A Comprehensive Legal Analysis of Trump's Answer to the Article of Impeachment

If you suspect Trump's defense team doesn't have a leg to stand on, you're right.

Here are the twelve main issues with Trump’s answer to the Article of Impeachment:

1. Trump’s attorneys confuse “impeachment” and “conviction.” Trump was duly impeached while he was still president. The only question now is whether he can be tried for that impeachment after leaving office. Trump’s answer wrongly states that the United States Senate is trying to impeach him post-presidency. It is not.

2. Trump’s lawyers have misread the “and” in Article I, Section 3 of the United States Constitution to mean that “conviction” post-impeachment is a prerequisite to being disqualified from future office. It is not—as what the relevant provision actually says is that there are two potential punishments for a post-impeachment conviction, and they are (a) removal from office, “and” (b) disqualification from future office. There is no other word the Founders could have used to express that these are the two valid post-conviction penalties after an impeachment trial. Trump is deliberately misreading “and” to represent a chronological sequence of events, but there’s no particular reason to do so—as the two penalties are quite different, and (in the instance of, say, someone who tries to resign right before conviction) the second penalty would still be applicable and indeed urgent even if the first no longer were. In short, the Founders created two possible penalties in this sort of situation to ensure that elected officials couldn’t resign immediately prior to conviction in order to preserve their right to run for office again. In this case, while Trump didn’t resign, he did commit incitement to insurrection so late in his term that his trial could not be held prior to the end of his presidency—a circumstance he created, not Congress. A circumstance of his own vile devising cannot now be allowed to give him immunity from the second of two punishments that the Founders envisioned following an impeachment trial.

3. Trump, through his lawyers, eviscerates into meaninglessness Section 3 of the 14th Amendment by leaving it unclear precisely who has the authority to determine that a person has committed an act of insurrection and therefore cannot serve in an office of public trust in the future. One could certainly argue that only a federal court can do so—upon a federal criminal conviction for such an offense, presumably—but Trump does not argue this, nor does he explain why Congress is allowed (under the Constitution) to impeach and remove an elected official from office for engaging in insurrection, and, further, can disqualify that person from future office under another provision of the Constitution, but is prohibited from doing so under Section 3 of the 14th Amendment. The Founders would have been explicit in prohibiting this power to Congress and reserving it for another body if that had been their intent. Trump’s interpretation of these clauses creates a nonsense—which courts don’t allow in matters of constitutional interpretation.

4. Trump’s response to the allegation that he violated his Oath of Office amounts to no more than, “No I didn’t!” Ultimately, the power is vested in Congress to make this determination, and to be very clear, the standard here isn’t a criminal one—Congress doesn’t need to find a violation of a federal criminal statute. By way of example, the sort of “abuse of power” allegations we’ve historically seen in cases of presidential impeachment do not, in themselves, outline a federal crime. So Congress could determine that Trump had violated his Oath of Office and was removable even without criminal incitement being proven against him beyond a reasonable doubt, contrary to the presumption inherent in Trump’s answer.

5. Trump’s First Amendment defense is fraudulent on all grounds. First, he falsely alleges that his January 6 speech and public statements in the week prior to that speech only involved his upset that certain state courts, state legislatures, and state governors had enacted revised election protocols in mid-pandemic that he considered improper. In fact, Donald Trump, as the head of the executive branch, attempted to usurp the authority of the co-equal judicial branch by declaring the determinations of that branch to be “illegitimate” and—because he did so while being the President of the United States, not a mere citizen, and because he and his allies have advanced the so-called “theory of the unitary executive”, which holds that a president is “above” the other two branches of the U.S. government—Trump calling these perfectly legal, valid, and final court rulings “illegitimate” convinced his followers that they in fact did not have the force of law, and that therefore the state elections they governed were themselves illegitimate. Second, Trump eliminates from any of his public remarks, on January 6 or otherwise, any reference to claims of voter fraud that the evidence reveals he knew were false and inflammatory when he uttered them, though it is these claims, not the ones about election protocols being altered because of the pandemic, that he used to incite an insurrection. Third, Trump’s January 6 address was not, as he and his lawyers now claim, focused on the past; nor was it focused broadly on election security. Trump repeatedly returned to the present and near future by focusing obsessively on an event that was about to unfold at the Capitol—a joint session of Congress to certify Biden’s electoral victory—and Trump’s demand that his followers “fight” to “stop” it by marching to the Capitol. Trump even said he would be marching with them and advised them on how best to get the Capitol Hill. The notion that his public remarks on January 6 and before were merely retrospective is contradictory to the facts before the Senate; indeed, no person in America did more to promote the January 6 march on the Capitol that then-President Trump did. He promised it would be “wild” and elevated inflammatory tweets, literature, and speakers for weeks before the event. He then had his political director Brian Jack book speakers for the event, including Rep. Mo Brooks, who incited violent insurrection at the Capitol with the very speaking slot Trump had gifted him.

6. Trump falsely claiming that he won the 2020 presidential election would be covered by the First Amendment if he weren’t the President of the United States at the time he said it. In certain instances, public officials can have a diminished First Amendment right when they are speaking on matters within their purview. While Trump is not obligated to concede the 2020 presidential election formally or congratulate Joe Biden on winning it in a popular-vote and electoral-college landslide, when a president declares himself the winner of an election he in fact lost by millions of popular votes and 74 electoral-college votes it is what the law considers a “performative” speech-act: that is, it’s a public statement that makes something happen merely with the utterance of it. The most commonly used example of this is an explorer planting a flag an exclaiming, “I claim this land for [country]!” While such a statement can certainly be contested by any number of others, if the explorer in question has been authorized by the Government of [country] to make such a statement, making the statement above in the hearing of others would constitute an attempt to stake a legal claim with the “utterance” of it. Just so, Trump’s supporters have every right under the First Amendment to say that he won the 2020 election when he didn’t, but if Trump does so—as the then-current president, the chief executive of the government’s executive branch, and one of the parties with a vested legal interest in the outcome of the election—he is engaging in a performative speech-act or utterance that indicates he’s making an actionable legal claim. Trump is of course entitled to such a speech-act or utterance prior to a final determination on the question of the general election by the leaders of a co-equal branch of government—the Supreme Court, the head of the judicial branch—but if he (and he specifically) continues to make such a claim after he has lost all his legal challenges, as he certainly did, he is asserting the authority as president to make a determination that is not his to make and that may, further, incite insurrection against the man who actually won the election. So Trump and his lawyers pretending he’s merely a “private citizen” who has the same First Amendment rights as anyone else ignores the fact that while engaged in the conduct now alleged against him he was not a private citizen and was not similarly positioned to private citizens with respect to the First Amendment.

7. Neither Trump nor his attorneys nor any Republican has yet explained what Donald Trump’s intent on January 6 actually was. That he now claims his speech was about election security broadly writ can be discarded as an argument, as it does not comport with anything he actually said on the date in question. But his more specific claim that he did not intend the mob he spoke to to “interfere” with the joint session of Congress or be “destructive” in any way is likewise so contrary to the facts that the burden shifts to Trump and his team to explain what he anticipated the response to his speech to be. In his speech, he told his followers to “stop” the “steal” happening at the Capitol by “fighting like hell” up at the Capitol, with him alongside them. He told them that the consequences of not “stopping” the “steal” up at the Capitol by “fighting like hell” would be the end of America itself. Yet now he says “fight” was metaphorical—and so was “stop.” No jury in America, Senate or otherwise, would credit this claim, so it falls now to Trump to paint a picture of a march on the U.S. Capitol on January 6 that would have “stopped” the “steal” and “saved America” and involved “fighting like hell” but was also (a) entirely peaceful, and (b) not an interference or attempted interference of any kind with the joint session of Congress Trump’s speech was explicitly scheduled to end just before. We have yet to hear any such narrative from Trump or his lawyers or his allies and we don’t get it in his answer, either.

8. Trump’s reference to other times in American history that slates of electors have been contested is irrelevant on two counts: first, the circumstances of those instances were dramatically different, in that there had been a prior concession by the Democratic candidate and consequently there was no concerted effort to overturn any election results rather than lodge a merely symbolic protest; second, Trump’s actions at the Ellipse have nothing to do with the fact—the accurate observation—that senators have a right to protest slates of electors should they have an evidentiary basis to do so. By January 6, more than 60 federal courts had rejected any and every argument proposing the general election was fraudulent; every state had certified its slate of electors without incident; and Trump’s own administration (Chris Krebs) had called the election the most secure in history. Because Trump did not concede—and based on calls made by his attorney Rudy Giuliani to Tommy Tuberville, and a mountain of other evidence of Trump and his agents’ public and private statements on the matter—it was clear that, despite the foregoing, the objections lodged in Congress on January 6 were not symbolic but a bona fide attempt to overturn a certified democratic election. Thus Trump’s discourse on the history of senators symbolically objecting to individual slates of electors based on uncontested evidence is wildly inapt.

9. That Trump was working with his allies in the DOJ to get involved in Georgia’s post-election recount at the time he told the Secretary of State of Georgia that he could be charged with a federal crime for not following the president’s directions during the recount is uncontested. It cannot credibly be claimed, as Trump attempts to in his reply, that he didn’t threaten Brad Raffensperger with federal prosecution, nor that he wasn’t concurrently taking clandestine actions that would have given that threat real teeth. Moreover, Trump cannot now claim that he merely wanted Raffensperger to only “find” all legal votes in Georgia because he expressly told Raffensperger at the time of their now-infamous call that he only “needed” enough votes to win the state. Had Trump not threatened DOJ action against Raffensperger, and had he consistently, during his phone call with him, demanded only that every legal vote in Georgia be located—no matter how many or how few there were that had, in Trump’s view, not yet been located—the call would have been wildly inappropriate but not part of a coordinated insurrection. Unfortunately, the facts are what they are: Trump was using his authority as president to rig events at DOJ and to try to rig Georgia’s election to the specific outcome he wanted. He told Raffensperger exactly how many votes the Georgia secretary of state needed to “find”—and it was the exact number Trump needed to win the state.

10. There’s no real response required to Trump’s “Answer #8,” as this entire section of Trump’s answer to the Article of Impeachment merely lauds Trump for being a great president who always did the right thing and always acted selflessly. For contradictory evidence, see any major-media report written on Trump since 2015.

11. Trump’s “due process” argument is the same one that was debunked over and over and over again a year ago, during his first impeachment trial. But anyway, to repeat: impeachment is a political process, not a legal process, so the rules of evidence and other conventional courtroom protocols don’t apply. Even beyond this, “impeachment” equates—if it equates to anything at all—to “indictment” in the criminal justice system, and most indicted federal defendants have been so indicted (a) without their knowledge, (b) by a grand jury that sat in secret without ever being selected by the defendant or his/her attorney, and (c) without any witnesses being called and examined before that grand jury by the defendant or his/her attorney. So to be “impeached” without public hearings or the calling of witnesses is literally no different from what happens to nearly every defendant in America when they are indicted. The question of “due process” arises at trial, not the impeachment stage. That Congress historically conducts an “impeachment inquiry” pre-trial, and sometimes gives the official being investigated a chance to suggest witnesses, is a political nicety with no foundation in law and—far more importantly, here—does not apply when a president has, by his own vile decision, acted in an arguably impeachable way within 14 days of the end of his presidency. Trump cannot leave Congress no time to participate in political niceties and then complain not only about the lack of political niceties but also a “due process” to which he is not entitled at that stage of the proceedings in any case. And finally, because Trump’s actions—willful and voluntary—implicated nationally security, as he was repeatedly warned by his attorneys they would do, it was his decision, not Congress’s, to put America in the position of having to move as quickly as possible with impeachment. He can’t complain about these consequences of his actions now.

12. Trump’s answer suggests, at its close, that Congress has now created a “special category” of persons that includes the President of the United States, and has then singled this category out for worse treatment than average citizens receive. (The inapplicable legal term used by Trump’s lawyers here is “bill of attainder.”) Not only is this facially preposterous—as of course the President of the United States has certain obligations and privileges that average citizens do not have—but it is made positively obscene by the fact that Trump spent four years in office daily touting his right to special (and better) treatment in all legal proceedings than any other citizen would receive. Indeed, in every lawsuit seeking tax records or other materials from the president, in every civil lawsuit by a private citizen alleging he had committed some tort, Trump’s response was that as President of the United States he had to be treated differently from everyone else—and better. Now that he’s incited an insurrection, he wants to pretend he’s just the guy who lives next door to you? It’d be laughable if it weren’t an affront to our democracy, our rule of law, our justice system, our electoral infrastructure, our traditions and values and first principles, the Constitution, and everything else both average citizens and the President of the United States alike are supposed to hold dear.

Note: I’m not going to address Trump’s claim that Chief Justice John Roberts must preside over his trial or it’s invalid, as it’s based on the specious claim that Democrats conspired to hold this trial after Trump’s term was over so that the senior member of the majority party in the Senate—in this case, Democratic Sen. Patrick Leahy of Vermont—could preside. In fact, we all know the Democrats begged Sen. Mitch McConnell to call the Senate back in session prior to January 20 so that a trial could begin with Justice Roberts presiding. McConnell, then a top Trump ally, flatly refused.

I’ll say, on a separate note, that there is one element in Trump’s answer I consider actually interesting, and that I haven’t previously considered here at Proof: the question of what in the law we call “severability.” Can an Article of Impeachment allege more than one impeachable offense, thereby making it harder for an elected official to defend against it, and more difficult for a juror to independently weigh each allegation or charge? I don’t know, as that’s a thorny constitutional question. Having said this, I’m also not sure it’s really a question raised by this particular Article of as written. Moreover, the fact that you can have an Article of Impeachment for “Abuse of Power” that outlines individual acts that arguably could be separately impeachable and/or criminal would seem to suggest that this argument by Trump’s defense team lacks merit.

I will say that this is the only part of Trump’s answer I would want to think more on and see some constitutional scholar address. That said, it is unlikely to be a substantial focus of any of the parties in the present impeachment trial, in part—ironically—because McConnell’s actions put Leahy in the judge’s chair rather than Justice Roberts, and no one (not Trump, not the Democrats) will want to put a legal question to Leahy if they can avoid it, as the appearance of bias would be problematic for all concerned.

Trump’s real recourse, if he considers the Article of Impeachment to be faulty in this way, would be to file a writ with the Supreme Court and try to get the severability issue addressed there before the trial starts. But I doubt Trump would do that, as it’s not clear that it would invalidate the Article (let alone the impeachment) rather than simply result in Trump and his attorneys facing two or three Articles rather than just one. And the more the fact-patterns involved in this case are made distinct, the harder (not easier) GOP senators may find it to acquit Trump without political consequences.