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The impeachment of Donald Trump is unconstitutional as he is no longer 'president' and should be dismissed, his lawyers said in an initial response ahead of his Senate trial.
On Tuesday, Democratic House of Representative impeachment managers shared an 80-page trial brief laying out their case for convicting former president Trump and barring him from ever holding federal office again.
The arguments came one week before Trump's unprecedented second impeachment trial is set to begin in the Senate. Trump was impeached in the House last month on one article of inciting an insurrection on January 6.
The brief lays out the case for the conviction of Trump for “incitement of insurrection against the Republic he swore to protect”.
It also describes the Senate's obligation to hear this case, affirming that “the Constitution governs the first day of the president's term, the last day, and every moment in between”.
In response, Trump's lawyers said that the impeachment trial is unconstitutional.
The provisions do not apply to Trump, "since he is no longer 'President,'" his lawyers say.
"The constitutional provision requires that a person actually hold office to be impeached. Since the 45th President is no longer 'President,' the clause 'shall be removed from Office on Impeachment for’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution."
Trump, 74, is the first US president ever to have been impeached twice.
Democrats, who hold 50 seats in the 100-member Senate, will have to persuade at least 17 Republicans to vote with them in order to convict Trump.
“Donald John Trump, 45th President of the United States respectfully requests the Honourable Members of the Senate of the United States dismiss Article I: Incitement of Insurrection against him as moot, and thus in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office,” Trump's lawyers wrote.
“In the alternative, the 45th president respectfully requests the Senate acquit him on the merits of the allegations raised in the article of impeachment,” it said.
In the brief, the House Impeachment Managers alleged 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. As it stormed the Capitol, the mob yelled out ‘President Trump Sent Us,' ‘Hang Mike Pence,' and ‘Traitor Traitor Traitor.'
On January 6, as the US Congress assembled to certify President-elect Biden's victory, a mob of Trump supporters stormed the US Capitol in a bid to overturn the November 3 election results.
Trump supporters armed with weapons attempted to disrupt the electoral college vote count and clashed with security personnel at the Capitol building.
“Trump committed this high crime and misdemeanour amid his final days in office. Given the clarity of the evidence and the egregiousness of his wrongdoing, the House approved an article of impeachment for incitement of insurrection. Now, merely weeks later, President Trump will argue that it serves no purpose to subject him to a trial and that the Senate lacks jurisdiction to do so,” the House managers wrote.
“The Constitution governs the first day of the president's term, the last day, and every moment in between. Presidents do not get a free pass to commit high crimes and misdemeanours near the end of their term. The Framers of our Constitution feared more than anything a President who would abuse power to remain in office against the will of the electorate. Allowing Presidents to subvert elections without consequence would encourage the most dangerous of abuses,” they said.
In response, Trump's lawyers argued that the former president did not incite riots. “The Article of Impeachment violates the 45th President's right to free speech and thought guaranteed under the First Amendment to the United States Constitution,” his lawyers wrote.
“It is denied that the 45th President engaged in insurrection or rebellion against the United States. The 45th President believes and therefore avers that as a private citizen, the Senate has no jurisdiction over his ability to hold office and for the Senate to take action on this averment would constitute a Bill of Attainder in violation of Art. I, Sec. 9. Cl. 3 of the United States Constitution,” it said.
Senate Majority Leader, Chuck Schumer, told reporters that Trump should be tried. “I hope he will vote to be convicted. Anything past that is something we can discuss, but he deserves conviction, nothing less,” he said.
“We're going into an impeachment trial next week. We're all going to listen to what the lawyers have to say and make the arguments and work our way through,” Senate Minority Leader Mitch McConnell told reporters at a separate news conference.
Trump was first impeached by the House in 2019 -- over allegations of improperly seeking help from Ukraine to boost his chances of re-election. He was accused of seeking damaging information from a foreign country about his political rival Biden. However, he was cleared by a majority of senators at his trial.