Trump’s Lawyers Say He Can’t Be Impeached for Trying to Subvert the Election Because He Was Just Expressing an Opinion

Responding to Donald Trump’s impeachment in a 14-page brief filed today, his lawyers argue that he cannot be tried by the Senate because he is no longer president and that his promotion of the baseless claim that Joe Biden stole the presidential election, which inspired hundreds of his followers to launch a deadly attack on the Capitol last month, was protected by the First Amendment. And by the way, they say, there is “insufficient evidence” to conclusively determine that Trump’s wild claims of massive election fraud were false.

The House managers charged with prosecuting Trump in the Senate preemptively rebut those arguments in an 80-page trial memorandum that was also filed today. Their case is much more thorough and, on the whole, persuasive.

Trump’s argument that the Senate is not authorized to try him focuses on the constitutional text, which says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

Those provisions do not apply to Trump, “since he is no longer ‘President,'” his lawyers say. “The constitutional provision requires that a person actually hold office to be impeached. 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 void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution.” They also argue that “removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office,” meaning that a Senate trial cannot be justified by the possibility of disqualifying Trump from future federal office.

There are compelling arguments against this interpretation, based on the historical background, purposes, and prior use of the impeachment power. The House managers summarize those arguments in a 27-page section of their memorandum, noting that many legal scholars of various political persuasions think Trump is wrong on this point.

Michigan State law professor Brian Kalt gets into greater detail in his comprehensive 2001 treatment of the subject. While the record is mixed and often ambiguous, Kalt argues, the weight of the evidence supports impeachment and trial of former federal officials. Still, he calls it “a close and unsettled question.” George Washington University law professor Jonathan Turley, who is more inclined to credit Trump’s argument, likewise says the constitutionality of impeaching or trying a former president is “a close question upon which people of good faith can disagree.”

Trump’s argument that his unrelenting campaign to overturn Biden’s victory was consistent with his duties as president is much harder to take seriously. While Trump indisputably had a right to challenge the election results in court, the House managers note, the scores of lawsuits he and his allies filed were almost uniformly unsuccessful and never came close to changing the outcome. Instead of accepting the result, Trump continued to insist for months that he had actually won by a landslide, a fact he said would be apparent but for an elaborate criminal conspiracy that involved tricky election software and massive paper-ballot fraud.

“No President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes,” the House managers say. “Until President Trump.”

Some of the steps Trump took in the service of his election fantasy were by themselves clear abuses of power. The trial memorandum notes, for example, that he “tried to induce Michigan’s top Republican legislative officials to violate Michigan law by rejecting the popular vote and selecting a Trump slate of electors.” In a January 2 telephone conversation, Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to overturn Biden’s victory in that state, warning that failing to do so would be “a criminal offense” and “a big risk for you.” Trump publicly and privately urged Vice President Mike Pence