Thomas Gallatin / February 8, 2021

Trump Legal Team to Expose Dubious ‘Incitement’ Charge

Defense lawyers also aim to show that the Senate cannot possibly impeach a former president.

On the eve of the Senate’s second impeachment trial of former President Donald Trump, here’s a look at his legal team’s defense.

The first and most important point Trump’s lawyers are expected to argue is the unprecedented and unconstitutional nature of the Democrats’ impeachment gambit. Trump’s legal team asserts, “The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed, and the Constitution limits the authority of the Senate in cases of impeachment to removal from office as the prerequisite active remedy allowed the Senate under our Constitution.” Call it the “By what authority?” defense.

Responding to the Democrats’ claims that the Senate still has constitutional authority to try a non-sitting president, Trump’s defense points to Article I, Section 3 of the Constitution. It states, “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor.”

The Democrats’ primary charge is that Trump is guilty of “incitement of insurrection” against the United States for his remarks ahead of the Capitol riot and for the two post-election months in which he refused to concede defeat while contending the existence of massive voter fraud. They claim that means he should therefore be forbidden from “hold[ing] any office … under the United States” according the the 14th Amendment. Trump’s legal team denies that the president is guilty of any such charge.

Pointing both to Trump’s actual rhetoric and his First Amendment right to express his views regarding the outcome of the 2020 election, the defense states, “Like all Americans, the 45th President is protected by the First Amendment. Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation. If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”

The Democrats’ “incitement of insurrection” charge is yet another classic example of stretching definitions beyond their clear, original, and legal meanings to suit the Left’s own politically expedient purposes. As “evidence” to support their “incitement” charge against Trump, the Democrats note his statement at the January 6 rally: “If you don’t fight like hell you’re not going to have a country anymore.” Of course, the Democrats conveniently ignore the fact that Trump also said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.”

Regarding the dubious “incitement” charge, Mollie Hemingway cogently recalls Senator Chuck Schumer (D-NY) just last year speaking to a mob of protesters outside the Supreme Court building and saying, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” She notes that just 17 months prior at Justice Kavanaugh’s swearing ceremony, “hordes of protesters broke through a police barricade and attempted to beat down the 13-ton bronze doors of the court.” Moreover, “Justices Ruth Bader Ginsburg and Elena Kagan, who attended Kavanaugh’s immediate swearing in, were hit with water bottles and tomatoes when their car left the court afterward. Some 164 people were arrested in that protest.”

In fact, Schumer is just the tip of the iceberg when it comes to Democrat hypocrisy on “violent” political rhetoric, and Trump’s legal team as well as Senate Republicans plan to hammer this point hard. Senator Rand Paul (KY) said on Sunday, “I think if we are going to criminalize speech and somehow impeach everybody who says, ‘Oh, go fight to hear your voices heard,’ really we ought to impeach Chuck Schumer then.” Pointing to other Democrats, Paul continued, “If people want to hold President Trump accountable for language, there has to be a consistent standard, and to my mind it’s a partisan farce because they’re not doing anything to Chuck Schumer, not doing anything to [Ilhan] Omar, not doing anything to Maxine Waters.”

This week’s trial, of course, will prove to be little other than political theater, as there is little legal or constitutional support for the Democrats’ vindictive actions. But, for them, the theater is the point.

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