Over my years as a law professor and practitioner, I have read thousands of draft pleadings written by law students and junior lawyers. Their quality varies, but I would be hard-pressed to think of a more incompetent piece of advocacy than that produced by Donald Trump’s defense team, for a client they insistently refer to as “the 45th President of the United States”.
The first line of the brief is directed to “the Honorable, the Members of the Unites States Senate.” There are probably three errors in that first line. No need for the first comma, or “the” before Members. “The Honorable Members” would have been fine. And unless the alternative Trump legal universe is appealing to the senators of an alternative Unites States, that “s” after “Unite” would be error number three.
“Unites” is, if not the correct word, at least a word, meaning an automated spellcheck would not pick it up. But really, did no human cast their eyes over the first line of a pleading to be submitted for the former president of the United States in an impeachment trial? And remarkably, there it is again, on page nine: “The Honorable, the Members of the Unites States Senate.” So the new legal team apparently does know how to cut and paste, but it seems no one even looked at the text when they used that odd locution a second time.
Then there’s the matter of length. The brief is fourteen pages total. It serves as a response to a dense, 80-page legal brief filed by House impeachment managers to outline their case against Trump. If this were a boxing match, it would have been stopped by the top of page two.
Nevertheless, the lawyers for “the 45th President of the United States” persisted.
They put forward the argument made by other, more serious lawyers that you can’t remove an officer of the United States after they are no longer in office. That is the subject of a longer debate, but neither the text nor practice going back to the time of the Founders supports such a position. Otherwise, the most corrupt coup plotter and insurrectionist can see whether his own posse fails, then leave ahead of impeachment proceedings.
Trump’s lawyers not only put forward that position, they repeat it multiple times: the article of impeachment is “void ab initio”, they write, and a “legal nullity”, and “moot”. They get points for the Latin, of course, but they are saying essentially the same thing in three different ways, without ever citing any authority or making any coherent argument.
From there, they move into the sorts of advocacy that would have required a law student to repeat my course. They assert that if the Senate were to convict Trump, that would “constitute a Bill of Attainder” under the Constitution. The citation is correct, but the Bill of Attainder clause has nothing to do with the impeachment process. A Bill of Attainder is a legislative act that provides for punishment without a judicial trial. Before the Constitution, colonial legislatures would pass a law stating, for example, that Mr X committed treason; he should be immediately executed. Like a Marjorie Taylor Greene tweet, but with legal power. The Framers of the Constitution later said you can’t do that.
It does not mean that Trump cannot be convicted and removed from office. Impeachment by the House and trial in the Senate is specifically provided for in the Constitution. It is a political process; not a legislative punishment. The argument put forward here is a bad one.
Trump’s lawyers also seem to view themselves as crusaders for free speech, a cause Trump himself was much in favor of when it was his own. When CNN or NBC criticized him, of course, he wanted to take away their licenses. And he thought it was a good idea to hold up the Defense Department funding bill unless Congress repealed the exemption for social media when they questioned his dangerous lies. But now he only wants to support our “unique on earth” First Amendment that protects “unpopular speech.”
Inciting thousands of people to march on the Capitol while the electoral votes are being counted is not speech at all. It is encouraging criminal activity, which the Supreme Court has affirmed is a type of verbal act not protected by the First Amendment.
Trump’s lawyers maintain that his claim of having “won it by a landslide” was correct, and that his calls to “fight like hell or you’re not going to have a country anymore” had nothing to do with the Capitol “as it was clearly about the need to fight for election security in general.” Presumably, that was what he was thinking when he dispatched a crowd of enraged and at times obviously armed individuals to head down to the Capitol, then sat back as the undermanned Capitol police and delayed National Guard were beaten and, in the case of one police officer, killed.
As one lawyer to another, those are what we call bad facts. Stay away from them.
If there isn’t a case for impeachment, then the remedy is, yes, void ab initio and a legal nullity. But looking at the legal craftsmanship, I would suggest 1) reading your brief before filing, 2) avoiding patently frivolous constitutional arguments, and 3) not calling attention to the fact that your jurors survived a near-death experience that you set in motion.
Eric Lewis is a human rights lawyer and a board member of the parent company that owns The Independent
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