On Tuesday, former President Donald Trump’s lawyers Bruce L. Castor, Jr., and David Schoen released Trump’s answer to the Democrats’ article of impeachment accusing him of “incitement of insurrection.” Trump’s response breaks the Democrats’ impeachment article into eight separate allegations and responds to each claim. In a nutshell, the former president argues that it is unconstitutional for the Senate to remove a president when he has already left office and that he is innocent of the Democrats’ charges.
Trump asks the Senate to “dismiss Article I: Incitement of Insurrection against him as moot, and thus in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office. In the alternative, the 45th President respectfully requests the Senate acquit him on the merits of the allegations raised in the article of impeachment.”
The Senate already voted to take up the impeachment, with five Republican senators joining 50 Democratic senators in holding the matter constitutional. However, 45 Republican senators voted not to hold the trial, given constitutional concerns. This vote signified that the Senate is not likely to convict Trump.
The former president makes a few extremely salient arguments against the Democrats’ impeachment article. In addition to the claim that the Senate cannot convict a former president on impeachment, Trump argues that the Democrats violated his free speech and due process rights in rushing to impeach him and that the article of impeachment is deceptively drafted in an unfair manner. Trump also claims that disqualifying him from office would constitute a “bill of attainder,” which has been broadly interpreted to mean a legislative act against a class of people that inflcits punishment on them without a judicial trial.
Trump argues the article of impeachment is “facially and substantively flawed, and otherwise unconstitutional, and must be dismissed with prejudice.”
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The president’s responses
Trump splits the article of impeachment into eight claims, providing a response to each claim.
His first response claims that the impeachment power does not apply to him because he is no longer president. “The constitutional provision requires that a person actually hold office to be impeached. Since the 45th President is no longer ‘President,’ the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution.”
Trump also argues that the Constitution does not allow the Senate to disqualify a president from future office unless that president has first been removed from office due to impeachment. “Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.”
Importantly, Trump denies ever having “engaged in insurrection or rebellion against the United States.” He also denies ever having “engaged in a violation of his oath of office.”
While the article of impeachment condemns Trump’s statements challenging the 2020 election results as “false,” Trump defends those statements. He claims he exercised his First Amendment right “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,” Trump argues. “Like all Americans, the 45th President is protected by the First Amendment. …. the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation” (emphasis added).
Trump acknowledged that he spoke at the Ellipse on January 6 before the Capitol riot, but he insisted that Democrats twisted his words in claiming that he had incited an insurrection.
“It is denied that President Trump incited the crowd to engage in destructive behavior. It is denied that the phrase ‘if you don’t fight like hell you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech,” the legal defense reads.
Trump claims that he did not intend to interfere with the counting of Electoral College votes. He notes that Democrats in Congress challenged Electoral College votes in 2017 and that Republicans did so in 2021, in each case to no avail. He argues that Congress’s duty “was not just to certify the presidential election” but also “to first determine whether certification of the presidential election vote was warranted.”
Trump does not mention the fact that he encouraged Vice President Mike Pence to overstep his constitutional bounds in rejecting Electoral College votes, a move that undermines his claim that he did not intend to interfere.
Trump also denies having made “any effort to subvert” the 2020 election in asking Secretary of State Brad Raffensperger (R-Ga.) to “find” votes. Trump claims that the word “find” was appropriate in context because he was expressing his opinion that an accurate count would “find” the votes required to put Trump over the top.
Finally, Trump denied having “ever endangered the security of the United States and its institutions of Government.” He denied having “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government.”
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Trump’s defenses
After addressing the article of impeachment, Trump presents arguments in his defense.
He claims the Senate lacks jurisdiction to try a removed president for impeachment “because he holds no public office from which he can be removed, and the Constitution limits the authority of the Senate in cases of impeachment to removal from office as the prerequisite active remedy allowed the Senate under our Constitution.”
He argues that if the Senate acts on this impeachment, “it will have passed a Bill of Attainder in violation of Article 1, Sec. 9. Cl. 3 of the United States Constitution.”
He argues that the article of impeachment violates his right to free speech under the First Amendment.
He argues that the House deprived him of the due process of law “in rushing to issue the Article of Impeachment by ignoring it own procedures and precedents going back to the mid-19th century.”
“The lack of due process included, but was not limited to, [the House’s] failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article, as well as the failure to conduct any full and fair discussion by allowing the 45th President’s positions to be heard in the House Chamber.”
Trump warns that if the Senate does not rule in his favor, it would set a precedent that “such persons as the 45th President similarly situated no longer enjoy the rights of all American citizens guaranteed by the Bill of Rights.”
“There was no exigency [requiring a fast impeachment], as evidenced by the fact that the House waited until after the end of the President’s term to even send the articles over and there was thus no legal or moral reason for the House to act as it did,” Trump argues. “Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States.”
Trump also claims that “by charging multiple alleged wrongs in one article, the House of Representatives has made it impossible to guarantee compliance with the Constitutional mandate in Article 1, Sec. 3, Cl. 6 that permits a conviction only by at least two-thirds of the members.”
By “interweaving different allegations rather than breaking them into counts of alleged individual instances of misconduct,” the article of impeachment muddies the waters in debate. If the Senate voted to convict Trump, “it would be impossible to know if two-thirds of the members agreed on the entire article, or just on parts, as the basis for vote to convict.”
Finally, Trump notes that Supreme Court Chief Justice John Roberts has agreed not to preside over the impeachment trial, and Democrats picked Sen. Pat Leahy (D-Vt.) to preside. “Once the 45th President’s term expired, and the House chose to allow jurisdiction to lapse on the Article of Impeachment, the constitutional mandate for the Chief Justice to preside at all impeachments involving the President evidently disappeared, and he was replaced by a partisan Senator who will purportedly also act as a juror while ruling on certain issues,” Trump argues.
The former president presents a very strong case in his defense. Not only does he make salient arguments for his innocence of the specific charge of “incitement of insurrection,” but he also warns against the dangerous precedent this impeachment would set for free speech and for due process.
The impeachment trial is scheduled to begin next Monday, February 7.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.