Just over a month ago, rioters and insurrectionists attacked the Capitol and killed five people. They traipsed through the House and Senate chambers, taking photographs of themselves and rifling through the effects of the lawmakers who fled their approach. They disrupted and delayed the counting of electoral votes to formally transfer power to President Joe Biden. They pillaged and looted the citadel of American democracy. Now the Senate, gathered in that same building, will decide the fate of the president who sent them there.
It’s hard to imagine Donald Trump sinking lower, but he found a way. Trump is now the first federal official in the two-and-a-half-century history of the republic to be impeached twice and tried twice. Last year, he stood accused of abuse of power and obstruction of justice for a convoluted scheme to sabotage Biden’s candidacy through the Ukrainian government. This time, he will defend himself against a single charge—incitement of insurrection—for encouraging his supporters to prevent Biden’s presidency by force.
There is no real, substantive defense to these charges. Americans watched Trump spread lies about the election for months before the riot. He warned in dark and ominous terms that the country was in danger and that his supporters needed to fight back. “You’ll never take back our country with weakness,” he told supporters at a rally outside the White House on January 6. “You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.” Even after his supporters trampled themselves and beat police officers, Trump praised them as “very special.”
They listened to him; took their cues from his directives. Multiple alleged rioters have told the courts that they acted on Trump’s orders. Two journalists from The New York Times obtained a cache of cell phone location data from Washington on January 6 from an anonymous source. The Times’ time-lapsed map of location pings shows a swarm of rally attendees traveling to Capitol Hill and even entering the Capitol itself. “About 40 percent of the phones tracked near the rally stage on the National Mall during the speeches were also found in and around the Capitol during the siege—a clear link between those who’d listened to the president and his allies and then marched on the building,” the Times reported.
Trump doesn’t want to talk about any of this. In 2019, he put up a spirited, albeit misleading defense of his actions in the Ukraine scheme, all while denouncing the process as an illegitimate “coup.” This time, he’s not bothering with the substantive explanation of what he did. In their formal answer to the charges, his legal team instead grounded his defense in procedural complaints. This is what he wants the trial to be about: Trump, and how Trump is the real victim here, and definitely not what he did that brought him to this ignominious place.
The main line of defense from Trump’s lawyers is that the impeachment trial is invalid because Trump no longer holds federal office. “Article I, Section 3 of the Constitution states ‘judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor,’” Trump’s lawyers argued in their answers. “Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office,” they contend, he can’t be disqualified from holding office again because he doesn’t currently hold it.
Other legal experts have noted that this reading would make the disqualification power toothless. An impeached official could simply resign moments before the final Senate vote to avoid it. In this case, the Trump team also selectively misread the provision in question. They omitted the remainder of the sentence, which adds the following: “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Taken together, the passage is clearly meant to limit the Senate’s powers by ruling out imprisonment or execution, not to spell out a specific way that senators must exercise the powers of removal or disqualification.
What’s more, this narrow view of the impeachment power would effectively write presidents a blank check to abuse their power before leaving office. “It is unthinkable that those same Framers left us virtually defenseless against a president’s treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck,” the House managers argued in their brief. “There is no ‘January Exception’ to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.”
The other portion of Trump’s defense rests on free speech grounds. “Like all Americans, the 45th President is protected by the First Amendment,” his lawyers contended. “Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation. If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”
This is a perfectly Trumpian mishmash of nonsense. His lawyers constantly refer to him as the forty-fifth president, as if calling him the “former president” would inflict some sort of psychic damage upon his wounded soul. It emphasizes how Trump is the victim here, not the people injured or killed last month because of him.
This argument is also deeply flawed in other ways. As the House managers argued in their own brief, the First Amendment exists to protect Americans from free speech infringements by their government, not to shield members of that government from the consequences of their actions. “The question in this case is not whether to inflict liability or punishment on a private citizen; instead, the Senate must decide whether to safeguard the Nation’s constitutional order by disqualifying an official who committed egregious misconduct,” they wrote.
More than 140 legal experts who study First Amendment issues also rejected the notion that Trump’s role in the January 6 riots can be justified on free speech grounds. “Imagine a president who publicly announces, ‘I no longer promise to preserve the Constitution,’” they noted. “Such a declaration would not be illegal—indeed, the First Amendment would almost certainly bar Congress from making it illegal—but the president could still be impeached for betraying the oath of office.” Among those who signed the letter were First Amendment scholar Floyd Abrams and Federalist Society co-founder Steven Calabresi.
Another line of defense that’s been implied in some pro-Trump arguments is that his January 6 speech doesn’t prove an intent to incite a riot. They often home in on his passing mention that the protest should be “peaceful,” ignoring both the violent imagery in the rest of his remarks and in his remarks leading up to January 6 itself. As I’ve noted before, Trump relishes political violence against his opponents that’s impossible to ignore. “You know, the left plays a tougher game, it’s very funny,” Trump remarked in a Breitbart interview in 2019. “I actually think that the people on the right are tougher, but they don’t play it tougher. OK? I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump—I have the tough people, but they don’t play it tough—until they go to a certain point, and then it would be very bad, very bad.”
This refutation of Trump’s self-defense may be too esoteric to move any Republican senators, let alone the numbers needed to convict Trump. Indeed, this impeachment trial, like the last, may be a fait accompli as there are no real incentives for GOP senators to undo the stain of their previous disgrace. In any case, this is a fairly uncomfortable strategy in an impeachment trial. Depending on how articulate Trump’s lawyers turn out to be, they could end up telling 100 senators that the president had a constitutional right to encourage a mob to attack them. For his part, Trump has declined an opportunity to testify in his own defense. I can’t really blame him. There’s nothing left to say.