Congressional Democrats and lawyers for former President Trump released competing briefs Tuesday outlining their legal strategies for next week’s Senate impeachment trial over Trump’s role in inciting a violent mob to storm the Capitol on Jan. 6.
The 80-page brief from House Democrats lays blame for the deadly siege directly at Trump’s feet, saying he intentionally “whipped [the crowd] into a frenzy.” The former president’s new legal team, which was formed on Sunday night, filed a 14-page response arguing the trial is unconstitutional and that Trump’s rhetoric did not inspire the riot.
Here are five takeaways from the rival briefs.
Briefs underscore different political worlds
Reading the legal briefs filed by the two parties is like stepping into two completely different universes.
Democrats are still enraged by the deadly riot of Jan. 6 and drew a direct line from Trump’s months-long campaign to delegitimize the presidential election results to his speech in Washington urging supporters to “fight” for him and the violent mob that then laid siege to the Capitol.
Every House Democrat and 10 Republicans voted last month to impeach Trump for inciting the violence, and there is no question in the minds of Democrats that the Constitution grants the Senate the right to convict Trump and bar him from ever running for office again, even now that he is a private citizen.
In fact, Democrats say it is imperative that Trump is punished to ensure that U.S. democracy is not threatened in this fashion ever again.
“President Trump’s conduct must be declared unacceptable in the clearest and most unequivocal terms. This is not a partisan matter. His actions directly threatened the very foundation on which all other political debates and disagreements unfold,” the Democratic brief states. “They also threatened the constitutional system that protects the fundamental freedoms we cherish.”
On the Republican side, the shock and anger have abated some in the weeks since the insurrection. Forty-five of 50 Senate Republicans have already voted to dismiss the trial on the grounds that it is unconstitutional.
In their legal brief, Trump’s attorneys argued that the trial proceedings are null and void because a former president cannot be impeached.
They argued there was no correlation between Trump’s rhetoric and the mob that later stormed the Capitol. The president’s speech about the election being stolen from him, though unpopular in Washington, is nonetheless protected by the First Amendment, and any effort to punish him would violate his civil liberties, Trump’s lawyers argued.
Many Republicans believe Trump is responsible for the deadly riot, though many more view the impeachment proceedings as a political endeavor designed to take Trump out once and for all.
Trial to focus on First Amendment, incitement allegations
The House impeached Trump last month on a single charge of “inciting insurrection,” based largely on his Jan. 6 speech just outside the White House encouraging supporters to march on the Capitol and prevent Congress from certifying the election victory of his opponent, President Biden.
The legal brief from Democrats promises to deconstruct that single charge, dissecting it into a series of even more targeted allegations, any one of which they maintain should disqualify the president from holding office in the future.
That list includes charges that Trump abused his powers for personal political benefit, imperiled the lives of lawmakers and his own vice president, and threatened national security by encouraging a breach of the Capitol, where rioters stole items from lawmaker offices, including a laptop from Speaker Nancy Pelosi (D-Calif.).
“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be,” the Democrats wrote in their brief, which described the former president as “singularly responsible” for the deadly attack.
Trump’s allies have a decidedly different view, arguing he had every right both to highlight election irregularities and to encourage his supporters to protest a process he deemed inherently corrupt — as long as it was done peacefully.
His lawyers’ defense brief focuses squarely on those First Amendment freedoms, maintaining that Trump bears no responsibility for the actions of supporters who turned violent in the heat of protest. Those rioters, his attorneys suggest, had simply misinterpreted Trump’s message.
“If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all,” Trump’s attorneys wrote.
His lawyers are also leaning on a procedural defense, namely that the Democrats have violated their impeachment powers by packing several charges into a single article. That, Trump’s lawyers contend, makes it “impossible to know if two-thirds of the [senators] agreed on the entire article, or just on parts, as the basis for [a] vote to convict.”
Constitutionality debate rages
Does the Constitution permit Congress to impeach a government official once they’re out of office?
That question is central to the briefs filed by both parties, and the matter will likely chew up a significant chunk of time at the trial after it starts on Feb. 9.
Democrats spent 23 pages in their brief detailing the constitutional case for impeaching a former president and barring him from ever seeking office again.
Trump was impeached by the House while he was still in office, so the process was already underway.
Democrats cited Article 1 of the Constitution, which gives the House the “sole power of impeachment” and the Senate “the sole power to try all impeachments” with no stipulation as to whether the individual is still in office.
Democrats went way back in history to make their case, arguing that former officials in England were subject to impeachment and disqualifications after leaving office, that there was nothing at the Constitutional Convention to suggest that those who have left office are shielded from impeachment, and that the Framers intended for Congress’s impeachment powers to be sweeping and broad, particularly when it comes to the president. They cited examples dating back to 1876, when former Sen. William Blount was impeached after leaving office for plotting to give the British control over parts of Florida and Louisiana.
There are no loopholes that would allow a public official to quickly resign or be fired to avoid facing consequences for crimes committed in office, the Democrats say.
“If the Senate does not try President Trump (and convict him) it risks declaring to all future Presidents that there will be no consequences, no accountability, indeed no Congressional response at all if they violate their Oath to ‘preserve, protect and defend the Constitution’ in their final weeks — and instead provoke lethal violence in a lawless effort to retain power,” the Democrats wrote. “That precedent would horrify the Framers, who wrote the Presidential Oath of Office into the Constitution and attached no January Exception to it.”
Trump’s team pointed to Article 2, Section 4 of the Constitution, which states that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
They say that because Trump cannot be removed from office, the rest of the debate is null and void.
Trump attorneys open door to election fraud debate
Trump’s legal team has signaled that it does not want to make his unsupported claims about election fraud the centerpiece of the impeachment trial. However, the former president’s attorneys may have made him vulnerable on that front by addressing it in their defense brief.
The brief touched only lightly on the matter, arguing that Democrats are wrong to say that the former president spun up the mob with lies about the election being stolen because reasonable people can disagree about whether state-based changes to election laws during the coronavirus pandemic were designed to suppress the GOP vote.
“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,” Trump’s attorneys wrote.
Democrats are eager to litigate what they’ve dubbed as “the big lie” that they say laid the groundwork for angry conspiracy theorists to sack the Capitol.
“Contrary to Trump’s lawyers’ public statement that they will not ‘put forward a theory of election fraud,’ Trump’s lawyers continue to defend Trump’s Big Lie that the election was stolen,” said a senior aide to the Democratic impeachment team.
Democrats hope to tap emotional aspects of Jan. 6 attack
Unlike the first impeachment of Trump, which was based on a private phone call with a relatively obscure foreign leader, Congress has a personal stake this time around. The rioters who breached the Capitol building did so while both chambers were in session, forcing terrified lawmakers to duck for cover while Capitol Police raced to whisk them to safe rooms.
Some in the mob chanted violent threats against anyone deemed disloyal to Trump, including Pelosi and former Vice President Mike Pence. Some offices were ransacked, their personal items stolen as trophies, while staffers cowered under desks behind doors they could only pray would stay locked.
One Capitol Police officer was killed and was memorialized this week by lying in honor in the Capitol. Two other law enforcement officers committed suicide just days after the attack.
That combination of fear and personal tragedy will itself be a form of witness in the Senate trial, as Democrats intend to revisit those chaotic moments in an effort to maximize the emotional impact on viewers watching the televised trial across the country.
The idea is a simple one: Strike while the anger is hot and emotions are high — a primary reason that Pelosi delivered the article to the Senate instead of holding it longer, as some in her caucus had advocated.
But the strategy is likely to bear no fruit. Senate Republicans are almost certain to clear Trump of any wrongdoing related to the Capitol attack. Democrats, however, are fighting to ensure that those votes to acquit are as uncomfortable as they can cause them to be.