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Trump’s legal team argues Senate can’t convict him, his speech protected by 1st Amendment

By Jeremy HerbManu Raju and Lauren Fox, CNN Updated 3:24 PM ET, Tue February 2, 2021

Former President Donald Trump’s legal team argued Tuesday that he cannot be convicted by the Senate because he is no longer in office, previewing what’s likely to be one of the biggest points of contention during Trump’s Senate impeachment trial that begins next week.Trump’s lawyers filed a 14-page response to the House’s impeachment effort on Tuesday, its first filing ahead of the trial. Trump’s lawyers, Bruce Castor and David Schoen, argued both that the Senate cannot vote to impeach Trump when he no longer holds office as well as that Trump’s speech about the election and before the January 6 riots is protected by the First Amendment.

“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,” Trump’s team wrote.

The House impeachment managers, in their pre-trial brief filed Tuesday, pushed back directly on that point, which Senate Republicans have coalesced around as a reason to acquit Trump, arguing there is ample history and precedent to hold a trial and convict Trump, who was impeached by the House while still in office.

“There is no ‘January Exception’ to impeachment or any other provision of the Constitution,” the managers wrote. “A president must answer comprehensively for his conduct in office from his first day in office through his last. “House Democrats noted that Trump was impeached while he still was president, pushing back on Senate Republican arguments that Congress cannot impeach a former official. Still, they argued there’s precedent for impeaching former officials, too, as there have been a handful of cases in US history.

The House impeachment managers charged that former Trump is “singularly responsible” for inciting the insurrection at the Capitol last month, arguing that the Senate should convict Trump and bar him from holding future office after he “threatened the constitutional system that protects the fundamental freedoms we cherish.

“The House managers laid out their case against Trump in an 80-page pre-trial legal brief filed Tuesday morning, in which they accused Trump of stirring up violence against Congress in an attempt to upend the peaceful transfer of power. They also provided a constitutional defense for holding an impeachment trial of a former president.

“President Trump’s responsibility for the events of January 6 is unmistakable,” the House impeachment team wrote. “President Trump’s effort to extend his grip on power by fomenting violence against Congress was a profound violation of the oath he swore. If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.

“Both the House impeachment managers and Trump’s legal team are expected to submit additional pre-trial briefs ahead of the start of the trial on February 9. The legal briefings will provide the backdrop for a case in which the House impeachment managers face a skeptical Senate Republican conference.

Last week, 45 of the 50 GOP senators voted to support dismissing the trial on constitutional grounds, a sign that the 67 votes required for conviction are unlikely to materialize.

Trump’s legal filing briefly touched on the former President’s baseless and false claims that the election was stolen from him, disputing that his claims were false but arguing they were protected speech nevertheless.

“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,” Trump’s lawyers wrote. “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.

“There was no evidence of widespread voter fraud, and Trump embraced conspiracy theories to falsely claim the election was stolen from him. The Justice Department confirmed it did not uncover evidence of widespread voter fraud. Trump’s filing Tuesday revives claims his campaign made about the voting process that were repeatedly thrown out of the courts, which is what led Trump to focus his efforts on the January 6 congressional certification of the election that was disrupted by the insurrectionists in the deadly riot.

Trump’s team denied the charge that his rhetoric in a speech on January 6 incited the mob that attacked the Capitol. “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,” his team wrote.

But the House’s brief provided the impeachment managers most detailed argument to date for why Trump’s actions surrounding the January 6 attack on the Capitol warranted impeachment. The impeachment managers argue that Trump’s actions in the months leading up to January 6 baselessly claiming the election was stolen from him created the conditions for a violent mob to be aimed “like a loaded cannon down Pennsylvania Avenue” to attack the Capitol.

“President Trump created a powder keg on January 6. Hundreds were prepared for violence at his direction. They were prepared to do whatever it took to keep him in power,” the managers wrote. “All they needed to hear was that their President needed them to ‘fight like hell.’ All they needed was for President Trump to strike a match.

“In a preview of what’s likely to be argued during next week’s trial, the Democrats’ filing Tuesday underscored how the rioters themselves have cited Trump as the reason they attacked the Capitol.

House Democrats also charged that Trump failed to respond to the riots, including reports that Trump was “delighted” as the riot was unfolding, and noting that his tweets did not attempt to tell the rioters to leave the Capitol. Democrats argued that the events of January 6 and the former President’s involvement had longer-term ramifications that threatened the security of inauguration and beyond.

Roughly 25,000 National Guard troops were deployed and state capitols around the country had to enhance security. The Democrats also highlighted the bipartisan condemnation of the President’s conduct, citing Senate Minority Leader Mitch McConnell’s comments that the mob was “provoked by the President” and statements form the 10 Republican members, including No. 3 House Republican Liz Cheney of Wyoming, who voted for impeachment.

“Representative Liz Cheney put the point simply when she recognized that ‘[t]here 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 wrote.

The brief also looks to get ahead of the arguments Trump’s team could make. Democrats anticipated, for instance, that Trump’s legal team might argue against the speed at which Democrats moved on impeachment, which the House passed one week after the riots.

The managers dismissed those concerns, arguing “this case does not involve secretive conduct, or a hidden conspiracy, requiring months or years of investigation.” The managers also argued that Trump was not simply protected by the First Amendment laws governing free speech.

First on CNN: Liz Cheney gets boost from McConnell amid divisive intraparty battle over Trump's impeachment

First on CNN: Liz Cheney gets boost from McConnell amid divisive intraparty battle over Trump’s impeachment”The First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office,” they wrote.

The House’s impeachment brief also made the case for the Senate to bar Trump from holding future office. If the Senate convicts Trump, which requires a two-thirds majority, it can also hold a vote to prevent him from holding office again.

“Constitutional history, text, and structure, as well as prior Congressional practice, all confirm that the Senate has jurisdiction to try President Trump,” the managers wrote. “So does common sense. While sworn to faithfully execute the laws — and to preserve, protect, and defend the Constitution — President Trump incited insurrection against the United States government.

His conduct endangered the life of every single Member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security.”

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