U.S. House of Representatives Files Reply to Former President Trump’s Impeachment Trial Brief

February 9, 2021
Press Release

Washington, D.C. – Today, the House Impeachment Managers, on behalf of the U.S. House of Representatives, filed with the Secretary of the Senate a Reply Memorandum to the Trial Memorandum filed by former President Donald J. Trump in his impeachment trial. In their Reply, the Managers respond to former President Trump’s meritless legal arguments and baseless assertions. 

In the Reply, the Managers write:

President Trump’s pre-trial brief confirms that he has no good defense of his incitement of an insurrection against the Nation he swore an oath to protect.  Instead, he tries to shift the blame onto his supporters, and he invokes a set of flawed legal theories that would allow Presidents to incite violence and overturn the democratic process without fear of consequences.

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Because President Trump’s guilt is obvious, he seeks to evade responsibility for inciting the January 6 insurrection by arguing that the Senate lacks jurisdiction to convict officials after they leave office.  This discredited argument has been rejected by scholars across the political spectrum, including many of the Nation’s leading conservative constitutional lawyers, one of whom recently took to the pages of the Wall Street Journal to urge the Senate to accept jurisdiction over this trial.  This argument has also been rejected by the very scholars on which President Trump principally relies, several of whom have taken exactly the opposite position as the position President Trump incorrectly ascribes to them in his trial memorandum.

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The First Amendment protects our democratic system—but it does not protect a President who incites his supporters to imperil that system through violence.  In the words of the Nation’s leading First Amendment scholars, the argument that the First Amendment prevents the Senate from convicting the President is “legally frivolous.”  Accepting President Trump’s argument would mean that Congress could not impeach a President who burned an American flag on national television, or who spoke at a Ku Klux Klan rally in a white hood, or who wore a swastika while leading a march through a Jewish neighborhood—all of which is expression protected by the First Amendment but would obviously be grounds for impeachment.

In response to some of the President’s baseless arguments, the Managers write:

A.           President Trump Cannot Reasonably Deny Responsibility For Inciting The Insurrection

President Trump only increases his own responsibility by pointing to indications that some of the attackers planned the insurrection “several days in advance of the rally.”   That fact underscores that President Trump knew exactly what he was doing in his campaign to overturn the election. 

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President Trump does not help his case by arguing that his January 6 speech was intended to encourage his supporters to press for “election security generally.”   To call this argument implausible would be an act of charity.  The rally, set for the day when Congress was to count the electoral votes, was the culmination of President Trump’s months-long campaign to overturn the results of a specific election he lost.  In his speech, President Trump did not direct his supporters to go home and lobby their state legislatures, but instead directed them to march to the Capitol and fight.

B.            The Senate Has Jurisdiction To Try This Impeachment

President Trump does not even attempt to explain why the Framers would have provided that a sitting President found to have endangered the Nation should be disqualified from returning to office, but a former President found to have done the exact same thing should be free to return ….  It is inconceivable that the Framers designed impeachment to be virtually useless in a President’s final weeks or days, when opportunities to interfere with the peaceful transfer of power are most present.

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President Trump asks why, for example, the House did not impeach President Nixon after he resigned.   The answer is that impeachment, conviction, and disqualification were unnecessary where President Nixon resigned in disgrace, acknowledged wrongdoing, and was already barred from running again for President by the Twenty-Second Amendment.   By contrast, President Trump has described his conduct as “totally appropriate,” refused to accept responsibility for his abuses, and is eligible to seek the Presidency—and assault the democratic process—yet again. 

C.           The First Amendment Provides No Defense to Conviction and Disqualification

President Trump’s speech was not a criticism of public policy—rather, it was a repudiation of his oath of office as he incited a violent insurrection and then manifested callous indifference to its deadly consequences. 

D.           President Trump Has Received From Congress All The Process He Was Due

President Trump now argues that the House did not need to act expeditiously because his term ended without “apocalyptic predictions … coming to pass.”   That ignores the fact that the impeachment itself limited the danger posed by President Trump.  The House sent a clear message that the President’s conduct would not be tolerated, and President Trump was undoubtedly chastened in the final days of his term, knowing that he would face a Senate impeachment trial.  

E.            The Senate Is Not Limited To The Standards Of Criminal Law

Under President Trump’s view of the Senate’s power to try impeachments, even if every Senator found that all of the allegations in the article were true, the Senate could not convict because the article does not specifically “describe any violation of law.”   As Chuck Cooper recently put it, the argument that the alleged conduct does not rise to the level of an impeachable offense is “a hard argument to make with a straight face.”   And as Steven Calabresi explained, “Whether or not Trump’s words were a violation of the criminal law, they fall squarely within the Framers’ definition of ‘a High Crime and Misdemeanor.’”  

F.            The Article Does Not Charge Multiple Instances Of Impeachable Conduct

The article does not, as President Trump claims, charge multiple impeachable offenses.  Rather, it charges that President Trump engaged in a single course of impeachable conduct in inciting an insurrection on January 6. …. President Trump appears to borrow his argument from a similar one made (unsuccessfully) during the impeachment trial of President Clinton.    But any comparison to President Clinton’s impeachment does not help President Trump here.  The articles in President Clinton’s impeachment charged that he engaged in “one or more” improper acts.   Thus, unlike this article, the Senate could have convicted President Clinton without a two-thirds agreement on which of the charged improper acts he committed.  Even so, the Senate rejected President Clinton’s effort to dismiss the articles on the ground that they charged multiple offenses.  

Congressman Jamie Raskin will serve as Lead Manager in presenting the case against President Trump.  He will be joined by Congresswoman Diana DeGette, Congressman David Cicilline, Congressman Joaquin Castro, Congressman Eric Swalwell, Congressman Ted Lieu, Congresswoman Stacey Plaskett, Congresswoman Madeleine Dean, and Congressman Joe Neguse.

Click here to read the U.S. House Reply Memorandum to the Trial Memorandum filed by former President Donald J. Trump in his impeachment trial.

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