Donald Trump Files Response to Impeachment Charge

On Tuesday, the House members prosecuting former President Donald Trump in his second impeachment released their written brief, and Trump’s legal team filed its first official response. Trump is charged with incitement of insurrection over the Jan. 6 Capitol riot. Trump’s legal team indicated that its defense would hinge on the questionable claim that impeaching a former president is unconstitutional.

The filings in Trump’s second impeachment have not been widely published yet, but one of his lawyers, David Schoen, explained the team’s case in an interview with Fox News‘ Sean Hannity on Monday night. He said they would argue that “this process is completely unconstitutional and it is a very, very dangerous road to take with respect to the First Amendment, putting at risk any passionate political speaker which is really against everything we believe in this country.”

“I think it’s also the most ill-advised legislative action that I’ve seen in my lifetime. It is tearing the country apart at a time when we don’t need anything like that,” Schoen went on. He also laid out more process-based arguments that he will make about the trial itself, rather than disputing the actual charges. He questioned why Senate President Pro Tempore Patrick Leahy is presiding over the trial instead of Chief Justice John Roberts.

“Can you imagine any American citizen considering it to be a trial in which the judge and jury has already announced publicly that the defendant must be convicted in this case?” he asked. “And in fact, Senator Leahy called on, demanded that Senator McConnell vote for a conviction… how can we possibly have a fair trial? Chuck Schumer, Senator Schumer, promised a fair and full trial. You can’t, when you know that the jurors and the judge are biased going in.”

The constitutionality argument is unlikely to get Schoen and his colleagues far. There is plenty of precedent for elected officials in the U.S. being impeached after their term is over, for the same reasons the Democrats are doing it now — to legally prevent a potentially violent person from holding public office again. The prosecutors’ brief made this argument again.

“There is no ‘January exception’ to the Constitution that allows a President to organize a coup or incite an armed insurrection in his final weeks in office,” it read. “The Senate must convict President Trump, who has already been impeached by the House of Representatives and disqualify him from ever holding federal office again. We must protect the Republic from any future dangerous attacks he could level against our constitutional order.”