The Senate impeachment trial of former President Donald Trump is scheduled to begin next week. Today, both sides filed legal briefs with the Senate outlining how the case will be prosecuted and defended. Although there are no real surprises contained in either document, they do lay the groundwork for what we will see unfold on the floor of the upper chamber.
The 80-page House brief sets forth a detailed narrative of events leading up to the January 6 riot at the Capitol plus a lengthy argument, based on the Constitution’s text, original understanding, and historical practice, why the Senate has jurisdiction to conduct an impeachment trial of a president after he leaves office.
The House brief minces no words in its introductory paragraphs:
In a grievous betrayal of his Oath of Office, President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election. As it stormed the Capitol, the mob yelled out “President Trump Sent Us,” “Hang Mike Pence,” and “Traitor Traitor Traitor.” The insurrectionists assaulted police officers with weapons and chemical agents. They seized control of the Senate chamber floor, the Office of the Speaker of the House, and major sections of the Capitol complex. Members and their staffs were trapped and terrorized. Many officials (including the Vice President himself) barely escaped the rioters. The line of succession to the Presidency was endangered. Our seat of government was violated, vandalized, and desecrated. Congress’s counting of electoral votes was delayed until nightfall and not completed until 4 AM. Hundreds of people were injured in the assault. Five people—including a Capitol Police officer—died.
The legal and constitutional issue concerning whether the Constitution’s impeachment powers can be used to try a former president has been playing out in the press over the weeks since January 6, with constitutional scholars on both sides of the issue weighing in. Recently, an unsuccessful Senate motion by Sen. Rand Paul, R-Ky., to dismiss the impeachment article against Trump because of this issue received 45 votes, all of them from Republicans.
Those 45 votes are significant, however, because the Constitution requires 67 votes to convict Trump, which appears unattainable if those 45 Republicans continue to believe the Senate has no jurisdiction over the former president.
And that’s why half of the House brief is dedicated to what lawyers would call an “originalism” argument – that the text and its common understanding at the time the Constitution was drafted indicate that the Framers understood and intended the impeachment power (and its subsequent power to bar the individual from future federal office) extended beyond an officeholder’s term.
It remains to be seen whether the House brief sways a significant number of those Senate Republicans who are already on record holding a contrary view.
The president’s legal team, consisting of attorneys Bruce L. Castor, Jr., and David Schoen, are brand new to the proceeding, having only been hired in recent days after Trump and his original team parted ways over strategy.
The 14-page brief filed on Trump’s behalf gives a perfunctory denial of the claim that he incited an insurrection at the Capitol, asserts that his speeches were protected by the First Amendment, and argues that the Constitution does not give the Senate authority to try a former president now that he is a private citizen.
“The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed, and the Constitution limits the authority of the Senate in cases of impeachment to removal from office as the prerequisite active remedy allowed the Senate under our Constitution,” the brief reads.
In addition, the president’s lawyers argue that proceeding with the impeachment trial now would violate another provision of the Constitution.
“Should the Senate act on the Article of Impeachment initiated in the House of Representatives, it will have passed a Bill of Attainder in violation of Article 1, Sec. 9. Cl. 3 of the United States Constitution,” they argue.
A bill of attainder is a legislative act that singles out an individual or group for punishment without a trial.
The impeachment trial is scheduled to begin on February 9.
Photo from LEAH MILLIS/REUTERS