Along with his innocence, former President Donald Trump‘s legal defense to his Senate impeachment trial is focused on the belief that the upper chamber doesn’t actually have the power to take action against him. But, if the case goes forward as it’s expected to, he’s asking Senators to acquit him.
Under the Constitution, if a president is convicted in the Senate, they’re removed from office, which has no bearing on Trump since he’s already left the White House. However, Democrats still have a stake in the game because, without a conviction Trump is free to run for office again, raising concerns that he could challenge Biden, or another Democrat, in 2024.
Trump, by way of his attorneys, Bryan Castor and David Schoen, argued in a response to the impeachment article that the Senate can’t bar Trump from holding office in the future. Castor and Schoen argued that a president must be removed from office before the Senate disqualifies them from holding future office, which is an “impossible” task since Trump’s term has ended.
Trump’s attorneys called for the impeachment article to be dismissed as unconstitutional because the Senate “lacks jurisdiction to remove from office a man who does not hold office.”
“In the alternative, the 45th President respectfully requests the Senate acquit him on the merits of the allegations raised in the article of impeachment,” the response said.
Senate Majority Leader Chuck Schumer repeatedly dismissed the idea that the Senate couldn’t pursue a trial against Trump because of the Constitution. He called it a “fringe legal theory” that the Senate couldn’t hold the trial and said it makes no sense that a public official could commit a “heinous” crime against the country and resign to avoid “accountability and a vote to disqualify them from holding future office.”
Trump was impeached while he was president but his trial in the Senate is set to begin next week, nearly four weeks after President Joe Biden was inaugurated. The Constitution is clear about the process for impeaching a current president, but Trump being a former president at the time of a trial raised questions about the proceedings.
Trump’s attorneys criticized the move to let Senator Patrick Leahy, a Democrat from Virginia, take over as the Senate judge. In accordance with the Constitution, that duty falls on the Supreme Court chief justice when it involves a president. But Leahy was given the task as Trump is no longer president.
Leahy voted in favor of convicting Trump in 2020 and Castor and Schoen argued the House of Representatives “maneuvered an ally in the Senate into the judge’s chair.”
Along with dismissing the Senate trial as running contrary to the Constitution, Trump’s attorneys denied Trump committed the crimes he’s been accused of, including inciting violence at the Capitol with false claims about election integrity.
“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,” the response said.
His comments, they said, were protected under the First Amendment. If the Senate votes to convict him, the precedent would be that Trump no longer has the “protections of liberty upon which this great nation was founded,” according to his attorneys.
“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,” the response said.
Although 10 GOP representatives joined Democrats in voting to impeach Trump, it’s unlikely the president will be convicted in the Senate. Forty-five Republican senators voted to dismiss his impeachment trial before it started. The dismissal failed because the majority of the Senate voted to move forward with a trial, but if 45 senators didn’t even want the trial to take place, it’ll be an uphill battle for Democrats to convince 17 to convict Trump and reach the 67-vote threshold needed for a two-thirds majority vote.