Trump’s team argues Senate cannot convict because he is out of office, comments were protected speech

President Donald Trump
Posted at 2:39 PM, Feb 02, 2021

The legal team for former President Donald Trump says he cannot be convicted on the article of impeachment he is facing because he is no longer in office, according to a 14-page formal response filed Tuesday.

It’s the first response to the accusations from Trump’s new legal team, lawyers Bruce Castor and David Schoen.

In the pre-trial brief, Castor and Schoen argue the Senate, which is set to begin hearing the case next week, cannot vote to impeach Trump because he no longer holds office.

"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," Trump's legal team wrote.

The House impeachment managers, in their pre-trial brief, say there is history and precedent to justify holding a trial and convict Trump. They point out that the article of impeachment was voted on while he was still in office, for actions taken while he was in office.

"There is no 'January Exception' to impeachment or any other provision of the Constitution," the managers wrote in their formal 80-page brief. "A president must answer comprehensively for his conduct in office from his first day in office through his last."

Trump’s lawyers also argue the former president’s comments about the election and during a speech ahead of the Jan. 6 riot at the U.S. Capitol is protected by the First Amendment.

"After the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,” Castor and Schoen wrote.

In response to this argument, the House impeachment managers say Trump’s comments leading up to and the day of the riot “created a powder keg” and that “hundreds were prepared for violence at his direction, they were prepared to do whatever it took to keep him in power.”

The House impeachment managers also cite some of the rioters themselves who claim Trump was the reason they attacked the Capitol building.

The House of Representatives voted to impeach former President Trump on one article, “incitement of insurrection, on Jan. 13. Just seven days before he left office.

The process now moves to the Senate, where senators will act as jurors, hearing arguments from the House impeachment managers and Trump’s legal team, before voting whether or not to convict.

The Senate trial is scheduled to begin February 9.