Former president Donald Trump’s newly installed lawyers have now previewed their impeachment defense, filing a brief in response to House Democrats’ formal allegations against Trump.
Below are some takeaways.
1. Shrugging off Trump’s claims
Much of the filing from Trump’s new lawyers, Bruce Castor and David Schoen, dwells upon two things: the alleged unconstitutionality of impeaching a former president and Trump’s First Amendment right to free speech. But it also, despite suggestions to the contrary, alludes to the supposed legitimacy of Trump’s baseless voter-fraud claims.
Trump had reportedly wanted to pursue a strategy more focused on legitimizing those claims, but that contributed to the departure of his previous legal team. The new strategy is more amenable to Republican senators who have suggested they would prefer to acquit Trump on procedural grounds.
After the rift in Trump’s team, Schoen assured The Washington Post on Sunday night that the defense wouldn’t focus on Trump’s fraud claims. But then, in an appearance on Fox News on Monday night, he suggested Trump might actually have received more votes than the results show — “75 million or more” — despite Trump having received 74.2 million votes.
The brief is a mixed bag on this. It focuses more on the constitutionality question, but it also alludes to the idea that Trump’s claims might actually have merit, despite the courts overwhelmingly rejecting them.
“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,” the brief says.
House impeachment managers have pointed to Trump’s claim in his speech Jan. 6 before the storming of the Capitol in which Trump said that “we won this election, and we won it by a landslide.”
But again, Trump’s lawyers suggest this might actually be a legitimate statement, despite its laughable premise. (Even if Trump somehow won, it would take many millions of fraudulent votes for it to have been a landslide.)
“To the extent Averment 5 alleges his opinion is factually in error, the 45th President denies this allegation,” the brief says.
What’s notable about both sections is how they cite Trump without stating these claims in their own words. This is a convenient way to sidestep Trump’s claims without actually vouching for them. It cites Trump in a way that distances his own lawyers from it, which is telling about how comfortable they are about prosecuting his actual claims.
2. Defending a Trump that doesn’t exist
Throughout the brief are curious allusions to Trump’s conduct that don’t really reflect the facts.
“It is denied that President Trump intended to interfere with the counting of Electoral votes,” it says at one point.
Except Trump most definitely did that. Whether you believe his motivations were pure or his actions warranted, Trump suggested five times on Jan. 6 that Vice President Mike Pence reject the results. His team went to court to reject Pennsylvania’s electoral votes. He also supported a far-flung lawsuit from Texas Attorney General Ken Paxton (R) that sought to invalidate multiple states’ electors.
At another point, in reference to Trump’s call with Georgia Secretary of State Brad Raffensperger (R) seeking to get Raffensperger to flip that state, the brief says, “It is denied President Trump made any effort to subvert the certification of the results of the 2020 Presidential election.”
“Subvert” is a subjective word. But Trump most definitely attempted to halt or reverse the certification of results in multiple states in which it had already taken place — and after officials like Raffensperger had assured that their certifications were legal and reflective of valid election results.
Finally, the brief says, “It is denied [Trump] threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government.”
Again, we’re talking about somewhat subjective things. What does it mean to threaten the integrity of the democratic system? What does it mean to interfere with the peaceful transition of power?
But Trump clearly attacked the integrity of the election in a way that the courts routinely found to be without merit. Polls have shown vast majorities of his base believe the election results to be invalid in a way that tracks with Trump’s allegations. Given how baseless they have turned out to be, it’s not a stretch to say that he threatened the integrity of the democratic system, even if you somehow believe such a thing was warranted.
As far as interfering with a peaceful transition of power? Trump repeatedly declined to commit to such a thing. His administration also resisted cooperation with the incoming administration when it became clear that President Biden had won.
Trump might not have explicitly endorsed or engaged in a forceful attempt to retain power on Jan. 20, but his actions clearly damaged both faith in democracy and the transition that preceded that date.
3. No real First Amendment argument
The second main element of Trump’s defense — beyond the alleged unconstitutionality of the trial — is that his speech was protected under the First Amendment.
But such speech includes demonstrated limits. Yet the brief doesn’t go into any real detail on this argument, bypassing a discussion of why exactly Trump’s conduct didn’t cross well-established legal lines on speech and instead implying some kind of blanket protection.
“The actions by the House make clear that in their opinion the 45th President does not enjoy the protections of liberty upon which this great Nation was founded, where free speech, and indeed, free political speech form the backbone of all American liberties,” the brief says.
It adds: “It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect.”
And: “Like all Americans, the 45th President is protected by the First Amendment. … If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”
And: “It is admitted that President Trump addressed a crowd at the Capitol ellipse on January 6, 2021, as is his right under the First Amendment to the Constitution and expressed his opinion that the election results were suspect.”
To read all of that, you would think you are entitled to say whatever you want. But there are well-established limits on the First Amendment. The most oft-cited example is yelling fire in a theater. That applies here. Yes, you have free speech, but such speech is also limited in instances in which it unduly harms others (as in cases of libel or slander) or could lead to harm of others (as in the case of incitement).
Such a discussion is almost wholly absent from the brief, which is odd, but it will undoubtedly be a major point of contention in the trial next week.
4. Another first-page error
It’s perhaps a small point in the scheme of things. But throughout the Trump-inspired legal challenges to the results of the 2020 election, his lawyers and allies have put forward shoddy filings that seemed to lack even the most basic review.
Such was also the case Tuesday.
As The Post’s Philip Bump noted, the brief — as with some of its predecessors — features an error on the very first page.
“To: The Honorable, the Members of the Unites States Senate,” the brief begins, misspelling “United” as “Unites.”
Trump’s former lawyer, Sidney Powell, and others acting on his behalf have repeatedly filed briefs with errors, including many, like this one, on the very first page. Mistakes happen — and I’ve made them and will continue to — but given the stakes, it doesn’t exactly speak to an exacting legal strategy.