Ellipse on January 6, and his claims of election fraud, incited a crowd to storm the U.S. Capitol. It also argued that it is constitutional to try a former president, and that the impeachment was proper even though the House did not follow any of the traditional investigative processes.
The House brief attempted to explain away the fact that then-President Trump explicitly told his supporters at the Ellipse to protest “peacefully and patriotically” by claiming that was canceled out by Trump’s later exhortation to “fight like hell” for their country. The brief also attempted to deal with the problem that the riot began before Trump had finished speaking by saying the riot was started by an “early wave.” It obscured the fact that the Ellipse is 1.5 miles on foot from the Capitol.
In their 14-page response, Trump’s legal team, led by Bruce L. Castor, Jr., and David Schoen, argue that the Senate cannot try a president who has left office. They also reject the House’s attempt to argue that the president should be barred from any future public office by the 14th Amendment, dismissing claims that he led an insurrection. They add that passing any resolution to bar Trump “would constitute a Bill of Attainder in violation of Art. I, Sec. 9. Cl. 3” of the Constitution.
Trump’s lawyers also argue that his claims that the 2020 election was fraudulent are protected by the First Amendment. Without going into detail, they state that Trump rejects the House’s claim that his claims of election fraud are false. They argue that his “fight like hell” statement had nothing to do with what was happening already at the Capitol, but “was clearly about the need to fight for election security in general, as evidenced by the recording of the speech.”
Moreover, Trump’s lawyers note that Democrats have contested the Electoral College vote in the past, and that he did not intend to interfere with the counting of Electoral College vote, even if he encouraged challenges to the validity of the vote.
They also argue that the House of Representatives violated Trump’s due process rights by ignoring the impeachment procedures, and that the article of impeachment is flawed because it contains too many different claims, meaning Senators would not be able to agree “on the entire article, or just on parts, as the basis for vote to convict.” Finally, they note Chief Justice John Roberts declined to preside, leaving “a partisan Senator who will purportedly also act as a juror,” unfairly.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is How Not to Be a Sh!thole Country: Lessons from South Africa. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.