Takeaways from legal filings for Trump's impeachment trial

House Managers Preview Senate Impeachment Trial Argument

Trump 'summoned a mob,' Democrats say in formal impeachment brief

Lawyers for former U.S. president Donald Trump have denied he "incited insurrection" against the United States Government in an official response to the article of impeachment filed against him.

Mr Trump's legal team and the nine House of Representatives Democrats set to prosecute him filed briefs with the Senate one week before the trial is scheduled to begin.

Nonetheless, as it stands Trump figures to walk out of the Senate a victor.

The House Democrats, in their pretrial brief, anticipated that post-presidency argument and rejected it. "Either you stand with the republic or against it".

The utter failure of Republicans to uphold their constitutional responsibilities would be made all the more obvious by the weakness of the former president's response to the impeachment - or, more accurately, the lack thereof. Federal authorities are also investigating militia groups who met before Trump spoke and organized travel in advance of the January 6 rally, which took place the day Congress met to count the electoral votes.

Other defendants to take this route include Jacob Chansley, who donned a horned headdress during the attack, and Dominic Pezzola, a member of the Proud Boys right-wing group who is accused of shattering a window in the Capitol so rioters could enter.

The new Trump team, not surprisingly, isn't pursuing the Big Lie either. It would not only ensnare them in falsehoods (when attorneys lie professionally, they can lose their licenses), it would add to the contention that Trump supported, even encouraged the insurrection and that it was justified. In other words, it would hurt his case, not help it. "That mob was incited by". The problem is they didn't do that, and that is the fundamental flaw in this impeachment trial, constitutionally speaking.

Members of the 100-seat Senate will serve as jurors in his trial.

Mr Trump's team also denied he had fomented violence, saying in their 14-page brief that his remarks to supporters shortly before they stormed the Capitol that Democrats contend incited violence were protected under the US Constitution's First Amendment right to free speech. That's another swing and a miss.

The First Amendment, they write, does not apply to an impeachment proceeding. For example, President Nixon's command to the Federal Bureau of Investigation to stand down in investigating the Watergate affair.

"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", the brief states.

It only gets worse from there.

But impeachment managers argued that Trump's constant promoting of unfounded voter fraud accusations fueled his supporters into backing efforts to overturn the election. Both concepts, again, are borrowed from criminal law; they have no relevance to impeachment. And even if we read the "due process" complaint metaphorically, it's obvious that Trump is being afforded ample notice and opportunity to defend himself. It too is errant, but it is likely to carry the day. In the Tuesday filing, it's the bare assertion - with no argument from text, structure or history - that the Constitution itself does not permit the Senate to try an official whose term has expired. In at least two historical instances, senators have already allowed impeachment trials to go forward even after the defendant was "removed". Democrats say there is precedent, pointing to an 1876 impeachment of a secretary of war who resigned his office in a last-ditch attempt to avoid an impeachment trial. The House impeached him anyway, and the Senate then tried him, though he was ultimately acquitted.

Whether Trump will be convicted remains uncertain - although the prospects are slim. Though Trump raised about $175 million in a joint venture with the Republican National Committee, he spent just $10 million on legal costs while spending almost $50 million on ads and fundraising, according to The New York Times.

It is a shame, literally, that any Republican senator would shirk their duty to pass judgment on the merits of the case against Trump.

This long-dead U.S. politician of the past is suddenly quite key to the present and the question as to whether an out of office politician can actually be impeached.

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