House Democrats have sent the impeachment charge of “incitement of insurrection” to the Senate, kicking off the trial process.
WASHINGTON – House Democrats and former President Donald Trump’s legal team each offered written arguments Tuesday describing how they will approach the historic Senate impeachment trial against an ex-chief executive no longer in public office.
House prosecutors said Trump aimed a mob of supporters “like a loaded cannon” before the deadly riot Jan. 6. Trump’s legal team, in its first formal response to the impeachment charge, argued the trial would be unconstitutional because he is a private citizen.
Tuesday’s filings clarified that House prosecutors and Trump’s lawyers will spar over the constitutionality of the trial and whether Trump’s words provoked the mob that stormed the Capitol. Important facets of how to conduct the trial, such as whether to call witnesses, are still up in the air days before the start of oral arguments Feb. 9. Both sides said the trial could be finished in a week without witnesses, or it could run into April with sworn testimony.
The House article of impeachment charges that Trump incited the insurrection with a fiery speech before a violent mob invaded the Capitol and left five people dead, including a police officer. The riot came after Trump spent months questioning the legitimacy of the election and pleaded with Georgia officials to “find” votes to allow him to win that state.
“The only honorable path at that point was for President Trump to accept the results and concede his electoral defeat,” said the 80-page brief from the nine House impeachment managers. “Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue.”
Trump’s defense team, led by Bruce Castor and David Schoen, filed a reply to the article of impeachment that said the Senate has no jurisdiction over him as a private citizen and thus no way to bar him from public office – if he is convicted.
The filing said Trump believes, as a private citizen, “the Senate has no jurisdiction over his ability to hold office.”
Trump’s team denied he incited the violence. “It is denied that the 45th President engaged in insurrection or rebellion against the United States,” the filing said.
Will the Senate hear from witnesses?
The arguments left unanswered whether the Senate will hear from witnesses.
Republicans have argued that the House rushed in voting to impeach Trump a week after the riot. If Democrats call witnesses, the trial could last months while President Joe Biden is trying to get his agenda approved.
The House brief didn’t explicitly request witnesses at the trial. Neither did the brief the House Intelligence Committee filed before Trump’s first impeachment trial a year ago. For that trial about Trump’s dealings with Ukraine, House Democrats urged the Senate to hear witnesses, which the Senate, then led by Republicans, rejected.
The Senate must vote on a resolution that maps out how the trial will be conducted, including a decision on witnesses. The assistant Democratic leader, Sen. Dick Durbin of Illinois, said he hadn’t seen what language would be included.
“I want to make sure that the case is presented,” Durbin said. “I leave it up to the House managers about how it is to be accomplished.”
Some Democrats are eager to hear from witnesses. Sen. Raphael Warnock, D-Ga., who was sworn in after the riot, said he “absolutely” wanted to hear witnesses.
“I think we need to hear the evidence, and then render a verdict,” Warnock said.
Republicans such as Sen. Lindsey Graham of South Carolina warned that hearing from witnesses would add weeks or months to the length of the trial.
“Well, if you want this to stretch into March or April, start calling witnesses because you’d have discovery and everything else,” said Sen. Roy Blunt, R-Mo. “So it’s a big decision. Neither side is eager to stretch this out for weeks but that’s what will happen if you start calling witnesses.”
House Democrats pin the riot on Trump
The brief from House Democrats outlined the violence that occurred as the mob interrupted Congress counting the Electoral College votes that handed the election victory to Biden.
It pinned the violence on Trump.
“As it stormed the Capitol, the mob yelled out ‘President Trump Sent Us,’ ‘Hang Mike Pence,’ and ‘Traitor Traitor Traitor,'” the brief said.
The brief quoted Rep. Liz Cheney, R-Wyo., the third-ranking Republican in the House: “None of this would have happened without the President,” she said in supporting impeachment. “The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
The impeachment managers issued a joint statement with the brief saying Trump must be convicted to bar him from holding future office.
“There is no ‘January exception’ to the Constitution that allows a President to organize a coup or incite an armed insurrection in his final weeks in office,” the lawmakers said. “The Senate must convict President Trump, who has already been impeached by the House of Representatives, and disqualify him from ever holding federal office again.”
Rep. Jamie Raskin, D-Md., a constitutional scholar, leads the managers. Others on the prosecution team are Democratic Reps. David Cicilline of Rhode Island, Joaquin Castro of Texas, Madeleine Dean of Pennsylvania, Diana DeGette of Colorado, Ted Lieu of California, Joe Neguse of Colorado, Eric Swalwell of California and Stacey Plaskett, a delegate from the Virgin Islands.
The House brief wields Trump’s own words against him. The brief noted that even when Trump released a video statement calling for peace hours after the riot began, and while rioters were still rampaging through the Capitol, he told the insurrectionists “we love you” and “you’re very special.”
The House Democratic brief provides a rebuttal to the defense’s argument against the constitutionality of the trial. It cites cases of other officials being tried after leaving office and language in Article II Section 2 of the Constitution that “strongly supports” impeachment of former officials for “grievous abuses.”
Bradley Moss, a lawyer who specializes in national security issues, said the brief shows why the Constitution has a clause to disqualify people from holding future office.
“The House Managers’ brief lays out in explicit detail the fundamental components of their argument: The former president laid the groundwork with two months of erroneous and incendiary claims of fraud; when he failed to prove fraud, he incited the Jan. 6th mob; and since the attack on the Capitol, he has shown zero remorse for his role in what transpired,” Moss said. “This is exactly why the disqualification clause exists in the impeachment verbiage.”
Trump‘s team: Trial is unconstitutional
Trump and his defenders argued the case is unconstitutional because he has left office.
The Senate Democratic majority was joined by five Republicans in voting to reject that argument last week. The 45 Republicans who supported the effort to deem the trial unconstitutional signaled Trump may have well more than the 34 votes needed for acquittal at his impeachment trial.
Senate Minority Leader Mitch McConnell, R-Ky., suggested he hasn’t made up his mind on how he’ll vote at trial. He said trying a former president is an “interesting constitutional question, and I think we ought to listen to the lawyers argue the question.” McConnell, who was among the 45 who supported calling the trial unconstitutional, said he would “listen to the arguments.”
Trump’s team argued that for the Senate to bar him from office, he must first be removed from office. Because he is already out of office, the Senate can’t accomplish the first step, so a trial is unnecessary.
His defenders denied that his conduct violated his oath to “preserve, protect and defend the Constitution” and that he committed “high crimes and misdemeanors” as required for conviction.
Trump’s defenders said his questions about the legitimacy of the election were protected by the Constitution. The filing said Trump expressed the belief the election results were suspect because of “safeguards” for the COVID-19 pandemic and changes in local laws.
“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,” the filing said.
Trump denied threatening Georgia Secretary of State Brad Raffensperger after asking him to “find” enough votes to overturn the state’s results in his favor, his lawyers said.
“Trump was expressing his opinion that if the evidence was carefully examined one would ‘find that you have many that aren’t even signed and you have many that are forgeries,’” the filling said.
Trump’s team denied that a phrase in his speech Jan. 6 – “If you don’t fight like hell, you’re not going to have a country anymore” – had anything to do with violence at the Capitol.
Trump’s lawyers said they wouldn’t argue that the election was fraudulent, but the filing defended his right to question the results.
“If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all,” the filing said.
Senate Majority Leader Chuck Schumer, D-N.Y., said if Trump’s lawyers raised arguments about election fraud, it would demonstrate they couldn’t answer the House charges. If that happens, Schumer said, he hoped “that Republicans would see that and realize that they have no argument against the charges brought by the House managers.”
Contributing: David Jackson and Christal Hayes
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