“The billions who live forever will be a testimony to my work, and the billions who are murdered to buy that immortality will be the continuance of my work.” – Jha’dur, “Deathwalker” Babylon 5
The January 6 insurrection and the second Trump impeachment will forever be the testimony, if you will, to the ex-president’s self-absorbed lie that he really won last year’s election. This week, his lawyers provided an answer to the charges laid against him by the House of Representative – and in that answer was the continuance of that lie.
Buried in the various and flimsy constitutional arguments (but critically underpinning the strongest one), the lawyers drop this whopper on the Senators who will act as jurors in the trial (Washington Post).
Democrats drew a direct line between Trump’s rhetoric and the violence. But Trump’s defense team argued that free-speech protections allowed him to make such allegations without penalty.
“The 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,” the brief states.
“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false,” his attorneys added.
In other words, Trump is claiming he shouldn’t be convicted for the effects of his lies because, well, he doesn’t think he’s lying.
Kimberly Wehle lists Trump’s other arguments in the Bulwark.
The defense lays out several arguments: (1) that the Constitution categorically forbids trial of a former official, even if impeached while still in office; (2) that Trump’s due process rights were violated by impeaching him so quickly and without a thorough investigation by the House of Representatives; (3) that the First Amendment protects Trump’s public calls to the mob on Jan. 6, including his statement that “if you don’t fight like hell, you’re not going to have a country anymore”; (4) that the impeachment article violates the Bill of Attainder Clause of the Constitution; and (5) that Trump’s claims of a fraudulent election were founded on the theory that COVID-related changes to election laws were not uniformly passed by state legislatures and signed by their respective governors and thus invalid.
As Wehle notes, arguments 1, 2, and 4 are rather ridiculous. The Senate has already tried former executive branch officials; private citizens can suffer far more consequences from an indictment than Trump has from impeachment (namely, none); and the Bill of Attainder argument “is that impeachment is per se unconstitutional.”
As for the First Amendment issue, Trump’s lawyers could have chosen several ways to argue this one while avoiding the direct question of whether or not Trump’s stolen-election myth was false. However, Trump himself “wanted them to make the case during the trial that he actually won the election” (WaPo). So the lawyers had to challenge Biden’s victory. They even had to refer to Trump as “the 45th president” – rather than the former president.
The trial begins on Monday, but Trump’s lawyers have drawn the line in the sand. Any Senator who votes to acquit is endorsing that stolen-election narrative. Any Senator who votes to acquit is endorsing the nonsensical claim that Joe Biden didn’t win the election. Any Senator who votes to acquit is voting to condone or to endorse the insurrection on January 6. Any Senator who votes to acquit is voting to condone or to endorse the sacking of the Capitol.
This may be unpleasant to Republican Senators and their supporters, but it is also unavoidable.