Former President Donald Trump’s legal defense against his second impeachment is filled with “absurd constitutional arguments,” Rep. Jamie Raskin (D-Md.), the lead House impeachment manager, reportedly told fellow Democrats on Wednesday. And Democrats are prepared to refute all of them.
The House’s 80-page brief filed with the Senate on Tuesday includes advance rebuttals of every one of the Trump team’s arguments for the trial, which is set to begin next week.
Democrats forcefully rejected the argument that a former president cannot be impeached or tried after leaving office, which will likely be Trump’s central defense. They dismissed the claim that he was simply engaging in free speech, another argument made by Trump’s team. Democrats refuted the argument that Trump did nothing wrong ― as he still claims in his legal filing ― when he ordered his supporters to march on the U.S. Capitol as Congress met to count the electoral votes securing President Joe Biden’s win on Jan. 6.
The House brief contains a detailed description of the events that led up to Jan. 6 and the president’s involvement in inciting the insurrection at the Capitol, but those facts are difficult to dispute. They were broadcast live on television and social media platforms by both the press and the insurrectionists themselves. Many lawmakers were there when it happened.
More complex, though, are the rebuttals of the legal and constitutional issues that Republicans are likely to lean on to acquit the president. Already, many GOP lawmakers have suggested the entire trial should be dismissed.
House Democrats are prepared for those arguments, too. Here’s how they plan to dismantle them.
Ex-Presidents Can’t Be Tried
Trump’s main legal defense is that presidents cannot be impeached or tried once they leave office. Since he cannot be removed from office through impeachment, he cannot be barred from future office, they also argued.
Trump’s lawyers say that “removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office,” and since Trump is no longer in office, such a punishment is “irrelevant to any matter before the Senate.”
The House impeachment brief contains a 25-page rebuttal of the argument that ex-presidents cannot be impeached and tried. This is the longest section of the House brief. And it specifically anticipates that this attempt to dismiss the impeachment trial will be Trump’s main strategy, given “the overwhelming strength of the case against him.”
Trump was not a private citizen when he called on his supporters to march on the Capitol and “fight like Hell or you’re not going to have a country anymore.” He was the president of the United States.
“[T]he notion that a President can attack our democracy, provoke violence, and interfere with the Electoral College so long as he does so through statements advocating such lawlessness would have astonished the Framers,” the House brief says.
Private citizens and government officeholders are held to a different standard when it comes to an assertion of First Amendment protections.
“As the leader of the Nation, the President occupies a position of unique power,” the House brief says. “And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests.”
Bill of Attainder
Trump’s lawyers also claim that any conviction of the former president would amount to a “bill of attainder,” or a punishment enacted by a legislature targeting a single private citizen without trial.
But Trump is facing an impeachment trial in the Senate under rules enacted under the Constitution for official acts that constitute high crimes and misdemeanors committed while in office as the president. And he was impeached by the House of Representatives for these acts while in office.
“There is thus no basis for President Trump to object to the Senate’s jurisdiction over him (or to raise related Bill of Attainder Clause concerns),” the House brief states. “The trial of a former official for abuses he committed as an official — arising from an impeachment that also occurred while he was in office — poses no risk of subjecting private parties to punitive legislative action targeting their private conduct.”
Chief Justice John Roberts Will Not Preside
Finally, Trump’s lawyers argue that any impeachment trial where Chief Justice John Roberts does not preside is not a legitimate trial as the Constitution mandates the chief justice preside when the president is impeached.
“When the President of the United States is tried, the Chief Justice shall preside… ,” the Constitution states.
But Trump is no longer the president. The Constitution does not provide for more than one president at a time. Biden is the president. Since Trump is not the president anymore, the chief justice need not preside.
“Moreover,” the House brief states, “the reason the Chief Justice is summoned is to ensure the Vice President does not preside over a trial where conviction would result in her becoming the President; obviously, that concern is not implicated in the trial of a former president.”
This article originally appeared on HuffPost and has been updated.