Trump incited violence against the US Government by
spreading the Big Lie in the months before the Joint Session
and (addressing the crowd at the Ellipse shortly before the Joint Session)
reiterating false claims that ‘‘we won this election, and we won it by a landslide’’
willfully making statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol.
Defense Arguments
First Amendment
Trump’s speech at the Ellipse was protected by the First Amendment.
Senate Trial Unconstitutional
The Senate lacks jurisdiction to try a former official on impeachment charges.
Due Process
The House’s investigation and impeachment of Trump violated his right to due process
No Incitement
Trump did not incite an insurrection
No Crime
An impeachable act must be a criminal offense.
First Amendment Defense
Defense Argument
Trump’s speech was protected by the First Amendment.
It’s permissible to advocate the use of force or violating the law as long as such advocacy is not “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio)
Trump did not advocate such behavior in his speech at the Ellipse.
Therefore, Trump’s advocacy of action in his speech was permissible.
Analysis
Assuming for the sake of argument that Trump’s speech was legally permissible, it doesn’t follow that he did not commit an impeachable offense by inciting violence against the government. An impeachable act need not be a criminal offense. A president who fails to defend the country against a foreign attack, for example, though perhaps not breaking any law, would nevertheless violate his oath to defend the US Constitution.
Trump’s First Amendment defense relies on a core argument that has been discredited., NYT
Trump’s Impeachment Trial Offers a Chance to Seize the Initiative on the Future of Free Speech, NYR
144 Constitutional Lawyers Call Trump’s First Amendment Defense ‘Legally Frivolous’.NYT
Lawyers Call Trump’s Defense ‘Legally Frivolous’, NYT
Trump’s First Amendment rights don’t matter for his impeachment trial,WaPo
Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean, Atlantic
It’s not a typical trial. Lawyers in the Trump impeachment case will argue big constitutional questions. WaPo
Unconstitutional Senate Trial Defense
Defense Argument
An impeached official cannot be tried if no longer in office
The Senate’s authority to try a former officer relies on Article II, Section 4 of the Constitution, which provides: “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
The argument:
The president shall be removed from office if impeached, tried, and convicted.
Only incumbent officers can be removed from office.
Therefore, only incumbent officers can be impeached, tried, and convicted.
Analysis
The question: can an official be impeached in office and tried by the Senate after leaving.
The Constitution provides that
1. The House has “sole Power of Impeachment”
2. The Senate has the “sole Power to try all Impeachments”
3. The “President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
4. “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor,
Two Remedies Argument
Provision 4 provides two distinct impeachment remedies:
Removal from office
Disqualification from holding future offices.
The Constitution does not prohibit any of the possible combinations:
Removal only
Removal and disqualification
Disqualification only
All means AllArgument
About Provision 2 Raskin said:
“All means all. There are no exceptions to the rule.”
The Argument
The Senate has the power to try all impeachments.
Therefore the Senate has the power to try impeachments of officials no longer in office.
Argument by Analogy
A person can be tried after the deadline for the statute of limitations if they’ve been charged before the deadline.
Provision 3 Limited Argument
Provision 3 is about removal from office and says nothing about disqualification.
Precedent Argument
The Senate can constitutionally hold an impeachment trial after Trump leaves office, Lawrence Tribe, WaPo
In 1876 Secretary of War William Belknap resigned minutes before the House was set to impeach him; the House still transmitted five articles of impeachment to the Senate. At Belknap’s trial, the Senate voted 37 to 29 that he was “amenable to trial by impeachment …notwithstanding his resignation of said office.” And the House and Senate rules have both long permitted the impeachment and trial of former officers for abuses committed while holding office.
Avoiding Disqualification Argument
Not being fools, the Framers would not have allowed an impeached official to evade disqualification by resigning before trial.
Resources
199 legal experts say Senate must not acquit Trump over constitutionality issue, Blake, WaPo
The debate over whether the Senate can hear Trump’s impeachment: An explainer, WaPo FC
‘This cannot be our future.’ Raskin makes an emotional argument, describing his family being at the Capitol riot. NYT
Democrat says Trump lawyers misrepresented legal scholar’s argument. NYT
The Constitution Doesn’t Bar Trump’s Impeachment Trial WSJ
Once Trump leaves office, the Senate can’t hold an impeachment trial, J. Michael Luttig, WaPo
Breaking With G.O.P., Top Conservative Lawyer Says Trump Can Stand Trial, NYT
The Senate can constitutionally hold an impeachment trial after Trump leaves office, Lawrence Tribe, WaPo
‘I Said The Opposite’: Criticism Of Trump’s Impeachment Defense Intensifies,NPR
170 Legal Scholars Support Impeachment Out of Office Reason
It’s not a typical trial. Lawyers in the Trump impeachment case will argue big constitutional questions. WaPo
Due Process Defense
Defense Argument
The House Afforded President Trump No Due Process of Law. Defense Brief Page 66
On January 13, 2021, mere days after the press conference purportedly launching the inquiry, House Democrats completed the fastest presidential impeachment inquiry in history and adopted the Article of Impeachment over strong opposition and with zero due process of law afforded to the President, against Constitutional requirements and centuries of practice. Defense Brief Page 66
Analysis
No one may be “deprived of life, liberty, or property without due process of law,” per the Fifth and Fourteenth Amendments.
But the sanctions imposed by an impeachment conviction are removal and disqualification, not deprivation of life, liberty, or property.
Therefore, Trump’s impeachment and trial do not violate his right to due process.
Moreover,
Trump was given notice of the article of impeachment.
Trump attorneys falsely claim he was denied ‘due process’,WaPo FC
No Incitement Defense
Defense Argument
Trump advocated to the crowd at the January 6, 2021 event that he expected peaceful behavior. He explicitly stated, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Indeed, after reports of violence at the Capitol Mr.Trump issued a public video statement, urging the crowd at the Capitol to “go home” in “peace.” Defense Brief Page 52
Castor argues that Jan. 6 riot doesn’t fit legal definition of insurrection, WaPo
“Insurrection is a term of art defined in the law. It involves taking over a country, a shadow government, taking the TV stations over and having some playing what you’re going to do when you finally take power. Clearly, this is not that,” he said in arguing against the impeachment charge of “incitement of insurrection.”
Analysis
Regarding Defense Point 1
Trump’s talk of peace must be taken in the context of the entire speech and, more broadly, in the context of his months-long campaign to overturn the election.
Lawyers Call Trump’s Defense ‘Legally Frivolous’, NYT
President Trump’s speech, and the overall course of his conduct, advanced the factually baseless position that the election had been “stolen” and, further, that immediate action was necessary to prevent Vice President Pence and Congress from counting and confirming the votes of Electors that had been submitted (and certified) by the States. The evidence shows that President Trump deliberately assembled the crowd of supporters; that he steeled his supporters for action and knew that they were ready to take immediate action; that he directed them to take such immediate action; that President Trump said he would be with them in such action and supported such action; that he intended such action to accomplish the unlawful disruption of the constitutional processes of Congress in counting the votes of Electors and certifying the results; and that many persons in the mob that attacked Congress and the Capitol understood themselves to be doing exactly what President Trump had directed and intended for them to do
Regarding Defense Point 2
Merriam-Webster defines:
an insurrection as “an act or instance of revolting against civil authority or an established government”
to inciteas “to move to action : stir up : spur on : urge on.”
Inciting an insurrection thus means: “urging on an act of revolting against an established government”
Trump lawyer says ‘the act of incitement never happened’ WaPo
Castor argues that Jan. 6 riot doesn’t fit legal definition of insurrection, WaPo
The central flaw in Trump’s impeachment defense, Bump WaPo
Trump’s Lawyers Deny He Incited Capitol Mob, Saying It’s Democrats Who Spur Violence, NYT
Impeachment Poses One Question, David Graham Atlantic
No Crime Defense
Defense Argument
The terminology of “high Crimes and Misdemeanors” makes clear that an impeachable offense must be a violation of established law. Defense Brief Page 73
Trump did not violate the law.
Therefore, Trump did not commit an impeachable offense.
A Philosopher's View 