Trump's impeachment team argues case is unconstitutional, falsely says there's 'insufficient evidence' about his election claims

  • Trump’s lawyers filed their first brief in the defense for his second impeachment trial.
  • They argue that Trump being put on trial after leaving office is unconstitutional. 
  • The lawyers also say that Trump’s speech before the Capitol insurrection is protected. 
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Former President Donald Trump’s team of lawyers argue that trying Trump after he has left office is unconstitutional and that his speech prior to the Capitol riot was not incitement and is protected under the First Amendment. 

On Tuesday morning, the House impeachment managers filed their first brief arguing the case for convicting Trump on a charge of inciting the January 6 insurrection.

In the filing, impeachment managers said that “in a grievous betrayal of his Oath of Office, [Trump] incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election.”

However, Trump’s lawyers, Bruce L. Castor Jr. and David Schoen, argued in their 14-page brief that it is “moot” for the Senate to try and convict Trump for incitment of insurrection and “in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office.” 

The House’s impeachment managers directly refuted that argument in their own brief, saying that “there is no ‘January Exception’ to impeachment or any other provision of the Constitution.”

Trump has for several months falsely insisted that the election was rife with fraud and stolen from him. His lawyers say that Trump had a right to express his opinion that the results were “suspect” and so is protected by the First Amendment’s right to free speech. 

“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false. Like all Americans, the 45th President is protected by the First Amendment,” the lawyers say.

Notably, courts rejected nearly 60 post-election lawsuits filed on behalf of Trump and his allies aiming to halt the counting of votes, get ballots thrown out, or invalidate the presidential election results in multiple states. Many of the false claims of voter and election fraud that Trump pushed were not just a matter of opinion, but have no evidence backing them up or have been definitively disproven by courts or officials. 

Trump also told attendees of his Save America Rally on January that “if you don’t fight like hell, you’re not going to have a country anymore.” His defense team says that his words were not related to any specific action he wanted the protesters to take at the Capitol and was “clearly about the need to fight for election security in general.” 

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