Former President Donald Trump’s legal defense team insisted in a legal brief filed on Tuesday that he shouldn’t be convicted for impeachment in the Senate ― in part by continuing to push the same election fraud claims the former president spouted to supporters who went on to storm the Capitol on Jan. 6.
Trump’s lawyers submitted the brief to the Senate ahead of its impeachment trial, which is set to begin in earnest next week. Their chief argument is that because Trump is no longer president, the Senate cannot convict him. In fact, there is precedent for impeaching and trying officials after they leave office. (Less important: The legal brief misspells “United States” on its first page.)
But the legal brief also makes other, more dangerous arguments. It states that Trump denies that he made false statements when he claimed the election results ― which he lost resoundingly ― were fraudulent. It claims that states used the coronavirus pandemic as a “convenient guise” to expand voting by mail, in line with Trump’s monthslong effort to cast mail-in ballots as suspect. And it states that Trump denies he made a false claim when he said “we won this election, and we won it by a landslide.”
The brief also denies that Trump “intended to interfere with the counting of Electoral votes” ― a laughably false claim, given that he pushed for his vice president, Mike Pence, to reject electors in the very speech where he told supporters to march on the U.S. Capitol.
In fact, after those supporters overwhelmed Capitol Police barricades and broke into the Capitol, Trump tweeted his disappointment in Pence for refusing to break the law and reject the certified electors submitted by states that voted for President Joe Biden.
“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” Trump tweeted at 2:24 p.m. as Pence hid inside of the Capitol from rampaging Trump supporters. The tweet launched a round of chants of “Hang Mike Pence!” from insurrectionists inside the Capitol. One insurrectionist later said the crowd “went crazy” after they learned from Trump’s tweet that “Pence turned on us and that they had stolen the election.”
Trump’s legal brief also contains a lie claiming that when Trump told the crowd, “if you don’t fight like hell, you’re not going to have a country anymore,” he was only talking about “the need to fight for election security in general.”
The inflammatory statement that Trump supporters would not “have a country anymore” if they “don’t fight like hell” was, in context, about Trump’s lies about election fraud and not some general election security policy.
“I think one of our great achievements will be election security, because nobody, until I came along, had any idea how corrupt our elections were,” Trump said. “And again, most people would stand there at 9 o’clock in the evening and say, ‘I want to thank you very much,’ and they go off to some other life, but I said, ‘Something’s wrong here. Something’s really wrong. Can’t have happened.’ And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
Trump said that no one cared about “election security” until he made false allegations about the 2020 election. There is a long history of legal debate over election security extending back decades, if not further. Both chambers hold hearings to discuss election security policies routinely. The House of Representatives held an election security hearing as recently as August 2020. Trump, however, was asking his supporters to “fight like hell” on behalf of him and his election fraud lies, and not any election security policy, whether it be specific or general.
That statement was then followed by Trump telling his supporters, “Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans for our movement, for our children and for our beloved country and I say this, despite all that’s happened, the best is yet to come.”
At this promise of exciting adventures, Trump then reiterated his call for his supporters to march on the Capitol, “to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country.”
The call to “fight like hell” then is clearly connected to the call to march on the Capitol to force Congress to overturn the result of the election.
In fact, all mentions of fighting, of which there are many, are connected to the effort to overturn the result of the election.
Earlier in his speech, Trump praised his lawyer Rudy Giuliani and Rep. Jim Jordan (R-Ohio) by calling them fighters.
“He’s got guts, unlike a lot of people in the Republican party,” Trump said about Giuliani. “He’s got guts, he fights. He fights, and I’ll tell you.”
“For years, Democrats have gotten away with election fraud and weak Republicans, and that’s what they are,” Trump said. “There’s so many weak Republicans. We have great ones, Jim Jordan, and some of these guys. They’re out there fighting the House.”
The context of these statements clearly shows that “fighting” to Trump, in this speech, means working to overturn the result of the election. Giuliani had just called for “trial by combat” to cheers from the crowd before receiving this praise from Trump.
Another way to see that the argument made by Trump’s lawyers in their brief is false is to see how Trump’s statement was received by the crowd.
After Trump exhorted his supporters to “fight like hell,” the crowd burst into chants of “Fight like hell!” Previously, the crowd chanted, “Fight for Trump!” These chants continued as the Trump supporters reached the barricades around the Capitol and clashed with police.
Trump is being represented by lawyers Bruce Castor and David Schoen after other members of his legal team left over the weekend, reportedly in part because they disagreed with Trump’s push to defend himself by continuing to claim election fraud.
Republicans are eager to dismiss Trump’s second impeachment trial by claiming it’s too late now that he’s out of office. That argument, of course, allows them to avoid the central question: whether the president did something wrong when he spent months boosting election fraud claims and, the morning of Jan. 6, riled up a crowd of supporters that later stormed the Capitol, which resulted in five deaths, including one police officer.
In their own filing to the Senate, House Democrat impeachment managers argued that Trump put lives in danger and must be found guilty of inciting the violence at the Capitol.
“His conduct endangered the life of every single Member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security,” the Democrats wrote. “This is precisely the sort of constitutional offense that warrants disqualification from federal office.”
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