Support The Bulwark and subscribe today.
  Join Now

Trump’s Lawyers Show Their Cards

Their arguments in the impeachment trial wouldn’t hold up in a real court, but may give Republican senators cover.
February 3, 2021
Trump’s Lawyers Show Their Cards
Sen. Rand Paul (R-KY) boards a car in the Senate Subway as he heads to the Republican Policy Luncheon on January 26, 2021 in Washington, DC. Today senators will be sworn in as the jury for the second impeachment trial of former President Donald Trump. Senate President pro tempore Patrick Leahy (D-VT) will preside over the trial in place of Supreme Court Chief Justice John Roberts. (Photo by Samuel Corum/Getty Images)

After a game of musical chairs, former President Donald J. Trump’s new set of lawyers filed a response on Tuesday to the pending article of impeachment for incitement of insurrection. The document reads like an answer to a complaint in a civil case, providing insight into the thrust of his defense team’s plans for defeating conviction after the trial, which is scheduled to begin on Feb. 9. All told, the lawyers did a tolerable job responding to a horrible set of facts while weakly adhering to their ethical obligations to color within the lines of the law—no small feat when it comes to representing Trump.

The defense lays out several arguments: (1) that the Constitution categorically forbids trial of a former official, even if impeached while still in office; (2) that Trump’s due process rights were violated by impeaching him so quickly and without a thorough investigation by the House of Representatives; (3) that the First Amendment protects Trump’s public calls to the mob on Jan. 6, including his statement that “if you don’t fight like hell, you’re not going to have a country anymore”; (4) that the impeachment article violates the Bill of Attainder Clause of the Constitution; and (5) that Trump’s claims of a fraudulent election were founded on the theory that COVID-related changes to election laws were not uniformly passed by state legislatures and signed by their respective governors and thus invalid.

On this last argument, Trump’s lawyers are careful not to expressly articulate the logical conclusion that flows from it, to wit, that the millions of votes that flowed from those laws are all completely invalid, cancelable, and fraudulent. That argument was roundly rejected by upwards of 90 judges across the country since election day, and for good reason: There is no law anywhere that allows such sweeping relief for complaints about the backdrops for duly cast ballots.

None of these defenses would likely be compelling in a court of law. But they may suffice to give Senate Republicans political cover to blink—once again—at Trumpian wrongdoing in the face of especially horrific facts.

Let’s go through the Trump defense team’s other four arguments one by one.

Sen. Rand Paul (R-Ky.) already tried his hand at the claim that the Constitution forbids a trial after an impeached individual leaves office, and the Senate rejected it—on a bipartisan vote. As I explained last week in Politico, the argument also leads to the ridiculous conclusion that presidents can only go to trial for inciting insurrections if they actually succeed in stealing the Oval Office from the voters and forcing a second term, bloodshed and all.

The same illogic rebuts the due process claim made by Trump’s lawyers. If the House had followed a lengthy investigative process—which the Constitution does not outline or require in any event—it would be impossible to ever impeach an official close to the end of a term. (By “official,” I include cabinet-level officers and the vice president, who are also subject to impeachment under the Constitution, which references the process a whopping six times—a number that underscores how important the Framers considered that lever of accountability.)

Moreover, the Supreme Court has made clear that due process under the Fifth and Fourteenth Amendments to the Constitution does not require a full, probing investigation before life, liberty, or property can be taken away. For sure, a criminal defendant gets the full monty. But the process that the House followed this round is a form of process, and Trump will get more in the Senate come Feb. 9, when his trial begins. For regular people, the Court has denied the right to an evidentiary hearing before the government can terminate disability benefits—even if a recipient’s sustenance and well-being depend on it. Surely, we don’t need to pull out the due process violins for Donald Trump this round.

What about the First Amendment? After all, free speech is a cornerstone of American democracy.

The wrinkle here is that free speech rights are not unlimited. The Supreme Court has made clear that speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. It’s illegal to possess pornographic images of children—despite the theoretical possibility of framing it as “speech.” And the Court has also held that employees of the federal government don’t have unlimited rights to speech on the job. They can be fired or reprimanded for speech that, if made in their private lives, would be constitutionally protected.

Trump’s lawyers don’t attempt to make an argument in their latest papers that Trump was acting as a private citizen when he made his speech on Jan. 6—surrounded by Secret Service on the federal payroll—about what actions should be taken on behalf of him as president so that he could retain his role as president. As a matter of logic—let alone lawyers’ ethical standards for avoiding frivolous arguments—that was a sensible call to make.

At the end of their answer to the incitement of insurrection charge, Trump’s lawyers toss in a reference to the Constitution’s ban on Bills of Attainder. The Supreme Court has defined a bill of attainder as “a legislative act which inflicts punishment without a judicial trial.” In other words, the argument is that impeachment is per se unconstitutional. We’ve heard this one before—Republicans made it during Trump’s first impeachment, arguing that only elections can operate to fire presidents. Joe Biden’s subsequent election victory happened fair and square, yet 126 members of the House joined a brief urging the Supreme Court to ignore the results of the November 2020 election and hand it to Trump by judicial fiat.

Perhaps happily for Trump, he will get his trial this round—and a real one (recall that last year, no witnesses were called or actual evidence presented, thanks to Republicans in the Senate). He will get it not in spite of the Constitution but because of it.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.