This morning, both the House impeachment managers and Donald Trump’s lawyers filed their respective lawsuits. The House Briefing can be found here and the Defense Briefing here.
The House Brief is an impressive and thorough analysis of both the facts that led to the January 6th attack on the Capitol and the various legal issues. The former is worth highlighting as the letter states that the relevant evidence includes not only Trump’s January 6th speech to the crowd who later attacked the Capitol, but also his earlier story of making false allegations of electoral fraud and violence has tolerated his followers. It is the combination of all three that Trump makes guilty and led some of his supporters to believe that he wanted them to attack the Capitol. As the brief notes show, many of the Capitol rioters specifically said they did what they did because they thought Trump wanted to.
The House Briefing also effectively addresses two major legal defenses offered by Trump’s supporters: that a conviction would undermine freedom of expression and that it is unconstitutional to bring a former president to justice. I’ve written extensively on both topics previously (e.g. here, here, and here) and won’t cover them in detail in this post. In my opinion, the best quick analysis of these two topics comes from my Volokh Conspiracy co-blogger Keith Whittington (see here and here). Keith’s writings are – rightly – cited repeatedly in the House Brief (which also contains some citations from other VC authors’ writings, including some of my own contributions).
In contrast to the House Brief, the Defense Brief is short and consists mostly of allegations that are not supported by evidence or legal arguments. These shortcomings could be due to Trump’s current lawyers only taking over the case yesterday after parting ways with his original legal team over the weekend.
The letter contains some notable whoppers, such as the claim that “[i]There is enough evidence for a reasonable lawyer to conclude that what the 45th President said [about the election results] were correct or not, and so he denies that they were wrong. “This simply ignores overwhelming evidence of judgments from numerous courts rejecting Trump’s false allegations of electoral fraud, including those drafted by Trump’s self-appointed judges (a fact effectively summarized in the House Brief).
The defense letter predictably raises both freedom of speech and the claim that the indictment against a former president is unconstitutional. However, it does not address any of the many shortcomings in these arguments, which have been pointed out by a large number of legal commentators across the political spectrum – and which have been properly summarized in the House Executive Summary.
Trump’s attorney letter also claims the impeachment is unconstitutional because it is a “Bill of Attainder” (a law aimed at punishing a specific person). I will mainly leave this topic to those with more relevant expertise. But I will point out that there can be no punishment without punishment (usually for some type of crime). Impeachment and conviction do not result in punishment and do not deprive the target of life, liberty or property. Instead, it is a mechanism to protect the constitutional system from threats by removing dangerous officials from office and (as in this case) potentially preventing them from taking office again in the future.
If this impeachment qualifies as an assassination attempt, this also applies to practically every other impeachment. After all, almost all impeachments are aimed at specific individuals. Removing or banning certain people is the whole point of the impeachment process.
Perhaps the best argument in the statement of defense is the claim that the impeachment article brings together several different subjects into one indictment in the hopes of putting together the two-thirds majority required to convict senators who may not fully agree with the prosecution, but parts agree.
I think perhaps it would have been better to separately count Trump’s previous efforts to pressure the Georgian Foreign Minister to illegally reverse election results in his state. But I don’t think this issue should be a deal breaker for persuasion. Senators may conclude that Trump is guilty of instigating the insurrection, even if they do not agree with all of the article’s arguments. Unlike a criminal case, which often takes due account of the technical details of certain charges, an impeachment vote is not a tight legalistic process but should focus on the bottom line, whether the defendant’s actions justify impeachment (in the case of a seated official) or excluded from future official acts.
While the homework assignment is vastly superior to the defense team’s raw and superficial work product, I’m not naive enough to believe that it will make a huge difference to the outcome. Impeachment is at least as much a political as it is legal process, probably more. That’s why Mitt Romney (in Trump’s first impeachment trial) is the only Senator who has ever voted to convict a president of his own party. Trump’s second impeachment trial will almost certainly add to the count. But party political prejudices – combined with the GOP senators’ fear of retaliation from Trump’s supporters within the party – seem to save Trump from conviction with the required two-thirds majority.
Incidentally, I do not doubt that party political prejudices also play a role on the democratic side. Few politicians are immune to it. It is noteworthy, however, that Trump’s impeachment has received greater bilateral support than any other impeachment of a president (with the possible exception of the possible impeachment of Richard Nixon in 1974), and that it is backed by numerous appeals down the middle became scholars and other commentators who have little or no love for the Democratic Party.
Currently, the likelihood of conviction seems slim, as 45 GOP Senators recently voted against filing a motion to reject Sen. Rand Paul’s objection to impeachment, based on allegations that former presidents have resigned from the Office cannot be brought to justice. However, some of these Senators have indicated that they will leave their options open when it comes to the final verdict – including Minority Leader Mitch McConnell. Only time will tell how many senators will vote in favor of a conviction, though it is highly doubtful that it will be enough to get the required two-thirds majority.