A Would-Be Thief’s Briefs

Donald Trump tried to steal the election. The impeachment papers filed by his legal team are laughably weak.

My reservoir of compassion is largely drained during these days of pandemic and recession; but if I had any left over, I might actually be tempted to direct a little at Donald Trump’s latest legal team.

In the run-up to the impeachment trial this month, Trump has been, as always, far harder on his lawyers than on his enemies. His revolving-door representation means that they must go into battle with only a few days’ preparation; that they must make, arguments that fall somewhere between spurious and laughable; and that they must, eventually, be stuck with professional disgrace and an unpaid bill.

That underlying motif—the Trump-lawyer-as-Sisyphus trope—should inform any reading of today’s literary treat, the 14-page brief filed by the Trump legal team. It’s an answer to the 80-page Trial Memorandum filed by the House of Representatives Managers who are prosecuting Trump before the Senate. The Trump brief is a terse tissue of incomplete textual citations, mis-citations of the constitutional doctrine, what philosophers call “infinite regress,” and a somewhat fanciful explanation that all of Trump’s attacks on the election were simply abstract musings on the proper Platonic procedure for free elections.

The House Managers’ brief lays out the most important facts governing the Article of Impeachment. It documents how Trump undermined the 2020 election long before it took place; how he called his followers to Washington for a January 6 protest against Congress’s required approval of the electoral-vote total; how he and those working with him carefully goaded the volatile crowd into a violent assault on the Capitol; how, after learning that the mob was inside the Capitol, he tweeted a fresh attack on his own Vice-President, who was then in mortal danger; and how he refused to speak out to stop the violence or take the actions a commander-in-chief should take to protect the government from assault.

Those actions and inactions, the managers argue, violated the president’s oath of office and his duty to “take care that the laws be faithfully executed,” deliberately attacked the very foundation of the American republic, and recklessly imperiled national security.

Agree or disagree, it’s not a complicated case. Trump’s response is shorter but far harder to follow. Here are Trump’s major defenses, such as they are:

Trump, not being president, can’t be impeached, tried, or punished for his misconduct as president. Trump’s lawyers rely on the wording of Article I that “the President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This, they argue, means that “the Constitutional provision requires that a person actually hold office to be impeached.” The textual argument would have some merit except for two problems. First, Trump actually was “holding office” when impeached; you could look it up—his title was “President.” Second, other parts of the Constitution expand the meaning of impeachment. Specifically, Article I Sec. 3 provides that “The Senate shall have the sole Power to try all Impeachments.” Since Trump was in fact impeached while president, the Senate has the jurisdiction to try him. The Constitution also provides that a convicted official can be subject to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Trump’s lawyers argue that means the president must be removed from office before he can be disqualified. Since he’s not in the office, he can’t be removed. Since he can’t be removed, he can’t be disqualified. It’s not a very good argument. Trump’s lawyers, however, like it. They repeat no fewer than ten times in 14 pages that Trump is no longer president, so olly olly oxen free. Legal argument, however, is not like the “Candyman” movies—just saying the same thing over and over doesn’t bring a monster out of the mirror. Scholars by and large agree that a president who is impeached while in office can be tried after he leaves it.

Trump thinks the election was stolen, and so he did what anybody would do and proposed thoughtful reforms to avoid a repetition. Now look, the lawyers seem to be saying, we don’t necessarily agree with him, because it wasn’t stolen, ok, which is why he’s not president now (we mentioned that before) but still, if you stand on one leg and look at the picture with your head tilted to the left, doesn’t it sort of maybe look a little bit stolen (not that we are saying it is but maybe it was though we aren’t really saying it)? And if the President thought that (not saying he should have thought that but if he did) doesn’t he have a right to disrupt all of American politics because believing this made him very angry and sad?

And anyway, he had a right to say the election was stolen if he thought that, and he didn’t say anybody should do anything about it. “It is denied that President Trump incited the crowd to engage in destructive behavior,” the brief says. “It is denied that the phrase ‘if you don’t fight like hell, you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general.” To anyone who has read the transcript of Trump’s speech, the statement calls to mind a quote from George Orwell’s “As I Please” column: “There are also about eighty ways in the English and American languages of expressing incredulity—for example, garn, come off it, you bet, sez you, oh yeah, not half, I don’t think, less of it or and the pudding! But I think and then you wake up is exactly the suitable answer.”

C’mon, get real, which of us hasn’t at one time or another called a Secretary of State and asked him to change just a few vote totals? The lawyers admit that Trump called Georgia Secretary Brad Raffensperger and asked him a teeny tiny favor of “find[ing] 11,780 votes, which is one more than we have because we won the state.” But they suggest that is really rather humorless of the House managers to actually suggest that this was in some way improper. “President Trump was expressing his opinion that if the evidence was carefully examined one would ‘find that you have many that aren’t even signed, and you have many that are forgeries.’” Okay, I can’t use Orwell again; so let me say this claim calls to mind a couplet from W.H. Auden about a point of religious doctrine: “Yes, it may be so. / Is it likely? No.”

Those bad people in the House impeached Trump too fast, and they impeached him too slowly. Trump’s lawyers mentioned repeatedly that Trump isn’t president. But then they explain that the House, by rushing to impeach him while he was president, also violated his due process right to have a slow process. Of course, that slow impeachment would then be dismissed because he would no longer be president. The acts for which he has been impeached took place two weeks before the end of his term, so I suppose if you want to be hyper-technical he was “President;” but he was entitled to more than two weeks’ notice of impeachment; if he had gotten more than two weeks’ notice then he couldn’t be impeached, but he didn’t get them so he still can’t.

Since the Chief Justice presides over the trial of the president, and since Trump is not president, the Chief Justice can’t preside over his trial, which is no fair because OK the reasoning behind this one eludes me completely but apparently they don’t think Patrick Leahy is someone they would choose. The Chief Justice presides only when “the president” is tried. So, there’s no reason why he should preside when Trump (did I mention he’s not president?) is tried.

Really, the only meritorious claim in the brief is the observation that Trump is no longer president. That’s what lawyers call an “admission against interest,” and one that the former president should be held to.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.