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Donald Trump's impeachment filing fails to make a case for acquittal

Chris Truax, Opinion columnist
·5 min read
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Former President Donald Trump filed a formal response to the article of impeachment currently awaiting trial in the Senate and it was about what you’d expect. Trump makes three main arguments. The first is that it isn’t constitutional to impeach a president after he has left office. The second is that this impeachment proceeding violates Donald Trump’s First Amendment right to free speech. The final argument claims that the single article of impeachment actually charges multiple instances of impeachable conduct and, therefore, isn’t in the proper legal form.

The first argument — that the Senate lacks jurisdiction to conduct an impeachment trial of an ex-president — has been extensively dealt with elsewhere and logic, precedent, prudence are all on the side of proceeding with the trial. In short, it’s not so much a legal argument as a convenient excuse for Republicans desperately hoping to avoid the twin disasters of either endorsing Trump’s efforts to overthrow American democracy or infuriating Donald Trump’s fan base and drawing a primary challenge.

Absurd arguments against impeachment

The last argument, that the single article of impeachment is improper because it charges multiple instances of impeachable conduct, is the most lawyerly but it’s also an effort to get people to focus on the leaves rather than the forest. The charge is that “Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” The impeachment trial in the senate is not a criminal trial and there is no reason to treat it as if it were. But even if it were a criminal trial, there is no requirement that the prosecution only allege that a defendant violated the law in just one way. Federal jury instructions don’t require such unanimity. “In order to return

a guilty verdict, all twelve of you must agree that at least one of these [illegal acts] has been proved; however, all of you need not agree that the same one has been proved.”

But by far and away the most absurd argument is that Donald Trump is a First Amendment martyr. There is a Pythonesque “Help! Help! I’m being repressed!” feel to the idea that the impeachment trial is punishing Trump for exercising his constitutional right to free speech.

Former President Donald Trump on  Nov. 26, 2020, in Washington, D.C.
Former President Donald Trump on Nov. 26, 2020, in Washington, D.C.

First of all, Presidents of the United States don’t have the same “free speech” rights as normal citizens because they have taken an oath of office to “preserve, protect and defend the Constitution of the United States.” As a private citizen, I am free to argue for overthrowing American democracy and replacing it with, say, an Islamic theocracy if I want and the First Amendment protects me. But the president of the United States can and should be impeached for doing the same thing. It's insane to suggest that impeaching a president for advocating the overthrow of American democracy will somehow impact the First Amendment rights of ordinary citizens.

Trump's impeachment: If all his lawyers quit, Trump should represent himself at his Senate trial

More to the point, organizing and encouraging a plot to incite insurrection isn’t speech that is protected by the First Amendment. Nor is making legally-actionable defamatory statements that directly damage our democracy. A great many of the statements that Donald Trump made between Nov. 3, 2020 and Jan. 6, 2021 were outright lies specifically intended to whip his followers into a frenzy.

Regardless of the outcome of the impeachment trial, Donald Trump is likely going to be sued by Dominion Voting Systems for telling outrageous, damaging lies about how Dominion helped “steal” the election. Rudy Giuliani and Sidney Powell already have been. Fox and other media outlets who promoted these claims are in the legal crosshairs as well. If Trump is facing the wrong end of a $1.3 billion defamation suit for telling lies that damage a private company, there is absolutely no reason the Senate can’t try him on the same lies for damaging American democracy.

Trump jurors are the ones on trial

At the end of the day, “high crimes and misdemeanors” are things that damage our fundamental democratic institutions. An impeachment trial is a solemn exercise in preserving those institutions from harm. It isn’t a criminal trial and it is unwise to think of it that way. The First Amendment notwithstanding, the question before the Senate is whether Donald Trump’s actions in the two months following the election — actions that culminated in a violent assault on the Capitol aimed at disrupting the electoral college vote count — were acceptable behavior for a U.S. president. If the answer is “no,” then senators of both parties should put aside their political interests and their political fears and vote to convict.

Legal reason for impeachment: Of course the Senate can hold a Trump impeachment trial. There's no real legal argument against it.

There is no fig leaf for Republicans in Donald Trump’s defense. There is no dispute about what happened. If Republican senators refuse to condemn that behavior, for whatever reason, they are endorsing what Donald Trump has done. Donald Trump may be the defendant, but it is his jurors who are on trial.

Chris Truax, an appellate lawyer in San Diego, is a legal adviser for The Guardrails of Democracy Project, CEO of CertifiedVoter.com and a member of USA TODAY's Board of Contributors. He is also a spokesman for Republicans for the Rule of Law.

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This article originally appeared on USA TODAY: Bad arguments being made against the impeachment proceedings