Trump’s Lawyers Say He Can’t Be Impeached for Trying to Subvert the Election Because He Was Just Expressing an Opinion – By Jacob Sullum (Reason) / Feb 2 2021
They also argue that the Senate has no authority to try a former president.
Responding to Donald Trump’s impeachment in a 14-page brief filed today, his lawyers argue that he cannot be tried by the Senate because he is no longer president and that his promotion of the baseless claim that Joe Biden stole the presidential election, which inspired hundreds of his followers to launch a deadly attack on the Capitol last month, was protected by the First Amendment. And by the way, they say, there is “insufficient evidence” to conclusively determine that Trump’s wild claims of massive election fraud were false.
The House managers charged with prosecuting Trump in the Senate preemptively rebut those arguments in an 80-page trial memorandum that was also filed today. Their case is much more thorough and, on the whole, persuasive.
Trump’s argument that the Senate is not authorized to try him focuses on the constitutional text, which says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
