Read Trump’s full response to House Democrats’ arguments for impeachment

Attorneys for Donald Trump said Tuesday the House’s impeachment of the former president “is facially and substantively flawed, and otherwise unconstitutional.”

In a response to House Democrats’ brief claiming Trump was responsible for the riots, attorneys Bruce Castor and David Schoen called for either the single article of impeachment against Trump to be dismissed “with prejudice,” meaning the case cannot be brought again, or for the Senate to acquit him.

Portions of the U.S. Constitution dealing with impeachment require “that a person actually hold office to be impeached,” they write in one of their answers to Democrats’ arguments. While Article II, as the attorneys reference, says the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” Article I also states that a judgment in an impeachment case “shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit” and other penalties under law.

A Congressional Research Service report published last month noted that while the Constitution does not directly answer the question of whether Congress can impeach and try a former president for their conduct in office, “it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.”

The House voted a week after the Jan. 6 attack on the Capitol to impeach then-President Trump for an unprecedented second time. In the 232-197 vote on Jan. 13, ten Republicans joined all of their Democratic colleagues to impeach Trump for incitement of insurrection, which came as then-Vice President Mike Pence sat in session to confirm the Electoral College vote that secured current President Joe Biden’s win in the 2020 presidential election.

In their response, Trump’s attorneys denied claims that the former president “incited the crowd to engage in destructive behavior” outside the White House as Congress convened to count the Electoral College votes. “It is denied that the phrase ‘if you don’t fight like hell, you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech. It is denied that President Trump intended to interfere with the counting of Electoral votes,” they wrote.

Castor, a former acting attorney general of Pennsylvania and district attorney who now works in private practice, and Schoen, an attorney in private practice, also denied that the former president endangered national security, Congress or the national tradition of a peaceful transition of power. “It is denied he betrayed his trust as president, to the manifest injury of the people of the United States,” they wrote. “Rather, the 45th president of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people.”

Five people died in the Jan. 6 riots, including U.S. Capitol Police Officer Brian Sicknick.

The Senate acquitted Trump in his first impeachment early last year. His second impeachment trial gets underway on Feb. 9. Read the full response from the former president’s lawyers.

The response at the link above is 14 pages long. Some highlights:

1. The Constitution provides that the House of Representatives ‘shall have the sole Power of Impeachment’ and that the President ‘shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.’”

It is denied that the quoted provision currently applies to the 45th President of the United States since he is no longer “President.” 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. Article I, Section 3 of the Constitution states “[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor…” (emphasis added). Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, “disqualification” to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.
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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. The 45th President asks the Senate to dismiss Averment 2 relating to the 14th Amendment as moot.
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It is denied that the 45th President of the United States ever engaged in a violation of his oath of office. To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors.
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It is denied that President Trump ever endangered the security of the United States and its institutions of Government. It is denied he threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government. It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people. The 45th President believes and therefore avers that in the United States, the people choose their President, and that he was properly chosen in 2016 and sworn into office in 2017, serving his term to the best of his ability in comportment with his oath of office.
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Note that there is no mention whatsoever about the election being stolen. So much for the rumors that Trump fired his previous lawyers because they refused to argue that the election was stolen.

Here is a good video reading of the charges and Trump's responses. Don't let the title throw you, it is a pro-Trump response, it just complains that there is no "passion" in the President's response, but rather it is just dry legal boilerplate:

Trump's LACKLUSTRE Impeachment Response - Lawyer Explains - Viva Frei Vlawg

I believe that you are correct. You cant disqualify a president by Senate trial one he is out of office.

I looked at statues that defined punishments for violation of federal and Nebraska law. The read like this (from Nebraska Type IIIA felony)

“Maximum—three years imprisonment
orten thousand dollars fine, or both.”

Its A, or B, or both.

But for impeachment, as you point out, it’s A and B.

If the Constitution had been intended to mean A or B or both, it would have been written like our Federal and State Statures are written.

If you thinks he’s committed a crime, you need to charge him with a criminal offense, and give him a jury trial with a jury of his peers, and all other procedural rights.

Why the impeachment fails

The words prior to noon Jan 6 were heard and well known to everybody and anybody in the world. Trump blared, screamed, whatever, that he wanted his supporters to come to Washington on January 6th. Everybody knew they were coming.

It is interesting that the law enforcement officials including the FBI, CIA, DHS, Washington DC Police, and the Capitol Hill Police (including their board), had access to the best intel, yet every single one of them including Mr Irvine who reported to Pelosi, concluded, despite this intel, there was no imminent threat of such consequential nature as to warrant reinforcements. Think about that. Regardless of what Trump said, nobody thought it important enough that reinforcements should be deployed. These are the best of the best in law enforcement yet they saw no credible threat.

That point alone is critical to understand. By saying Trump incited his followers to such magnitude as to cause them to storm the capitol is an affront to the very fine citizens of the United States who work in law enforcement. Again, despite having the best intel in the world, not one single law enforcement agency thought Trump's own words, who they and his supporters both heard, were such a threat that it should immediately warrant backups and reinforcement.

Yet the footage of Jan 5th shows an individual on the streets at night saying we need to take the capitol, and a group of Trump supporters shouting out Fed! Fed! as if to say the person is a plant. This same individual is filmed on January 6th storming the gate where they overpower the capitol hill police. By many estimates the capitol hill police were overwhelmed within 15 minutes. Clearly this was planned in advance.

This was a pre-planned even by a group of extremists who were intent on causing harm as noted the night before in the "take the capitol" dialogue. It had nothing to do with the words from Trump.

The point is simple, Congressional approval rating has hovered between 15 and 25%. People do not look favorably on congress. Trump's words prior to Jan 6th were of no significant concern to the best law enforcement groups in the world, yet you pretend Trumps words were so damning as to incite an insurrection that our LEOs did not see coming?

To say that his words that day caused the event is contradictory to the facts presented. Even the video footage from the night of Jan 5 shows certain individuals saying storm the capitol and the same unmistakable person is there leading and coordinating the attack prior to Trump concluding his speech, prior to him saying march to the capitol.

On one side of the capitol there were police officers escorting the protestors into the capitol. On the other side there were officers fighting to defend the capitol. There is even a video clearly showing the individual wearing the viking horns being escorted into the chamber by what appears to be a tour guide.

So the argument is simple. Trumps words were made to the public and analyzed by law enforcement who found no credible threat as to warrant backup and reinforcements. His supporters where more than 1 mile away at his speech which concluded approximately 1pm and who could not reach the capitol prior to 1:20 at the earliest. The capitol guards where overtaken at the external barrier at approximately 12:50, lead in part by a person who was filmed the night before saying "take the capitol".

For the record, I am a conservative. I am not a fan of Trump and never have been. I have that right just as much as he has the right to free speech.

I acknowledge and understand that a number of democrats had their feelings hurt that day. It is understandable.

I understand one person was reported shot and killed that day. I understand 3 people committed suicide after that day, one person died an injury he sustained that day, and one person died from underlying health conditions.

My genuine concern is that 70M people have a significant difference of opinion then the current democratic leadership. That is not an insignificant number.

If leadership truly wants to lead than I suggest they strongly consider the following three points:
1. Do not be so smug as to assume 70M is inconsequential
2. Acknowledge the concern over mail-in ballots and work to address it in a meaningful way instead of discounting as irrelevant... 70M people say it is not
3. Do not attempt to restructure the electoral college. It is there for a reason and has, despite what some think, served us well over the years. Yes it is imperfect but do not think that rural America is insignificant... they are not.

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