Andrew Desiderio and Heather Caygle, POLITICO
The legal battle over Donald Trump’s impeachment trial kicked off Tuesday, with the House managers arguing the former president bears “unmistakable” responsibility for the deadly Jan. 6 attack on the Capitol, and Trump’s team advancing his false claims about the election.
A week before the Senate is slated to put the former president on trial for a second time, the House’s first legal brief outlines a weekslong campaign by Trump to overturn President Joe Biden’s Electoral College victory based on unsubstantiated claims of election fraud — culminating in the insurrection at the Capitol while lawmakers were certifying Biden’s win.
“President Trump’s pursuit of power at all costs is a betrayal of historic proportions,” the House wrote in its opening brief. “It requires his conviction.”
Trump’s legal team filed its first official response to the House’s impeachment charge later Tuesday, denying that the former president sought to subvert the election results and incited the violence at the Capitol. The submission foreshadowed Trump’s legal strategy for the trial, which begins next Tuesday but is not expected to last as long as last year’s three-week trial.
Trump’s lawyers, Bruce Castor and David Schoen, also advanced the former president’s false claims that the election results were “suspect,” asserting that Trump has a First Amendment right to express that view.
“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,” Castor and Schoen wrote, adding that Trump “denies” it is false to say he won the election “in a landslide.”
Castor and Schoen only joined Trump’s legal team in the last few days, after the initial defense attorneys pulled out over disagreements about whether to buttress Trump’s false claims about the election. Even some of Trump’s allies are warning the legal team against leaning into Trump’s unsubstantiated allegations as part of the defense strategy.
“If they start trying to prove that Georgia and Pennsylvania and Wisconsin were stolen, that’s when you’re going to lose everybody,” Sen. Lindsey Graham (R-S.C.) said. “That’s when most of us will be ready to move on.”
The House’s 80-page brief is the most the public has heard from the nine impeachment managers — a team that includes several of the most TV-friendly lawmakers in Congress — since they were tapped by Speaker Nancy Pelosi in mid-January.
The group of managers, led by Rep. Jamie Raskin (D-Md.), has been meeting for weeks both formally and informally with each other and top staffers from the speaker’s office and House Judiciary Committee to prepare. But many of the lawmakers’ personal office staffers have been kept in the dark about the intense preparations and the members have been instructed not to do media interviews in the meantime, according to multiple Democrats.
Democratic leadership’s cone of silence strategy is twofold: both to ensure they clamp down on potential leaks ahead of the trial and also to avoid distracting any more than possible from Biden’s new administration and its efforts to tackle the coronavirus pandemic.
The House impeached Trump a week after the Jan. 6 attack, charging him with inciting the insurrection and writing in Tuesday’s brief that he did so using “incendiary and violent language” that put at grave risk the lives of the same senators now serving as jurors in the case against Trump.
“It is one thing for an official to pursue legal processes for contesting election results,” the House managers wrote. “It is something else entirely for that official to incite violence against the government, and to obstruct the finalization of election results, after judges and election officials conclude that his challenges lack proof and legal merit.”
Pelosi is still enraged by the events of Jan. 6 and what she believes is Trump’s direct role in inciting the violence, according to multiple people who have heard her express those sentiments both publicly and privately. And while the speaker was quick to call for removing Trump from office just one day after the deadly riots, Democrats are under no illusion that the trial will result in a conviction.
While there is a “deference being given to the future” in terms of focusing on the Biden administration, there is also a “visceral” feeling within the House Democratic Caucus that Trump — and the majority of Republicans who continue to support him — must be held accountable in some way, according to senior Democratic aides.
For Democrats, that meant moving quickly to impeach Trump even as he was on his way out of office and then put Senate Republicans on the record by making them vote on whether to convict in a trial that otherwise likely wouldn’t have consequences for the former president.
The House’s legal brief directly addresses the arguments from Trump’s allies that the Senate has no constitutional right to put a former president on trial because the penalty of removal from office does not apply. Indeed, 45 out of 50 Republican senators voted last week that trying an ex-president on impeachment charges is unconstitutional, creating a significant hurdle for the House as it seeks to convince at least 17 GOP senators that Trump should be convicted of the charge against him. Conviction requires the support of two-thirds of the chamber, or 67 senators.
The argument was a central theme of Trump’s response to the impeachment article on Tuesday, with Castor and Schoen writing that because Trump is a private citizen, “the Senate has no jurisdiction over his ability to hold office” and “the present proceedings are moot.”
Pushing back against this claim, the House managers noted that the Constitution gives the Senate the “sole power to try all impeachments,” and said refusing to put a former president on trial gives future presidents a license to commit impeachable offenses in his or her final days in office and then simply resign in order to evade accountability.
“It is unthinkable that those same Framers left us virtually defenseless against a president’s treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck,” the House managers wrote.
The former president’s allies have also asserted that Trump’s First Amendment rights to free speech shield him from responsibility for his elevated rhetoric leading up to Jan. 6. The House’s brief pushes back on that argument, asserting that “the First Amendment does not apply at all to an impeachment proceeding” because the Senate “must decide whether to safeguard the nation’s constitutional order by disqualifying an official who committed egregious misconduct.”
Only a handful of GOP senators are in the mix to vote in favor of Trump’s conviction, especially after a majority of the Senate GOP conference declared that the trial itself was unconstitutional. That group includes Sens. Mitt Romney, Lisa Murkowski, Susan Collins, Ben Sasse and Pat Toomey.
Senate Minority Leader Mitch McConnell voted alongside the GOP senators who oppose the trial on procedural grounds, but he has criticized Trump directly for his conduct, saying at one point that Trump “provoked” the rioters on Jan. 6. McConnell said last week that he has not spoken with Trump since mid-December.
Central to the House’s argument is that Trump’s public statements and actions threatened American democracy at its core in a way that the U.S. has never seen in modern times. The brief implicitly pushes back against the argument — advanced by some Democrats — that the Senate should not be spending so much of its time on an impeachment trial that appears likely to be headed toward an acquittal.
“Since the dawn of the republic, no enemy — foreign or domestic — had ever obstructed Congress’s counting of the votes,” the brief states. “No president had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes. Until President Trump.”
