The 77 pages of the latest Memorandum of Impeachment levied against Donald Trump by the House of Representatives reads like a tragic novel. “This trial arises from President Donald J. Trump’s incitement of insurrection against the Republic he swore to protect,” reads the opening line of the introduction. The 14-page response from Trump’s legal team, by contrast, reads like pure farce: They misspelled the name of the United States (instead writing “Unites States”) before their counterargument even begins.
I was in the civil litigation business for a long time, a long time ago, and I probably worked as many as 20 courtroom trials over those years. Here is an axiomatic fact: Had I been responsible for such a cataclysmic typo in the opening header of an official court document, or anywhere in the document for that matter, I would have been fired with enough white-hot heat to turn my bones to glass. Legal communities tend to be tight-knit and gossipy; calamitous gaffes like this are recalled, re-masticated and mercilessly mocked for decades.
Tragedy and farce: That is the binary state of these two competing documents. The first, from the House impeachment managers, lays out in searing detail what the world watched happen on January 6. The second, from Trump’s ragtag band of defenders, lays out the same defense the former president has used to bat down critics for years: I didn’t do it, there would be nothing wrong if I did do it, and there’s nothing you can do about it.
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On Wednesday, some 370 Capitol staffers spoke with one voice on the need to convict Trump for his actions on January 6. “As congressional employees,” they wrote in a deeply evocative letter, “we don’t have a vote on whether to convict Donald J. Trump for his role in inciting the violent attack at the Capitol, but our senators do. And for our sake, and the sake of the country, we ask that they vote to convict the former president and bar him from ever holding office again.”
The House impeachment memo is clear and bold in its assignation of blame, stating:
President Trump’s responsibility for the events of January 6 is unmistakable. After losing the 2020 election, President Trump refused to accept the will of the American people. He spent months asserting, without evidence, that he won in a ‘landslide’ and that the election was ‘stolen.’ He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the Nation’s continued existence. But every single court to consider the President’s attacks on the outcome of the election rejected them. And state and federal officials from both parties refused President Trump’s increasingly desperate demands that they break the law to keep him in power. With his options running out, President Trump announced a ‘Save America Rally’ on January 6. He promised it would be ‘wild.’
Trump’s legal team, in response to this nutshell encapsulation of his manifest culpability, argues the former president was merely exercising his First Amendment rights to point out “suspect” election results, writing:
It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures. 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.
Let us not forget Trump’s claims from that fateful podium on January 6:
“We won this election, and we won it by a landslide.”
“By the way, does anybody believe that Joe had 80 million votes? Does anybody believe that? He had 80 million computer votes. It’s a disgrace.”
And all of these were followed by, “So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol.”
Exhortations to violence and mob action are not protected by the First Amendment. In the vernacular of first-year law school students, your right to free speech stops at the other guy’s nose; throw a verbal punch, and you have gone beyond the wide freedoms afforded by that amendment. On that day, Trump threw several punches, and enough of them landed to topple the Capitol Building for a time. He drew the mob, aimed them and fired them. It is as simple as that.
Thus is the I didn’t do it, but it would be OK if I did portion of the defense left in twisted little pieces. The remainder of Trump’s defense leans heavily on an argument that There’s nothing you can do about it, the farcical notion that an elected official cannot be impeached and convicted once they have left office.
First and foremost, Trump was impeached while still in office; the trial is nothing more than the conclusion of the process. Second, if absence from office were a viable firewall from legal consequences, elected officials could loot the till two weeks before their terms are up and get away scot free, having left no time to prepare and execute a proper impeachment process. This is, therefore, not a tenable legal stance from any perspective.
Trump’s defense memo is perfect nonsense, all in all a mayhem document written in spelling-error haste in order to obey the forms of the process. Trump and his people know full well that despite use of the word “trial,” what is set to happen in the Senate is a political event and not a legal one. Evidence matters less than knowing the impeachment managers lack the votes to convict. Why bother putting effort into a defense document when the real defense is happening behind closed doors in a festival of threats and arm-twisting?
The impeachment memo concludes:
President Trump endangered our Republic and inflicted deep and lasting wounds on our Nation. His conduct resulted in more than five deaths and many more injuries. The Capitol was defiled. The line of succession was imperiled. America’s global reputation was damaged. For the first time in history, the transfer of presidential power was interrupted. And the threat of violence remains with us: as President Biden was inaugurated and even now, the Capitol more closely resembles an armed camp than the seat of American democracy.
The documents have been filed, the arguments and counterarguments made. The trial begins next week amid the cacophony of a civil war within the Republican Party. How the power struggle between Trump’s devotees and the establishment GOP goes this week looks to play a huge role in how this trial will ultimately play out. The House managers made the case. It is up to 17 Senate Republicans to make it count.