Trump’s defense has rested on arguments that do little to address his culpability for allegedly inciting the mob that stormed the U.S. Capitol on Jan. 6. It has argued that the proceedings themselves are unconstitutional and that Trump has a right to free speech — without focusing much on the established limits on such speech, which include incitement.
The brief his legal team filed Monday reinforces some of the circular and broken logic of his defense — a throw-stuff-at-the-wall strategy that mirrors Trump’s own approach to politics.
While making their constitutionality argument, for instance, Trump’s attorneys repeatedly cite constitutional law professor Brian Kalt’s analysis — no fewer than 15 times, in fact. They note that Kalt has cited the words of founders such as Alexander Hamilton, saying that “Hamilton seemed to believe that removal was a required component of the impeachment penalty, which suggests that he viewed late impeachment as impossible.”
As Kalt has noted, though, the 2001 analysis they cite actually argued in favor of an impeachment and trial after an official was out of office. Kalt merely cited the evidence for both sides and then disputed arguments such as the one above.
The brief states, “When a President is no longer in office, the objective of an impeachment ceases,” and then cites Kalt in a footnote, as though this was his position. What Kalt was actually doing, though, was merely describing that argument. He later concluded that this particular reading of the Constitution was plausible, but that “it is not the only possible one, and it has deep flaws.”
Kalt isn’t the only expert to be misconstrued in the brief. In another footnote, it cites Paul Campos, a professor at the University of Colorado at Boulder, writing in 2019, “Impeachment, in practice, has become something intended solely to remove a corrupt president.”
That sounds as though Campos was weighing in on whether presidents can be convicted after leaving office, given that they could no longer technically be removed, right? Wrong. Campos didn’t address that question at all; instead, his argument was that the 25th Amendment was an alternative available for removing an unfit president who may not technically have committed any high crimes (the standard for impeachment). The operative word wasn’t “remove,” but rather “corrupt.” (Campos told a reporter that Trump’s lawyers citing him like that involved “an incredible amount of chutzpah.”)
At another point, when the brief addresses Trump’s Jan. 6 speech before the Capitol was breached, it suggests that his rhetoric about how his supporters should “fight” wasn’t violent and was clearly meant figuratively. This is a valid defense, given that metaphors permeate our politics. But then his team asserts that Trump mentioned fighting only a “handful” of times.
“Of the over 10,000 words spoken, Mr. Trump used the word ‘fight’ a little more than a handful of times and each time in the figurative sense,” the brief states. In fact, Trump used some variation of the word “fight” 20 times — returning to it throughout the speech. And virtually every time he brought up the word, he repeated it at least once — clearly wanting to make it a theme of his speech.
(An example toward the end: “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” Of his lawyer Rudolph W. Giuliani: “He’s got guts. He fights, he fights.” At another point: “Jim Jordan and some of these guys, they’re out there fighting. The House guys are fighting. But it’s, it’s incredible.”)
Again, that could be seen as speaking figuratively — especially if you ignore all the other times Trump has suggestively referenced actual violence by his supporters — but to suggest that it wasn’t something Trump meant to drive into his supporters’ heads is to bury your own head in the sand.
Trump’s lawyers also claim that Trump acted “swiftly” to quell the violence of Jan. 6.
“The House Managers’ suggestion that President Trump did not act swiftly enough to quell the violence is absolutely not true,” they say in a footnote. “Upon hearing of the reports of violence, he tweeted, pleading with the crowd to be ‘peaceful,’ followed by a tweeted video urging people to ‘go home’ and to do so in ‘peace.’ ”
This has been well dissected, including here and here. Trump spent the early parts of the siege reinforcing his criticism of Vice President Mike Pence, and his tweet arrived well after even many allies had called for him to be more forceful. What’s more, the cited video, which came hours after the siege began, included Trump stating his “love” for the supporters and calling it a day that will be remembered.
And if you need further evidence that it isn’t really the case that Trump acted swiftly, just look at what some of his top Senate allies have said.
“It took him awhile to appreciate the gravity of the situation,” said Sen. Lindsey O. Graham (R-S.C.). “The president saw these people as allies in his journey.”
As late as 7:50 p.m. that evening, Sen. Tom Cotton (R-Ark.) suggested that he still hadn’t seen Trump take a firm enough stand, saying it was “past time for the president to accept the results of the election, quit misleading the American people, and repudiate mob violence.”
Another argument takes issue with how Democrats are prosecuting the case against Trump — by focusing too much on reports about the violence of Jan. 6.
“On January 6, 2021, rioters entered the Capitol building and wrought unprecedented havoc, mayhem, and death,” the lawyers state. “In a brazen attempt to further glorify violence, the House Managers took several pages of their Memorandum to restate over 50 sensationalized media reports detailing the horrific incidents and shocking violence of those hours.”
So the scenes were horrific and “unprecedented,” but also the coverage of them was sensationalized? And talking about them is somehow glorifying violence? It would be one thing to make such an argument while playing down the severity of the situation, but that’s not at all what Trump’s team is doing. In fact, it reinforces again: “Counsel for the 45th President hereby stipulate that what happened at the Capitol by those criminals was horrible and horrific in every sense of those words.” It would seem difficult to overstate that.
One of the most subtly ridiculous parts of the brief is its sourcing. On two occasions, it actually cites the conspiracy-theory-mongering website Gateway Pundit.
The brief claims, “The real truth is that the people who criminally breached the Capitol did so of their own accord.” Its citation is a Gateway Pundit post that begins with the baseless conspiracy theory that anti-Trump forces were behind the siege. “Contrary to allegations leveled by the political left and their allies in the mainstream media, anti-Trump groups primarily perpetrated insurrection on the U.S. Capitol on Jan. 6,” the post begins.
Later, the brief cites Gateway Pundit while asserting that “Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.” For one thing, Trump spoke for more than an hour, so the siege beginning before it concluded wouldn’t absolve him in any way. And for another, the cited Gateway Pundit story is heavily focused on the idea that this wasn’t Trump supporters, but rather an effort by antifa, a group of far-left activists.
Citing Gateway Pundit in any context to bolster your case is not the work of a serious legal team. Trump’s team also misleadingly cherry-picks passages from the work of legal scholars who aren’t saying what the brief suggests — which doesn’t speak well of how well-considered its actual arguments are. The lack of logical coherence while discussing the scenes of Jan. 6 is the icing on the poorly assembled cake.
It’s almost as if the brief was thrown together rather quickly after a late change in Trump’s legal team by people who know that the substance and coherence of their arguments aren’t terribly significant to the 17 Republican senators who would be needed to convict Trump. We’ll see whether those senators demand a little more from them.