Former President Trump's proposed defense is actually more damaging.
On February 2, 2021, the legal team in Former-President Trump's 2nd Impeachment Trial presented their legal brief in advance of the February 9, 2021, Senate trial. Addressing each of the 14 charges in the Articles of Impeachment the overarching themes can be summarized into two pillars:
The Senate trial is unconstitutional given Trump is no longer in office
Trump's words at the January 6, 2021 "Stop the Steal" rally are protected under the First Amendment as Free Speech
Constitutional Consideration
Full admission that I am no Constitutional scholar, but those that are have opined that the Senate does have jurisdiction given that a) the acts occurred while Trump was in office, b) the Articles of Impeachment were drafted, voted in favor, and transmitted to the Senate before Trump left office, and c) precedence exists for trying a former officeholder post-term (e.g. Secretary of War Ulysses S. Grant).
A sitting President is also immune from criminality while in office such that they cannot be indicted for criminal activity (as per Department of Justice's Office of Legal Counsel adopted in an internal memo the position that a sitting president cannot be indicted circa 1973 related to the Nixon Watergate scandal, and again reaffirmed it in a 2000 memo stating court decisions in the intervening years had not changed its conclusion that a sitting president is “constitutionally immune” from indictment and criminal prosecution. It concluded that criminal charges against a president would “violate the constitutional separation of powers” delineating the authority of the executive, legislative, and judicial branches of the U.S. government).
So if a President cannot be indicted while in power, what stops them from misbehaving? That is what the Framer's of the Constitution did in fact think of.
Framer's Foresight
Even back in 1787, the Framer's of the Constitution foresaw that a President should not have authoritarian control and be above the rule of law (given they had just fought so hard to throw off the English shackles for that very reason).
As such the Framer's created the process of Impeachment for a sitting officeholder related to behavior deemed to be 'high crimes and misdemeanors'. Not explicitly spelled out in the Constitution is the term in which Impeachment and Senatorial Trial apply. However, it is reasonable to assume that any actions committed by a President while in office (hence the timing of the January 6, 2021 insurrection) falls under said purview.
Furthermore, the period from the first Tuesday in November to January 20th a defeated or retiring President could theoretically commit any actions without fear of repercussions provided they abdicate office prior to any impeachment were to occur. This did not happen with Trump, the House delivered the Articles of Impeachment prior to his departure.
The Framer's could not have explicitly spelled out every possible scenario such as this one surrounding January 6, 2021. What is conceivable is that they never sought there to be a way for an individual to circumvent the responsibility and sworn oath of the Office of the President of the United States of America.
If the constitutionality of the trial is then settled (and it was also settled given a majority of Senators (55-45) voted in favor thereof), then attention should turn to Trump's defense.
Forget Fraud, Implicate Insurrection
In the legal brief from February 2, 2021 lawyers outline that all of Trump's claims leading up to the insurrection are protected under the First Amendment of free speech. The problem is that this approach is a double-edged sword.
Trump had been arguing for months (even in advance of the election) that fraud was to and did transpire
Attempting to overturn the election would directly benefit Trump
The track record of election fraud claims before and after November 3, 2020 shows a pattern of disinformation in order to sow doubt and promote a false narrative in order to challenge election results. One could argue that if the results had been in Trump's favor he would no longer have challenged election results. Trump continued to claim - without evidence, even after multiple failed or dismissed lawsuits - that the election results were incorrect. Such claims would directly benefit himself in hopes of remaining in power.
This personal benefit means there is motive, as is confirmed from the audio recording of a phone call between Trump and Georgia Secretary of State Brad Raffensperger about 'I just want to find 11,780 votes, which is one more than we have' in order to change the results in that state in Trump's favor. This is clear and knowing subversion of an election and is in and of itself a crime. However, returning to the opinion that a sitting President cannot be indicted, then it is a matter of impeachment. So this then takes us to the matter of intent (which we have proven motive for) versus the defense of free speech.
Trump's attempt to use his power of office to influence Mr. Raffensperger failed. As such, Trump turned to bullying Vice-President Pence with claims of him being weak and that he should do the right thing for America by dismissing the Electoral College count. When it became clear to Trump that Pence was not going to do that, Trump turned to the Stop the Steal rally on January 6, 2021.
Up to this point, Trump has pursued many avenues (legal challenges, pressuring election officers, etc.) to achieve his goal of overturning the election. When these failed, he turned to calling for action and using a term of violence "to fight" and "We will never give up, we will never concede." Those words directly call for physical action to be taken which then occurred.
So what does this mean? This means that Trump's claim of free speech is problematic because his call for action "to fight" is not protected under the First Amendment because it led to illegal conduct and incited imminent lawless action. This should be open and shut based on the First Amendment.
Obligation of Oath
Perhaps what should be the ultimate outcome of the Impeachment Trial in one way or another, is to show the American people that Trump is no longer fit to serve. This can be reinforced that Trump would need to either:
Double down on his claims of election fraud and prove it in a court of law (which has yet to occur as even his own, former Attorney General Bill Barr confirmed there was no mass fraud); or
Admit that he pushed election fraud claims and called 'to fight' even though he knowingly knew those claims were false.
The former shows that Trump, as an individual, is unable to grasp reality. This is not the type of personality or mental state to be providing the nuclear launch codes to. The latter circles back to the argument of free speech, such that free speech does not protect against fraud. The irony is that for all of Trump's railings against election fraud, it could be his own undoing and his defense would then fall apart, leaving no argument for a) unconstitutionality, or b) argument of free speech.
Regardless, Trump should be barred either by the Senate or by the American people via the ballot box to never hold the Office of the President of the United States again.
Comments