by Jonathon Moseley
Here is a preview for thinking Americans of some things to look for.
U.S. Senate is scheduled to begin a trial on impeachment of Donald J.
Trump officially announced for "the week of" February 8. According to C-SPAN, that means 1:00 P.M. EST on February 9, 2021. C-SPAN allows you to watch, live or whenever is convenient on demand, on a special web page.
is a preview for thinking Americans of some things to look for. You
will be watching something like playing the Super Bowl in five minutes,
with the best of players slipping and falling all over each other. No
one can elegantly mash a two- to four-week trial into only a couple of
half-days, while the Senate also conducts other business in the
morning. compression will harm Trump's due process.
Each side has submitted briefs. The Democrat impeachment managers released an 80-page trial brief in small print. Trump's new lead attorneys, Bruce L. Castor, Jr. and David Schoen, submitted an "Answer" from Donald Trump later the same day on February 2, 2021. It is only 13 pages in big type plus a conclusion and signature block.
that was not Trump's trial brief. It was a reply to the Articles of
Impeachment. It is in the style of "the allegations of paragraph 48 are
denied in part and admitted in part." That sort of thing.
lawyers need to also file an actual trial brief. However, Castor and
Schoen came on board only late last week. A case of this magnitude and
complexity (more complex than you might think, with lifetime
disqualification from public office and even criminal prosecution
possibly down the line) would normally afford six months to eighteen
months before going to trial. So Castor's and Schoen's Answer for Trump
Trump's new lawyers hit hard on a "bill of attainder." The U.S. Constitution absolutely forbids two things: an ex post facto law and a bill of attainder. An ex post facto law
means that Congress criminalizes something only after you did it
already. In fact, the Democrats are changing interpretations so
severely that they are violating the ex post facto prohibition.
A "bill of attainder"
is a legislature singling out a person for punishment rather than
enacting a law of general application. Because the prohibition in the
Constitution is absolute, Trump's lawyers raise it as a total bar.
other words, they have put tyrannosaurus rex teeth into the argument
that you cannot impeach a former president. They belabor the
circumstances that the articles of impeachment have created: "a class of
one" with only Donald Trump in the class.
supports both an equal protection violation and a bill of attainder
violation. They come close to arguing equal protection, but it sounds
as though they ran out of time before hammering that point home.
clearly, everyone is focused on whether Trump is disqualified from
holding any political office in the future. That could include
something like serving on a board, not just running for
president. Democrats have made clear that their goal is to not face
Trump at the ballot box on November 5, 2024. How convenient and banana
republic–like to disqualify political opponents. The Democrats' fever
is practically an admission that they might lose a rematch with Trump.
news media have been in a fit over whether or not Trump (his lawyers)
will argue that the 2020 election was stolen. Don't bet the farm on
Castor and Schoen being that brave, because most lawyers are really
not. But typically trial lawyers would be mystified by the question
"are you going to argue A or B?" As my law professor asked in a
(pretend) stunned expression: "Why do I have to choose only one?" A
good trial attorney would be required to hit and smash each and every
accusation against his client, in a row. Leaving any accusation alive
is not in a trial lawyer's DNA.
Amazingly, though, Trump's brief reminds us that the Democrats are actually required
to prove that the election was not stolen. The articles of impeachment
do not merely open the door and allow Trump to prove there was election
fraud. They accuse Trump of falsely claiming there was fraud in the election, thereby inciting protests.
you cry "fire!" in a crowded theater? Well, is there in fact a
fire? Then yes. A prosecutor would have to prove there wasn't any
order to prove their case, the impeachment managers are actually
required to prove that Trump's statements were false. The burden of
proof is on the Democrats to prove that there was no fraud anywhere in
the election. If Trump's statements were true or he reasonably
believed they were true, then the articles of impeachment fail. And
Trump should be able to respond. Of course, the Senate won't tolerate
that or allow that much time.
lawyers hit hard on whether Trump's statements were incitement. They
argue not only that Trump was exercising his rights of free speech
guaranteed by the First Amendment, but also that the impeachment trial
violates Trump's constitutional rights for that reason. Trump's Answer
argues that the Constitution "specifically and intentionally protect[s]
unpopular speech from government retaliation."
impeachment managers effectively admit that Trump called for peaceful
lobbying of the Congress, which is an exercise of their right under the
First Amendment to peacefully assemble and "petition their government
for redress." On page 14, their brief quotes Trump as saying:
hope the Democrats, and even more importantly, the weak and ineffective
RINO section of the Republican Party, are looking at the thousands of
people pouring into D.C. They won't stand for a landslide election
victory to be stolen.
is the classic purpose of a lawful and peaceful protest. Many dozens
of protests gather every year in D.C. for this very same purpose: to
gather in large numbers and make their demands be known to their elected
politicians. Every protest is intended to change the government's
policies, positions, or actions.
Democrats accuse Trump of whipping up his supporters. But their brief
is an 80-page rhetorical screed that whips up their own supporters with
inflammatory rhetoric. This is where most attorneys will probably try
to be too nice and respectable. Most won't even know what hit them in a
rhetorical sandstorm. The brief is filled with opinion and incredibly
cites the Washington Post as evidence.
Democrats' brief continues the false narrative that Trump generated the
protests. They actually say Trump "announced" the "Save America March"
— which was organized by others. Women for America First filed for a
permit from the Park Service. The protest at the Capitol was planned
earlier than December 23. The Capitol Police media office is staying
mum about the permit issued for the northeast corner of the Capitol
grounds. But Trump did not suggest that anyone go to the
Capitol. There was already a 1:00 P.M. demonstration with a permit
pre-planned on the Capitol grounds.
Answer also challenges the way that the articles of impeachment
commingle and confuse allegations of different events and charges, in
violation of Senate Rules and the Constitution. In that way, it is
impossible to know if senators are all voting for the same charges or
some voting for a few charges and others for different charges.
Totally neglected by everyone: the January 2 phone call. But I'm out of space. Maybe in another installment.
Image: Gage Skidmore via Flickr, CC BY-SA 2.0.
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