The Democrat memo alleges that Trump incited a mob that breached the U.S. Capitol on Jan. 6 by sowing doubt about the integrity of the 2020 presidential election. The memo by Trump’s legal team denies the allegation and argues that the trial is unconstitutional because Trump is no longer president.
Democrats face an uphill battle in the Senate. Forty-five Republican senators voted in favor of a resolution calling the trial unconstitutional, since Trump is now a private citizen. With the Senate split 50–50, the impeachment managers would have to convince 17 Republicans that the trial is constitutional and that Trump is guilty of inciting an insurrection.
Trump’s defense team tied nearly every argument in the trial memo to the overarching point that the trial is unconstitutional. They argued that since the Constitution states that “impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office,” Trump cannot be tried since he can’t be removed.
“The constitutional provision requires that a person actually hold office to be impeached,” the defense memo, authored by Bruce Castor and David Schoen, states. “Since the 45th President is no longer ‘President,’ the clause ‘shall be removed from Office on Impeachment for …’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution.”
The Republicans’ focus on the constitutionality of the trial wasn’t lost on the impeachment managers, who devoted a significant portion of their memo to the argument that impeached former officials can still be tried. The impeachment managers’ memo cites a number of precedential examples, though none pertaining to a U.S. president. They argue that the Framers didn’t make a specific exception for former presidents and intended for impeachment and conviction to serve as a deterrent against corruption throughout their entire term in office.
“The Framers were too savvy to make up a new rule, at odds with centuries of historical practice, that would allow officials to escape accountability by resigning at the last minute, or by waiting until near the end of their tenure in office to commit abuses, or by concealing misconduct until after they left public service,” the impeachment managers’ memo states.
“This would create extremely dangerous and perverse incentives, especially for Presidents who sought to retain power by subverting election results in their final days. In designing the Constitution, the Framers aimed to ensure that the President could never become a King; they did not leave the Nation unprotected against abuse surrounding the transfer of power from one administration to the next.”
The Democrats’ trial memorandum cites excerpts from Trump’s Jan. 6 speech in Washington as evidence that he incited an insurrection. For example, the memo claims that Trump exhorted followers to “fight like hell [or] you’re not going to have a country anymore.”
The president had actually said in reference to his team’s courtroom efforts challenging the integrity of the election: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
Another selective quotation shows Trump saying: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” A look at the previous sentence from Trump’s speech, which the Democrats omitted, shows that he was addressing the lawmakers who were convened to vet and certify the Electoral College votes.
“We’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them,” Trump said.
Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) on Feb. 1 warned his Democratic colleagues against calling witnesses during the trial, threatening to call the FBI to testify.
“If you open that can of worms, we’ll want the FBI to come in and tell us about how people pre-planned this attack and what happened with the security footprint at the Capitol. You open up Pandora’s Box if you call one witness,” Graham told Fox News on Feb. 2.
Trump replaced his lead legal counsel over the weekend. His new team, led by Schoen and Castor, will have just over a week to get ready before the trial.