IN PROCEEDINGS BEFORE

THE UNITED STATES SENATE

____________________________________
:
In re: :
:
IMPEACHMENT OF :
FORMER PRESIDENT :
DONALD J. TRUMP :
____________________________________:

TRIAL MEMORANDUM
OF DONALD J. TRUMP, 45TH PRESIDENT OF THE UNITED STATES OF AMERICA

Bruce L. Castor, Jr., Esquire

David Schoen, Esquire
Michael T. van der Veen, Esquire
Counsel to the 45th President of the United States

February 8, 2021
 TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................... 1

II. STATEMENT OF FACTS RELEVANT TO THE ARTICLE OF IMPEACHMENT .......... 2

A. The Single Article Of Impeachment Is Belied By An Analysis Of Mr. Trump’s Spoken

Words To A Crowd Gathered At The Ellipse Four On January 6, 2021. .................................. 4

B. Democrat Members Of The House Drafted The Article Of Impeachment Before Any

Investigation Into The Riot Had Even Started. .......................................................................... 6

C. The House Managers’ “Statement Of Facts” Outlines A Narrative Irrelevant To The Facts

Alleged In Support Of The Single Article Of Impeachment. .................................................... 7

1. Law Enforcement Had Reports Of A Potential Attack On The Capitol Several Days

Before President Trump’s Speech. ....................................................................................... 7

2. The House Managers False Narrative Rests Entirely On Biased And Mischaracterized

Reports By The Media And Cherry-Picked, Non-Contextual Parsing Of Mr. Trump’s

January 6 Speech................................................................................................................. 10

III. ARGUMENT......................................................................................................................... 13

A. The Senate Lacks The Constitutional Jurisdiction To Conduct An Impeachment Trial Of

A Former President. ................................................................................................................. 13

1. The Text And Structure Of The Articles Discussing Impeachment Do Not Grant To

the Senate the Authority Over A Former President. ........................................................... 14

2. The Constitution only gives the Senate Jurisdiction over the President, not the former

President, of the United States. ........................................................................................... 17

i
 3. The Founders Knowingly Did Not Extend The Power Of Impeachment To Former

Officials............................................................................................................................... 20

4. Historical Precedents .................................................................................................. 23

B. Congress’ Power To Impose Penalties Upon Conviction Of Impeachment Is Limited to

Removal, And (Not Or) Disqualification................................................................................. 30

C. The Article of Impeachment Violates Mr. Trump’s First Amendment Rights .............. 37

1. The Senate Cannot Disregard the First Amendment and the Supreme Court’s Long-

Established Free Speech Jurisprudence .............................................................................. 38

2. Mr. Trump as an Elected Official Has First Amendment Rights to Freely Engage in

Political Speech ................................................................................................................... 41

3. Mr. Trump’s Speech Was Fully Protected by the First Amendment ......................... 47

4. Lastly, Mr. Trump’s Figurative Use of the Words “Fight,” “Fighting,” Have Been Used

By Many, None Are Impeachable ...................................................................................... 63

D. The House Afforded President Trump No Due Process of Law .................................... 66

E. The Article Is Structurally Deficient and Can Only Result in Acquittal. ...................... 71

F. The Article Fails to State an Impeachable Offense as a Matter of Law. ........................ 72

IV. CONCLUSION ..................................................................................................................... 74

ii
I. INTRODUCTION
During the past four years, Democrat members of the United States House of

Representatives have filed at least nine (9) resolutions to impeach Donald J. Trump, the 45th

President of the United States,1 each containing charges more outlandish than the next.2 One might

have been excused for thinking that the Democrats’ fevered hatred for Citizen Trump and their

“Trump Derangement Syndrome” would have broken by now, seeing as he is no longer the

President, and yet for the second time in just over a year the United States Senate is preparing to

sit as a Court of Impeachment, but this time over a private citizen who is a former President.3 In

this Country, the Constitution – not a political party and not politicians – reigns supreme. But

through this latest Article of Impeachment now before the Senate, Democrat politicians seek to

carve out a mechanism by which they can silence a political opponent and a minority party. The

Senate must summarily reject this brazen political act

This rushed, single article of impeachment ignores the very Constitution from which its

power comes and is itself defectively drafted.. In bringing this impeachment at all, the Members

of the House leadership have debased the grave power of impeachment and disdained the solemn

1
Andrew Kaczynski, Christopher Massie, A running list of Democrats who have discussed
impeachment, CNN (Mar. 12, 2017),
https://www.cnn.com/2017/05/12/politics/kfile-democrats-impeach-trump/index.html
2
Some of the allegations that they thought were grounds for impeachment: national security
decisions that were upheld by the Supreme Court, see Trump v. Hawaii, 138 S. Ct. 2392 (2018); publishing
disparaging tweets about Democratic House members in response to their own attacks on the President,
H.R. Res. 498, 116th Cong. (2019); and failing to nominate persons to fill vacancies and insulting the press,
H.R. Res. 396, 116th Cong. (2019).
3
The charge itself is not even original: One of the articles of impeachment introduced by
Representative Al Green back in December 2017 accused President Trump of “inciting hate and hostility”
by “sowing discord among the people of the United States.” Impeaching Donald John Trump, President of
the United States, of High Misdemeanors, H.R. 646, 115th Cong. § 1 (2017).

1
responsibility that this awesome power entails. In bringing this impeachment in the manner in

which they did, namely via a process that violated every precedent and every principle of fairness

followed in impeachment inquiries for more than 150 years, they offered the public a master’s

class in the art of political opportunism.

The intellectual dishonesty and factual vacuity put forth by the House Managers in their

trial memorandum only serve to further punctuate the point that this impeachment proceeding was

never about seeking justice.4 Instead, this was only ever a selfish attempt by Democratic leadership

in the House to prey upon the feelings of horror and confusion that fell upon all Americans across

the entire political spectrum upon seeing the destruction at the Capitol on January 6 by a few

hundred people. Instead of acting to heal the nation, or at the very least focusing on prosecuting

the lawbreakers who stormed the Capitol, the Speaker of the House and her allies have tried to

callously harness the chaos of the moment for their own political gain.

II. STATEMENT OF FACTS RELEVANT TO THE ARTICLE OF IMPEACHMENT

On January 6, 2021, rioters entered the Capitol building and wrought unprecedented havoc,

mayhem, and death. In a brazen attempt to further glorify violence, the House Managers took

several pages of their Memorandum to restate over 50 sensationalized media reports detailing the

horrific incidents and shocking violence of those hours. Counsel for the 45th President hereby

stipulate that what happened at the Capitol by those criminals was horrible and horrific in every

sense of those words. Their actions were utterly inexcusable and deserve robust and swift

investigation and prosecution. As President Trump said in a video statement of condemnation, “I

want to be very clear, I unequivocally condemn the violence that we saw last week. Violence and

4
Hugh Hewitt, A fast-track impeachment would not be justice, Washington Post (Jun. 8, 2021),
https://www.washingtonpost.com/opinions/2021/01/08/fast-track-trump-impeachment-pointless-revenge/

2
vandalism have absolutely no place in our country and no place in our movement.”5 Mr. Trump’s

comments echoed his sentiments expressed the day of the rally, as he repeatedly urged protesters

to stay peaceful,6 and told rioters to go home.7 8

The House Managers’ compulsion to obfuscate the truth is borne out of an absence of

evidence relied upon in their “Statement of Facts.” As the body vested with the sole power to

impeach, the House serves as the investigator and prosecutor. There was no investigation. The

House abdicated that responsibility to the media. Of the 170 footnotes in the House Manager’s

Trial Memorandum, there were only three citations to affidavits of four law enforcement officers

and they were merely referenced to support descriptions of what rioters were wearing and weapons

that were found. The rest of the purported “facts” relied upon by these Constitutionally-charged

prosecutors came from hearsay through the media.

5
Reuters, Trump condemns Capitol Hill violence, Reuters (Jan. 13,
2021).https://www.reuters.com/article/us-usa-trump-remarks/trump-condemns-capitol-hill-violence-in-
video-that-does-not-mention-impeachment-idUSKBN29I37G

6
Rev.com, Donald Trump Speech “Save America” Rally Transcript January 6, Jan. 6, 2021,
beginning at approximately 18:16 (emphasis added), available at
https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-
january-6. (“Transcript of January 6, 2021 Speech”).
7
Kevin Breuninger, Trump tells Capitol rioters to ‘go home’ but repeatedly pushes false claim that
election was stolen, CNBC (Jan. 6, 2021),
https://www.cnbc.com/2021/01/06/trump-tells-capitol-rioters-to-go-home-now-but-still-calls-the-election-
stolen.html
8
The House Managers’ suggestion that President Trump did not act swiftly enough to quell the
violence is absolutely not true. Upon hearing of the reports of violence, he tweeted, pleading with the
crowd to be “peaceful,” followed by a tweeted video urging people to “go home” and to do so in “peace.”
He and the White House further took immediate steps to coordinate with authorities to provide whatever
was necessary to counteract the rioters. The fact is there are complex procedural elements involved in
quelling a riot at the Capitol and on the mall – DC police, Capitol Police, National Guard, etc., There was
a flurry of activity inside the White House working to mobilize assets. There is no legitimate proof, nor can
there ever be, that President Trump was “delighted” by the events at the Capitol. He, like the rest of the
Country, was horrified at the violence.
3
 A. The Single Article Of Impeachment Is Belied By An Analysis Of Mr. Trump’s
Spoken Words To A Crowd Gathered At The Ellipse Four On January 6, 2021.

At the demand of the Speaker of the House, certain members of the House drafted and

introduced Resolution 24 impeaching Mr. Trump, in his capacity as President of the United States.

The single Article titled “Incitement of Insurrection” charged Mr. Trump with engaging in “high

Crimes and Misdemeanors by inciting violence against the Government of the United States.”

Incitement is the act of encouraging someone to do or feel something unpleasant or violent. 9 An

insurrection – unlike a riot – is an organized movement acting for the express purpose to overthrow

and take possession of a government’s powers.10 President’s Trump speech on January 6, 2021

was not an act encouraging an organized movement to overthrow the Unites States government.

On January 6, 2021, Mr. Trump addressed a crowd of people who had gathered on the

Ellipse, public land that is part of the President’s Park next to the White House. Mr. Trump spoke

for approximately one hour and fifteen minutes. Of the over 10,000 words spoken, Mr. Trump

used the word “fight” a little more than a handful of times and each time in the figurative sense

that has long been accepted in public discourse when urging people to stand and use their voices

to be heard on matters important to them; it was not and could not be construed to encourage acts

of violence Notably absent from his speech was any reference to or encouragement of an

insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only

reference to force was in taking pride in his administration’s creation of the Space Force. Mr.

Trump never made any express or implied mention of weapons, the need for weapons, or anything

9
https://dictionary.cambridge.org/us/dictionary/english/incitement
10
Younis Bros. & Co. v. Cigna Worldwide Ins. Co., 899 F. Supp. 1385, 1392-1393 (E.D. Pa. 1995)
(citing Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989, 1017 (2d Cir.
1974) Holiday Inns, Inc. v. Aetna Ins. Co., 571 F. Supp. 1460, 1487 (S.D.N.Y. 1983); and Home Ins. Co.
of New York v. Davila, 212 F.2d 731, 736 (1st Cir.1954)).

4
of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their

voices.

Mr. Trump greeting the crowd by remarking on the honor he felt looking out at the many

“American patriots who are committed to the honesty of our elections and integrity of our glorious

Republic.” He went on to thank the crowd for their “extraordinary love” noting “that’s what it is.

There’s never been a movement like this ever, ever for the extraordinary love for this amazing

country and this amazing movement. Thank you.” Mr. Trump told those gathered that “we’re

gathering in the heart of our Nation’s Capital for one very, very basic and simple reason, to save

our democracy.”

Nearly twenty minutes into his speech, Mr. Trump said “I know that everyone here will

soon be marching over to the Capitol building to peacefully and patriotically make your voices

heard.” Mr. Trump then spent approximately thirty to forty (30 – 40) minutes recapping some of

his accomplishments as President and his beliefs on the outcome of the election, including the

voting irregularities he attributed to the changes made in various states purportedly in response to

the pandemic, and his conversation with Georgia’s secretary of state.

As Mr. Trump was winding down his speech, he again looked out at all those gathered

saying “looking out at all the amazing patriots here today, I have never been more confident in our

nation’s future.” Although expressing some caution, Mr. Trump added “we are the greatest

country on earth and we are headed, were headed, in the right direction.” With great hope, Mr.

Trump went on to state:

As this enormous crowd shows, we have truth and justice on

our side. We have a deep and enduring love for America in our
hearts. We love our country. We have overwhelming pride in this
great country, and we have it deep in our souls. Together we are
determined to defend and preserve government of the people, by the
people and for the people.

5
 Our brightest days are before us, our greatest achievements
still wait. I think one of our great achievements will be election
security because nobody until I came along, had any idea how
corrupt our elections were. And again, most people would stand
there at 9:00 in the evening and say, "I want to thank you very
much," and they go off to some other life, but I said, "Something's
wrong here. Something's really wrong. Can't have happened." And
we fight. We fight like Hell and if you don't fight like Hell, you're
not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet

begun. My fellow Americans for our movement, for our children
and for our beloved country and I say this, despite all that's
happened, the best is yet to come.

Mr. Trump concluded his speech at the Ellipse stating “[s]o let’s walk down Pennsylvania

Avenue. I want to thank you all. God bless you and God Bless America. Thank you all for being

here, this is incredible. Thank you very much. Thank you.” Despite the House Managers’ charges

against Mr. Trump, his statements cannot and could not reasonably be interpreted as a call to

immediate violence or a call for a violent overthrown of the United States’ government.

B. Democrat Members Of The House Drafted The Article Of Impeachment

Before Any Investigation Into The Riot Had Even Started.
Democrat members of the House Judiciary Committee publically admitted that they began

drafting the Article of Impeachment moments after angry extremists breached the doors of the

Capitol.11 The very next day, Speaker Nancy Pelosi and Senate Democratic Leader Chuck

Schumer called on Vice-President Pence to invoke the 25th Amendment concluding – without any

investigation – that Mr. Trump incited the insurrection and continued to pose an imminent danger

11
Jennifer Haberkorn, Sheltering in a Capitol Office: a California Lawmaker’s Frantic Text Got the
Impeachment Ball Rolling, L.A. Times (Jan. 13, 2021), https://www.latimes.com/politics/story/2021-01-
13/sheltering-in-a-capitol-office-a-california-lawmakers-frantic-text-got-the-impeachment-ball-rolling

6
if he remained in office as President.12 Five days later, on January 11, 2020, House Democrats

formally introduced House Resolution 24. On January 12th, Speaker Pelosi announced the nine

representatives who would serve as the impeachment managers. One day later, on January 13th,

House Democrats completed the fastest presidential impeachment inquiry in history and adopted

the Article of Impeachment over strong opposition and with zero due process afforded to Mr.

Trump, against Constitutional requirements and centuries of practice.13

C. The House Managers’ “Statement Of Facts” Outlines A Narrative Irrelevant

To The Facts Alleged In Support Of The Single Article Of Impeachment.

The House Managers spent nearly thirty-five (35) of their seventy-seven (77) page Trial

Memorandum rehashing stories written by the media of mischaracterized statements attributed to

Mr. Trump many months before Mr. Trump addressed the crowd at the Ellipse in Washington,

D.C. on January 6, 2021. Media reports and reporters’ opinions are not facts and most assuredly

are not facts that should form the basis for instituting the grave power of impeachment. More

significantly, however, Mr. Trump was never charged in the Article of Impeachment with the

claims made in these various reports.

1. Law Enforcement Had Reports Of A Potential Attack On The Capitol

Several Days Before President Trump’s Speech.
Despite going to great lengths to include irrelevant information regarding Mr. Trump’s

comments dating back to August 2020 and various postings on social media, the House Managers

are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the

12
Pelosi, Schumer Joint Statement on Call to Vice President Pence on Invoking 25th Amendment,
(Jan. 7, 2021), https://www.speaker.gov/newsroom/1721-0
13
H.Res.24 – Impeaching Donald John Trump, President of the United States, for high crimes and
misdemeanors, 117th Congress (2021-2022), https://www.congress.gov/bill/117th-congress/house-
resolution/24/actions

7
breach at the Capitol was planned several days in advance of the rally, and therefore had nothing

to do with the President’s speech on January 6th at the Ellipse. According to investigative reports

all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning

there was going to be an attack on the Capitol...”14 Embarrassingly enough, even members of the

Democratic leadership themselves have admitted on the record, albeit subsequent to January 6,

2021, that they believed the riots were pre-planned, with some, including Representative James C.

Clyburn, the House Democratic Whip, going so far as to accuse fellow House Members of

coordinating and planning the attack in advance as co-conspirators.15 The problem with that claim

of course is that while the House Managers are clearly eager to make the most of this tragedy for

their own purely personal political gain, House Leadership simply cannot have it both ways. Either

the President incited the riots, like the Article claims, or the riots were pre-planned by a small

group of criminals who deserve punishment to the fullest extent of the law. 33 Representatives

are only now calling for investigations into Members across the aisle.16

14
Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What
Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021),
https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c
ant_blame_trump_what_did_pelosi_mcconnell_know.html
15
Geoff Earle, Republican congressman’s top aid admits to being with mob, Daily Mail (Jan. 14,
2021),https://www.dailymail.co.uk/news/article-9147863/Democratic-whip-Jim-Clyburn-says-
Democrats-convinced-MAGA-rioters-inside-help.html
16
Siladitya Ray, Lawmakers Led “Reconnaissance’ Tours of the Capitol, Forbes (Jan. 13, 2021),
https://www.forbes.com/sites/siladityaray/2021/01/13/lawmakers-led-reconnaissance-tours-of-the-capitol-
ahead-of-last-weeks-riots-democratic-congresswoman-alleges/?sh=32ec8fe81c7e

8
 The real truth is that the people who criminally breached the Capitol did so of their own

accord17 and for their own reasons, and they are being criminally prosecuted.18 While never willing

to allow a “good crisis” to go to waste, the Democratic leadership is incapable of understanding

that not everything can always be blamed on their political adversaries, no matter how very badly

they may wish to exploit any moment of uncertainty on the part of the American people.19 Even a

cursory investigation would have disproved the House’s theory of incitement; however, Speaker

Pelosi did not grant the President any of his Constitutionally mandated due process rights.

A simple timeline of events demonstrates conclusively that the riots were not inspired by

the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is

near the White House. This is approximately a 30-33 minute walk. Trump began addressing the

crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had

17
Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi”
Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021),
https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boasted-
organizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of
Representatives and Senate is “to revel in the breach of security while mocking the defenses that
protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who
Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021),
https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later
retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN,
told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics
at all. It was an experience for me and that’s really the only reason I was there.”)
18
See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting
is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021),
https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.
19
Over the last four years Donald J. Trump has been blamed for every manner of evil thing, and every
crisis or news cycle that left people unsure of what to do was another opportunity to point a finger at the
President. For one example, when a celebrity claimed that he was the victim of a violent hate crime, Donald
Trump was blamed; and when it turned out that the claim was fraudulent the then-Mayor of Chicago quickly
pivoted and still blamed President Trump for creating a ‘toxic environment.’ Howie Carr, Trump is blamed
for everything, Boston Herald (Mar. 30, 2019), https://www.bostonherald.com/2019/03/30/fault-line-
trump-is-blamed-for-everything/.

9
already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s

speech.”20

2. The House Managers False Narrative Rests Entirely On Biased And

Mischaracterized Reports By The Media And Cherry-Picked, Non-
Contextual Parsing Of Mr. Trump’s January 6 Speech.
Contrary to the false narrative set forth by the House Managers, Mr. Trump’s speech was

never directed to inciting or producing any imminent lawless action. It is important to read the

speech in its entirety, because the House Managers played shamefully fast and loose with the truth

as they cherry-picked its content along with content from other speeches made to other audiences

for their Trial Memorandum, desperately searching for incitement and desperate to deflect

attention away from the glaring inability to show an insurrection. And this is no small matter,

because their demonstrably false claims go right to the heart of their main allegation.

Democrats cannot pretend that they were confused by the word ‘fight’ in the context

President Trump used it in his speech; Speaker Pelosi has used this word multiple times herself in

the context of election security,21 and the well-known nonprofit started by rising Democratic

darling Stacey Abrams and endorsed by none other than Speaker Pelosi22 is literally called ‘Fair

Fight,’ and it asks people to join the “fight for free and fair elections.” And yet in her comments

during the impeachment debate Speaker Pelosi adjusted the truth by conflating the parts of the

20
Tayler Hansen, Independent Journalist Tayler Hansen: A Riot that Turned Deadly, What I
Witnessed, Gateway Pundit (Jan. 28, 2021), https://www.thegatewaypundit.com/2021/01/exclusive-
independent-journalist-tayler-hansen-riot-turned-deadly-witnessed-us-capitol-riot/
21
Press Release, Pelosi Remarks at Election Security Week of Action Press Conference, Speaker.gov
(Jul. 9, 2019), https://www.speaker.gov/newsroom/7819-2.
22
Press Release, Pelosi, Schumer Announce Stacey Abrams To Deliver Democratic Response to
President Trump’s State of the Union, Speaker.gov (Jan. 29, 2019),
https://www.speaker.gov/newsroom/12919-3.

10
President’s speech in which he talked about marching peacefully to the Capitol and the part of the

speech addressing the need to fight for election security. She lied to the American people saying:

“They were sent here, sent here by the president, with words such as a cry to fight like hell.”

Incredibly enough, her very next words were “Words matter. Truth matters. Accountability

matters.”

Words do matter and the words of President Trump’s January 6th speech speak for

themselves. President Trump did not direct anyone to commit lawless actions, and the claim that

he could be responsible if a small group of criminals (who had come to the capital of their own

accord armed and ready for a fight) completely misunderstood him, were so enamored with him

and inspired by his words that they left his speech early, and then walked a mile and a half away

to “imminently” do the opposite of what he had just asked for, is simply absurd. The attack on the

Capitol was horrific. Period. But as constitutional professors23 and experienced practitioners24

agree, “The president didn’t mention violence on Wednesday, much less provoke or incite it.25

The fact that the House Managers found sheer deceptiveness necessary in the exercise of

selectively parsing the words of the former President and quoting him out of context underscores

the utter weakness of the House Managers’ factual and legal claims. This tact is reminiscent of

23
Such as Andrew Koppelman, a Constitutional Law professor from Northwestern University, who
explained “It seems to me the Brandenburg standard requires intention,” and noted “It’s like the word fight.
It’s often used as a metaphor. ‘Senator X is a fighter. He will fight for you.” Mark Sherman, Zeke Miller,
Can Trump be charged with inciting a riot? Legal bar is high, Associated Press (Jan. 8, 2021),
https://apnews.com/article/can-donald-trump-be-charged-incite-riot-
3f27e4393e83d2967cf25bd18db5b268
24
Like Jefrey Scott Shapiro, a former District of Columbia assistant attorney general who has
experience successfully – and unsuccessfully – convicting protesters for incitement. Jeffrey Scott Shapiro,
No, Trump Isn’t Guilty of Incitement, Wall Street Journal (Jan. 10, 2021), https://www.wsj.com/articles/no-
trump-isnt-guilty-of-incitement-11610303966
25
Id.
11
Congressman Schiff’s manufacturing of a fake conversation between President Trump and

Ukrainian President Zelensky.26

Truth also matters very much. But Speaker Pelosi and her allies perverted the truth. The

day after the riot, sensing a political opportunity, House Leadership decided to forego focusing on

the business of the nation and unifying a bitterly divided country to once again endeavor to score

political points against Mr. Trump. First, in an attempt to usurp Constitutional power that is not in

any way hers, the Speaker demanded that Vice-President Michael Pence or the White House

Cabinet invoke the 25th Amendment, threatening to launch an impeachment proceeding if they

refused. Four days later, on January 11, 2021, an Article of Impeachment was introduced, which

charged President Trump with “incitement of insurrection” against the United States government

and “lawless action at the Capitol.” See H. Res. 24 (117th Congress (2021-2022). The Speaker

made good on her extortionate threat.

Accountability does matter, according to the House Managers, unless you are a Democrat.

While fixating on words and sentences taken out of context, the House Managers ignore the many

reckless statements made by their Democrat colleagues in the House and Senate. Merely by way

of example, one need only search media reports to be reminded of Speaker Pelosi’s 2018 hopeful

comment when disagreeing with a policy: “I just don’t even know why there aren’t uprisings all

over the country. Maybe there will be.”27 And just last summer, when sustained violent riots were

26
Morgan Chalfant, Trump demands Schiff resign, The Hill (Sept. 17, 2019),
https://thehill.com/homenews/administration/463344-trump-demands-schiff-resign.
27
Douglas Ernst, Nancy Pelosi wonders why there ‘aren’t uprisings’ across nation: ‘Maybe there
will be,’ Washington Times (Jan. 14, 2018), https://www.washingtontimes.com/news/2018/jun/14/nancy-
pelosi-wonders-why-there-arent-uprisings-acr/

12
decimating our cities and local businesses, Representative Ayana Pressley went on national TV

and said that “there needs to be unrest in the streets.”28

They also ignore the sheer hypocrisy of their House leader’s 4-plus year quest to remove

President Trump from office. After the Article was introduced, Speaker Pelosi again gave Vice-

President Pence an ultimatum: either he invokes the 25th Amendment within twenty-four hours or

the impeachment proceedings would proceed. Vice-President Pence responded in a letter to

Speaker Pelosi the following day stating that he would not allow her to usurp constitutional

authority that is not hers and extort him (and by extension the Nation) to invoke the 25th

Amendment because he believed to do so would not “be in the best interest of our Nation or

consistent with our Constitution.”29 Vice-President Pence also noted that Speaker Pelosi was being

hypocritical, as she had previously stated that in utilizing the 25th Amendment, “we must be ‘[v]ery

respectful of not making a judgment on the basis of a comment or behavior that we don’t like, but

[rather must base such a decision] on a medical decision.”30

III. ARGUMENT
A. The Senate Lacks The Constitutional Jurisdiction To Conduct An
Impeachment Trial Of A Former President.

The Constitution of the United States bifurcates the power of impeachment and addresses

the issue in four places:

Article I, Section 2, Clause 5:

28
Am Joy, Post office cuts are wa against American people Pressley says, MSNBC (Aug. 15, 2020),
https://www.msnbc.com/am-joy/watch/post-office-cuts-are-war-against-american-people-pressley-says-
90125893871
29
See Mike Pence’s Letter to Nancy Pelosi https://www.cnn.com/2021/01/12/politics/pence-
letter/index.html.
30
Id.

13
 The House of Representatives shall choose their Speaker and other
Officers; and shall have the sole Power of Impeachment;31

Article I, Section 3, Clauses 6 and 7:

The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When
the President of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence
of two-thirds of the Members present. Judgment in Cases of
Impeachment shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor, Trust or
Profit under the United States; but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law;32

Article II, Section 2:

[The President] ... shall have power to grant reprieves and pardons
for offenses against the United States, except in cases of
impeachment;33 and

Article II, Section 4:

The President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.34

1. The Text And Structure Of The Articles Discussing Impeachment Do

Not Grant To the Senate the Authority Over A Former President.
As is evident from our Constitution’s plain text, Article II limits impeachment to current

officials: “The President, Vice President and all civil Officers of the United States, shall be

removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high

Crimes and Misdemeanors.” As Alexis de Tocqueville wrote, impeachment was designed to

31
U.S. Const, art.1, § 2, cl. 5.

32
U.S. Const. art. 1, §3, cl. 6 and 7.
33
U.S. Const. art 2, § 2.
34
U.S. Const. art 2, § 4.
14
deprive a political actor “of the authority he has used to amiss.”35 In this instance, however, the

Senate is being asked to do something patently ridiculous: try a private citizen in a process that is

designed to remove him from an office that he no longer holds.

(a) The Impeachment of a Former President, A Private Citizen,

Constitutes An Illegal Bill Of Attainder.
An impeachment trial of Mr. Trump held before the Senate would be nothing more nor less

than the trial of a private citizen by a legislative body. An impeachment trial by the Senate of a

private citizen violates Article I, Section 9 of the U.S. Constitution, which states that “[n]o bill of

attainder . . . shall be passed.”36

The Bill of Attainder, as this clause is known, prohibits Congress from enacting “a law that

legislatively determines guilt and inflicts punishment upon an identifiable individual without

provision of the protections of a judicial trial.”37 Simply put, “[a] bill of attainder is a legislative

act which inflicts punishment without a judicial trial.”38 “The distinguishing characteristic of a bill

of attainder is the substitution of legislative determination of guilt and legislative imposition of

punishment for judicial finding and sentence.”39

“[The Bill of Attainder Clause], and the separation of powers doctrine generally, reflect the

Framers’ concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of

35
Katherine Shaw, Impeachable Speech, 70 Emory L.J. 1, 10 (2020), citing to ALEXIS DE
TOCQUEVILLE, I DEMOCRACY IN AMERICA 101 (1838).
36
U.S. Const. art. I, § 9.
37
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977).
38
Cummings v. State of Missouri, 71 U.S. 277, 323 (1866).
39
United States v. Lovett, 328 U.S. 303, 321-22 (1946) (Frankfurter, J., and Reed, J., concurring).

15
power.”40 As the Supreme Court explained in United States v. Brown,41 “[t]he best available

evidence, the writings of the architects of our constitutional system, indicate that the Bill of

Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded)

prohibition, but rather as an implementation of the separation of powers, a general safeguard

against legislative exercise of the judicial function, or more simply—trial by legislature.”42 The

Bill of Attainder “reflected the Framers’ belief that the Legislative Branch is not so well suited as

politically independent judges and juries. . . “ 43

When the Senate undertakes an impeachment trial of a private citizen, it is acting as a judge

and jury rather than a legislative body. And this is exactly the type of situation that the Bill of

Attainder was meant to preclude. It is clear that disqualification from holding future office is a

kind of punishment that is subject to the constitutional inhibition against the passage of bills of

attainder, under which general designation bills of pains and penalties are included; in Cummings,

Ex parte Garland, and Brown, the Supreme Court thrice struck down provisions that precluded

support of the South or support of Communism from holding certain jobs as being in violation of

this prohibition.44 Thus the impeachment of a private citizen in order to disqualify them from

holding office is an unconstitutional act constituting a Bill of Attainder.

40
I.N.S. v. Chadha, 462 U.S. 919, 962 (1983) (Powell, J., concurring opinion).
41
United States v. Brown, 381 U.S. 437, 442 (1965).
42
381 U.S. 437, 442 (1965).
43
Id. at 445.
44
Cummings v. Missouri, 71 U.S. 277 (1867)(noting that “[t]he deprivation of any rights, civil or
political, previously enjoyed, may be punishment.”); Ex parte Garland, 71 U.S. 333 (1866)(explaining that
“exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be
regarded in no other light than as punishment for such conduct.”); see also Brown v. U.S., 381 U.S. 437,
458 (1965).

16
 Moreover, this is the exact type of situation in which the fear would be great that some

members of the Senate might be susceptible to acting in the haste the House did when it rushed

through the Article of Impeachment in less than 48 hours, i.e., acting hastily simply to appease the

popular clamor of their political base.45 As Chief Justice Marshall warned in Fletcher v. Peck,

[I]t is not to be disguised that the framers of the constitution viewed,

with some apprehension, the violent acts which might grow out of
the feelings of the moment; and that the people of the United States,
in adopting that instrument, have manifested a determination to
shield themselves and their property from the effects of those sudden
and strong passions to which men are exposed. The restrictions on
the legislative power of the states are obviously founded in this
sentiment; and the constitution of the United States contains what
may be deemed a bill of rights for the people of each state. No state
shall pass any bill of attainder. In this form the power of the
legislature over the lives and fortunes of individuals is expressly
restrained.46

2. The Constitution only gives the Senate Jurisdiction over the President,
not the former President, of the United States.
One legal scholar described the simplicity of Article II’s limitation, which House Managers

try in vain to make seem inscrutable, in this way: “A half-grown boy reads in a newspaper that the

President occupies the White House; if he would understand from that that all Ex-Presidents are

in it together he would be considered a very unpromising lad.”47 That is the first reason why a

former President cannot be impeached: he is not the President anymore.

As Professor Phillip Bobbit, one of the leading scholars on the impeachment process, and

author of Impeachment: A Handbook (with Black, New Edition) (2018), recently argued:

45
United States v. Brown, 381 U.S. 437, 442 - 445 (1965).

46
Fletcher v. Peck, 10 U.S. 87, 137–38, 3 L. Ed. 162 (1810).
47
Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An
Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 20 (2001).

17
 There is no authority granted to Congress to impeach and convict
persons who are not “civil officers of the United States.” It’s as
simple as that. But simplicity doesn’t mean unimportance. Limiting
Congress to its specified powers is a crucial element in the central
idea of the U.S. Constitution: putting the state under law.48

Further textual support on this issue is evidenced by the Founders use of “shall” when

identifying the penalty to be imposed, i.e. “…shall be removed from Office….” Justice Scalia

once wrote, when the word "shall" can reasonably be understood as mandatory, it ought to be taken

that way.49 In 2007 the Supreme Court confirmed that

The word `shall' generally indicates a command that admits of no

discretion on the part of the person instructed to carry out the
directive"); Black's Law Dictionary 1375 (6th ed. 1990) ("As used
in statutes ... this word is generally imperative or mandatory").50

The text then is very clear: Conviction at an impeachment trial requires the possibility of

a removal from office. Without that possibility, there cannot be a trial. In the civil law analogue,

this case would be summarily dismissed under Federal Rules of Civil Procedure 12(b)(6), for

“failure to state a claim upon which relief can be granted.”51

The second reason a former President cannot be impeached follows logically from the first.

The purpose of impeachment is to remove someone from office, and unequivocally, this

impeachment trial is not about removing someone from office, as Mr. Trump left office on January

20, 2021. He is now, both factually and legally, a private citizen.

48
Bobbit, Why the Senate Shouldn’t Hold a Late Impeachment Trial, Law Fare Blog (Jan. 27, 2021),
https://www.lawfareblog.com/why-senate-shouldnt-hold-late-impeachment-trial#.
49
Scalia, Antonin; Garner, Bryan A. (2012). "11. Mandatory/Permissive Canon". Reading Law: The
Interpretation of Legal Texts (Kindle ed.). St. Paul, MN: Thomson West. ISBN 978-0-314-27555-4.
50
National Ass'n v. Defenders of Wildlife, 551 U.S. 644, 661-62 (2007).
51
Fed. R. Civ. P. 12

18
 House Managers have no authority to legally redefine “former Presidents” as “Presidents”

for some constitutional provisions and not others. Would they accept a former President

conducting foreign policy on behalf of the United States? Would they be content to have a “former

President” nominate a Justice for a vacant seat on the Supreme Court? Of course not. That is why

the term ‘former President’ is actually a term of art with legal ramifications, as evidenced by the

Former Presidents Act (3 U.S.C. § 102 note), which states that:

“(f)As used in this section, the term ‘former President’ means a

person—
“(1) who shall have held the office of President of the United States
of America;
“(2) whose service in such office shall have terminated other than
by removal pursuant to section 4 of article II of the Constitution of
the United States of America; and
“(3) who does not then currently hold such office.

As it relates to the above definitional requirements, Mr. Trump has held the Office of

President of the United States of America; his service was not terminated by removal pursuant to

section 4 of article II of the Constitution (and even if this sham late impeachment were to result in

a conviction, he still would not have been thus removed); and he does not currently hold such

office. He is therefore legally in the separate category of ‘former President’ and is statutorily not

the President of the United States referred to in the Impeachment Clauses of the Constitution. The

text of the Constitution that provides only “[t]he President, Vice President and all Civil Officers

of the United States, shall be removed from Office on Impeachment,” supports the conclusion that

the impeachment process applies only to officials in office.52 This provision does not state “a”

President or “a former” President, it unequivocally states “the” President. And when one refers to

52
Harold J. Krent, Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal
Dimension of Impeachments, 95 Chi.-Kent L. Rev. 537, 540 (2020)(noting that RTILCE II “appears to limit
impeachment of “officers” only when “removal” is possible, i.e., when the officer is still serving.”)

19
“the” President, the reference is clearly to the current President. The text of the Constitution simply

does not contain language allowing for the impeachment of a former President and does not

address “late impeachments,” i.e., an impeachment of a former officer.53 Any inference from

British practice about former officials is therefore a nullity because they would impeach private

citizens, and our Framers decided not to do that. We chose not to remain British after all.

3. The Founders Knowingly Did Not Extend The Power Of Impeachment

To Former Officials.
The Founders clearly decided to purposefully limit the power of impeachment in this way.

The concept of a “late impeachment” was in use at the time the Constitution was written, with

Great Britain specifically allowing impeachment of former officials.54 In fact, the British

Parliament could, and did, impeach private citizens. The Framers could have explicitly included a

provision allowing for the impeachment of a former President, but they did not. Instead, the

Constitution was written to restrict impeachment to specific public officials: “the President, Vice

President, and other civil officers."55

“There is little discussion in the historical record surrounding the framing and ratification

of the Constitution that treats the precise question of whether a person no longer a civil officer can

53
As stated in a recent report from the Congressional Research Service on “The Impeachment and
Trial of a Former President”: “The Constitution does not directly address whether Congress may impeach
and try a former President for actions taken while in office,” and “the text is open to debate.” Congressional
Research Service “The Impeachment and Trial of a Former President”
https://crsreports.congress.gov/product/pdf/LSB/LSB10565 (Jan. 15, 2021).
54
Kalt at 25-26 (discussing state constitutions which specifically provided for late impeachments and
quoting several constitutions which specifically provided for impeachment of an official “when he is out of
office” or “either when in office, or after his resignation, or removal”).
55
As argued by Jeremiah S. Black during Senator William Blount’s impeachment: “A half-grown
boy reads in a newspaper that the President occupies the White House; if he would understand from that
that all Ex-Presidents are in it together he would be considered a very unpromising lad.” 3 Hinds Precedents
of the House of Representatives, § 2007 at 314 (1907). https://www.govinfo.gov/collection/precedents-of-
the-house?path=/GPO/Precedents%20of%20the%20U.S.%20House%20of%20Representatives

20
be impeached—and in light of the clarity of the text, this is hardly surprising.”56 The text is also

doubly clear given the clarity of available models in some of the United States themselves that did

allow for late impeachments to take place.57

While the House Managers cite to some non-binding statements from John Quincy Adams

about the possibility of late impeachment (in a case that did not even end with an impeachment)

there is equal and perhaps even more on the scant record that would weigh against it. For example,

as Professor Brian Kalt details, in multiple places Alexander “Hamilton seemed to believe that

removal was a required component of the impeachment penalty, which suggests that he viewed

56
Bobbit, supra. https://www.lawfareblog.com/why-senate-shouldnt-hold-late-impeachment-trial
57
For example, the state Constitution of Vermont (7/1777) provides “the General Assembly [sic] of
the Representatives of the Freemen of Vermont . . . may . . . impeach State criminals. Every officer of State,
whether judicial or executive, shall be liable to be impeached by the General Assembly, either when in
office, or after his resignation, or removal for mal-administration . . . Vt. Const. of 1777, ch. 2, § 20; or
Pennsylvania (9/1776): “The general assembly of the representatives of the freemen of Pennsylvania . . .
may . . . impeach state criminals. Every officer of state, whether judicial or executive, shall be liable to be
impeached by the general assembly, either when in office, or after his resignation, or removal for mal-
administration . . . .Pa. Const. of 1776, ch. II, §22.

As Brian Kalt explains, ideas like requiring a two-thirds majority to convict in the Senate are not
self-evident, which is why the Framers took the time to spell them out. Late impeachment, so the argument
goes, which is also not self-evident, would have also required specification if the Framers wished to include
it as a possibility. Kalt at 37, see also id at fn. 441:

See N.J. Const. of 1844, art. V, §11 (“The governor and all other officers
under this State shall be liable to impeachment for misdemeanor in office,
during their continuance in office, and for two years thereafter.”)
(emphasis added); Proceedings of the New Jersey State Constitutional
Convention of 1844, at 600 (New Jersey Writers' Project ed., 1942)
(chronicling last-minute addition of late impeachment provision); see also
N.J. Const. art. VII, §3, cl. 1 (“The Governor and all other State officers,
while in office and for two years thereafter, shall be liable to impeachment
for misdemeanor committed during their respective continuance in
office.”).

Clearly late impeachment was something that people thought about, talked about, and wrote about, if they
wanted to include it in their laws.

21
late impeachment as impossible.”58 In The Federalist No. 39, Madison wrote that the President of

the United States is impeachable at any time during his continuance in office.59 (Emphasis

added).60

58
Kalt at 43.
59
Kalt at 50, citing The Federalist No. 39, at 397 (James Madison) (Clinton Rossiter ed., 1961). Kalt
also notes that the other discussions of impeachment in The Federalist concerned removability, which
buttresses the argument that impeachment was intended for sitting officers. Id. at 51.
60
Other states, like Georgia had late impeachment clauses up to a point and then and removed them.
Kalt quotes the Georgia committee’s discussion at length, noting that their consideration is very
illuminating as an example of commonsense intuitions about the idea of a late impeachment:

DR. PYLES: May I raise another question? What about this “. . . against all persons who
shall have been . . . .” What's the point? . . This is highly confusing if you say “. . . shall
have been in office . . . .” That's almost ex post facto or something.
MR. CLARK: How can you impeach somebody who's not in office[?]
DR. PYLES: Yeah. Or why. We've got criminal provisions, law, civil law.
MR. CLARK: Any understandable background for that, that phraseology,
“shall have been” ?
CHAIRMAN SWEENEY: No.. . .
MR. TIDWELL: If you look further into what you can do, the
consequences are, he cannot hold office again. That might shed some light
on that. . ..
MR. HILL: . . . Now a person could leave office and two or three years
later something is found out about that person that would be serious
enough to warrant an impeachment trial so that he or she could never hold
office again. . . . I don't think the language was happenstance, I think it
was intended to cover both people in office and former officeholders.
MR. CLARK: . . . [I]mpeachment is to put that person out of office, it
seems to me, and the idea if he has committed some malfeasance or
violation, that there would be criminal support, this falls into court action
rather than the ponderous procedure of an impeachment. I just can't see it
ever coming about . . . it clutters up again and adds questions to the
Constitution that is just not necessary.
MS. RYSTROM: I agree with you....
DR. PYLES: I actually think the impeachment provision serves as a
deterrent or maybe a threat against an officer, whether it will ever be
carried out or not, the fact that it could be carried out is a pretty viable
threat it would seem to me to an individual before he continued to persist
in whatever it was that would be heinous enough to warrant impeachment.
CHAIRMAN SWEENEY: Especially if he knows that it may come up
after he leaves office.
MR CLARK: . . . I don't think it's enough--it's not important enough to
quibble about. I don't think it's likely to come up again, so I would be
22
 Interestingly, where the Constitution refers to “the President” in Article 1, Section 3 and

gives protocols for impeachment, such as “when the President of the United States is tried [in the

Senate], the Chief Justice shall preside,” the Senate reads this as applicable to the impeachment

trial only of the current sitting President. Yet, under the House Managers’ theory, they urge the

Senate to read the constitutional provision that specifies “the President” is subject to impeachment

to include a former President.61

4. Historical Precedents
(a) The Failed Attempts to Impeach Senator William Blount and
Secretary of War William Belknap
The House Managers suggests there is “congressional precedent” for impeaching a former

President in the impeachment cases of Senator William Blount and Secretary of War William

Belknap. These two cases are actually inapposite and do not provide any binding precedential

authority for impeaching a former President. .

In 1797, United States Senator William Blount of Tennessee faced allegations of

conspiring to help Great Britain seize Spanish-controlled areas in Florida and what is now

Louisiana as part of a scheme to pay off debts incurred from land speculation. Blount was expelled

opposed to leaving the wording in there, I don't think it serves any

protective purpose at all.
CHAIRMAN SWEENEY: Well, is there a motion to drop it?. . .
DR. PYLES: I so move.. . .
CHAIRMAN SWEENEY: All in favor?
MS. RYSTROM: I was getting convinced on the other side as this
discussion went on.
CHAIRMAN SWEENEY: Four [out of seven committee members
present] in favor of dropping the language.

Kalt at 109-11, quoting from 2 State of Georgia Select Committee on Constitutional Revision, Transcript
of Meetings, 1977-1981, Committee to Revise Article III, Oct. 29, 1979, at 29-30 (stating subcommittee's
understanding that leaving office “obviate[s] the need for an impeachment proceeding.”). Virginia removed
late impeachment in 1830. See Kalt at 114, citing to Va. Const. of 1830, art. III, §13.
61
House Trial Memo. at 48-50.
23
by the Senate prior to his impeachment proceedings in 1798, he therefore argued that he was not

subject to trial and refused to appear. Specifically, Blount argued that Senators or members of

Congress could not be impeached, but only expelled by their respective chamber, and, even if

Senators could be impeached, ex-Senators could not.

“In a close vote, the Senate defeated a resolution asserting Blount was an impeachable civil

officer. But the debate around this vote, and the text of the resolution, do not make clear whether

the resolution was rejected because it was felt that a senator was not “a civil officer” or whether,

having been expelled, Blount ceased to be impeachable.”62 Therefore the case has little or no

precedential value supporting a late impeachment.

In 1876, Belknap, Secretary of War under President Ulysses S. Grant, was investigated by

the House for corruption. Belknap had accepted over $20,000 in kickbacks for the appointment of

an associate to a lucrative military trading post at Fort Sill.63 However, on March 2, 1876, after the

House had taken up the issue but before the House voted on his impeachment, Grant accepted

Belknap’s resignation64 – apparently just minutes before the House was set to vote.65 Despite

Belknap’s resignation, the House voted to impeach him anyway. The issue of whether an officer

who had resigned could be impeached was heavily debated from May15 to May 29th, but

62
Id.
63
United State Senate.gov
https://www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial.htm).
64
Of course the Belknap case is arguably different than Mr. Trump’s because Mr. Trump did not try
and escape a trial by resignation; this entire constitutional problem was created by the Democratic
leadership that chose to wait until after his term had naturally expired.
65
Id.

24
ultimately the Senate voted 37-29 that it had the power to hold an impeachment trial for a former

officeholder and proceeded to have a trial.66

On August 1, 1876, Belknap was acquitted because less than 2/3 of the Senate voted for

impeachment.67 While historical accounts suggest that few senators believed Belknap was

innocent, the majority of those voting to acquit him did so because they did not think the Senate

had jurisdiction to convict someone who was no longer in office.68

66
Id.
67
Id.
68
3 Hinds Precedents of the House of Representatives, § 2467 (1907):

An analysis of the reasons given with the votes shows that of those voting ‘‘guilty,’’ 2
believed that the Senate had no jurisdiction, but gave their verdict in good faith, since by
vote jurisdiction had been assumed. Of those voting ‘‘not guilty,’’3 announced that they
did so on the evidence, while 22 announced that they voted not guilty because they believed
the Senate had no jurisdiction. One Senator stated that he declined to vote because he
believed they did not have jurisdiction.

As Alan Dershowitz framed this case and its relative import:

No former official has ever been convicted by the Senate, and only one
has been impeached. Secretary of War William W. Belknap was
indisputably guilty of numerous impeachable offences, to which he
confessed as he resigned his office hours before the House unanimously
impeached him in 1876. The Senate voted in favor of a procedural motion
affirming its jurisdiction to try Belknap’s impeachment. But two dozen
senators who believed he was guilty voted to acquit on jurisdictional
grounds. A close vote nearly a century and a half ago doesn’t establish a
binding precedent.

Alan Dershowitz, Senate Should Dismiss Article Impeachment Since Trump is Now Private
Citizen, The Hill (Jan. 21, 2021), https://thehill.com/homenews/media/535261-dershowitz-
senate-should-dismiss-article-impeachment-since-trump-is-now.

There are also other recent precedents, in 1926 and 2009, in which judges resigned having been
impeached, after which the House then petitioned the Senate to withdraw the indictment. See
Bobbit, supra., https://www.lawfareblog.com/why-senate-shouldnt-hold-late-impeachment-trial.

25
 Significantly, neither Belknap nor Blount received the required two-thirds majority of the

Senate and were acquitted so their proceedings provide no binding precedent establishing the

Senate’s jurisdiction to convict former officials of impeachment. “These cases cannot be read as

foreclosing an argument that they never dealt with.”69 This is critically important because the

burden of proof applies to both jurisdictional and substantive elements: “[T]he substantive

elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element

connects the law to one of Congress’s enumerated powers, thus establishing legislative authority.

Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is

so, both may play a real role in a criminal case.”70 With impeachments, jurisdiction and guilt must

be found by a two-thirds majority. Neither case established jurisdiction by the required two-thirds’

majority. These two instances present, at best, an example of hypothetical jurisdiction.71 It is also

69
Waters v. Churchill, 511 U.S. 661, 678, 114 S. Ct. 1878, 1889 (1994)(plurality). Furthermore, a
court “is not bound by prior sub silentio holdings when a subsequent case finally brings the jurisdictional
issue before us.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63, n.4 (1989)(Court’s alterations
omitted) quoting Hagans v. Lavine, 415 U.S. 528, 535, n.5 (1977).
70
Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016) (citations omitted).
71
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02, 118 S. Ct. 1003, 1016 (1998). The
Steel Court discussed the threshold inquiry into jurisdiction noting contested questions of law could not be
resolved when jurisdiction was in doubt:

Hypothetical jurisdiction produces nothing more than a hypothetical

judgment -- which comes to the same thing as an advisory opinion,
disapproved by this Court from the beginning. Muskrat v. United States,
219 U.S. 346, 362, 55 L. Ed. 246, 31 S. Ct. 250 (1911); Hayburn's Case,
2 U.S. 409, 2 Dall. 409, 1 L. Ed. 436 (1792). Much more than legal niceties
are at stake here. The statutory and (especially) constitutional elements of
jurisdiction are an essential ingredient of separation and equilibration of
powers, restraining the courts from acting at certain times, and even
restraining them from acting permanently regarding certain subjects. See
United States v. Richardson, 418 U.S. 166, 179, 41 L. Ed. 2d 678, 94 S.
Ct. 2940 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 227, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974). For a court to
pronounce upon the meaning or the constitutionality of a state or federal
26
worth noting that neither of those cases dealt with a President, with his unique status in the

Constitution, and with the clear definitional limits that apply to him and not to others.

(b) More Recent Impeachment Proceedings

In the past, Congress has acknowledged and exercised its duty to not impeach when an

official is no longer in office. In the case involving the impeachment of President Richard M.

Nixon, Congress decided not to impeach because he resigned from office. “[A]s a practical

matter… the resignation of an official about to be impeached generally puts an end to impeachment

proceedings because the primary objective—removal from office—has been accomplished.” 72

In May 1974, the House Judiciary Committee began formal impeachment hearings against

President Nixon in regard to the Watergate scandal, and, on July 27, 1974, the House Judiciary

Committee approved three articles of impeachment and reported them to the full House for

consideration. Knowing that he was about to be impeached in the House and convicted in the

Senate, Nixon resigned on August 8, 1974. The House officially ended the impeachment process

against him on August 20, 1974, by accepting the committee’s report, but deciding not to further

advance impeachment proceedings.

As professor Bobbitt explained: “Why didn’t they go ahead and impeach him when he

resigned? The answer is they didn’t believe that they had the authority to impeach someone who

could not be removed, someone who was no longer, as the [constitutional] text requires, a ‘civil

officer’ of the United States.”73 A memo from the Office of Legal Counsel at the time reached a

law when it has no jurisdiction to do so is, by very definition, for a court

to act ultra vires.
72
House Practice: A Guide to the Rules, Precedents and Procedures of the House, Chap. 27
Impeachment § 2 at 604-05.
73
Interview with Columbia Law professor Philip Bobbitt, co-author of Impeachment: A Handbook
(https://www.npr.org/2021/01/18/957866252/can-the-senate-try-an-ex-president).
27
very similar conclusion “[a]s a practical matter, if the President should resign, this would probably

result in termination of impeachment proceedings.”74

(c) State Courts Have Rejected Claims Similar To Those Made By

The House Managers In Similar Late Impeachment Matters.

While the Supreme Court has not yet addressed the question of a late impeachment, some

state courts have. In State v. Hill, the Supreme Court of Nebraska dealt with the exact same

substantive question facing the Senate now, on almost identical Constitutional language. They

addressed head on and dismissed the same claims that the House Managers now make. First, they

started with the plain meaning of the word officer at issue:

It is urged by counsel for the managers that ex–officers are liable to

impeachment for official misdemeanors committed while in office;
that jurisdiction attaches immediately upon the commission of an
impeachable offense; and that the expiration of the official term does
not deprive the legislature of the power to impeach, or the court to
try. It cannot be said that there is any provision of the constitution
which expressly confers the authority to impeach a person after he
is out of office; while section 5, already quoted, designates the
persons who may be impeached as “all civil officers of this state.”
This language is unambiguous. It means existing officers,––persons
in office at the time they are impeached. Ex–officials are not civil
officers within the meaning of the constitution. Jurisdiction to
impeach attaches at the time the offense is committed, and continues
during the time the offender remains in office, but no longer.75

Then the Court proceeded to address the question of disqualification as a separate remedial

punishment:

The necessary implication of the provisions in section 14, art. 3, of

the constitution, that “judgment in cases of impeachment shall not
extend further than removal from office and disqualification to hold

74
U.S. Department of Justice, Legal Aspects of Impeachment: An Overview, Volumes 1-5,
https://books.google.com/books?id=tHyQAAAAMAAJ&printsec=frontcover&source=gbs_ge_summary
_r&cad=0#v=onepage&q&f=false.
75
State v. Hill, 55 N.W. 794, 796 (Neb. 1893).

28
 and enjoy any office of honor, profit, or trust in this state,” is that
the offending party must be in office at the time the impeachment
proceedings are commenced. In case of impeachment, either one of
two judgments can be pronounced, namely, removal from office, or
removal and disqualification to hold office. It is obvious that there
can be no judgment of removal where the party was not an officer
when impeached. It is claimed by counsel for the managers, as we
understand their argument, that a judgment of disqualification can
be entered without a judgment of removal. All will concede that
disqualification to hold office is a punishment much greater than
removal; so that, if the construction contended for by counsel is the
true one, then, in case the person impeached is out of office, he is
liable to a more severe penalty than might have been inflicted upon
him had he been impeached before he went out of office. We cannot
believe that the members of the convention who framed the
constitution so intended. Judge Story, in discussing the question
whether a person can be impeached after he has ceased to hold
office, at section 803 says: “As it is declared in one clause of the
constitution that judgment in cases of impeachment shall not extend
further than a removal from office, and disqualification to hold any
office of honor, trust, or profit under the United States, and in
another clause, that the ‘president, vice president, and all civil
officers of the United States shall be removed from office on
impeachment for, and conviction of, treason, bribery, or other high
crimes or misdemeanors,’ it would seem to follow that the senate,
on the conviction, were bound in all cases to enter a judgment of
removal from office, though it has a discretion as to inflicting the
punishment of disqualification. If, then, there must be a judgment of
removal from office, it would seem to follow that the constitution
contemplated that the party was still in office at the time of
impeachment. If he was not, his offense was still liable to be tried
and punished in the ordinary tribunals of justice. And it might be
argued, with some force, that it would be a vain exercise of authority
to try a delinquent for an impeachable offense, when the most
important object for which the remedy was given was no longer
necessary or attainable; and, although a judgment of disqualification
might still be pronounced, the language of the constitution may
create some doubt whether it can be pronounced without being
coupled with a removal from office.” 76

76
Id. at 796-97. Next the Court “rejected the British cases of Hastings and Melville as irrelevant given
the broader scope of English impeachment… [and] rejected the Belknap precedent because of the weakness
of the Senate's majority and also because, unlike Belknap, Benton and Hill were out of office from the
natural expiration of their terms.” Kalt, at 117; see also id. at fn. 454: describing how “in a case decided the
same day, the court dismissed another late impeachment on different grounds, while noting its argument in
Hill. State v. Leese, 55 N.W. 798, 799 (Neb. 1893) (citing Hill and pointing out that the legislature had no
power to impeach Leese because he had been out of office for two years).”
29
 The most recent state court opinion on late impeachment is Smith v. Brantley,77 a Florida

case from 1981 that also declared late impeachment unacceptable. The Florida Supreme Court

held that:

officers are officers; ex-officers, who could not be suspended or

removed from office, are not. The court thus was making the
linguistic argument that “officer” meant “sitting officer” and the
functional argument that “the primary and dominant purpose of
impeachment in Florida is removal of an officeholder from
office. Once an officer has resigned, this purpose is fulfilled, the
court said, and the mere possibility of disqualification from future
office does not change the fact that the main purpose of the process
has been achieved. The court considered Blount, Belknap, and
Ferguson, but argued that in each case the resignation did not occur
until impeachment proceedings had begun.78

B. Congress’ Power To Impose Penalties Upon Conviction Of Impeachment Is

Limited to Removal, And (Not Or) Disqualification.
The Constitution grants Congress only the power to remove a person’s right to run for

office when it is part of the process of removal from office. Article II, Section 4, of the Constitution

states that the only purpose of an impeachment is whether “the President, Vice president and all

civil Officers of the United States, shall be removed from office.” The only purpose of

impeachment is to remove the President, Vice-President, and civil officers from office. When a

President is no longer in office, the objective of an impeachment ceases.79

77
Smith v. Brantley, 400 So. 2d 443 (Fla. 1981)
78
Kalt at 120-121.
79
Kalt at 66, see also fn. 112:

See, e.g., 14 Annals of Cong. 430-31 (1805) (speech of Luther Martin in

impeachment trial of Justice Samuel Chase) (“The President, Vice
President, and other civil officers can only be impeached.... In the first
article, section the third, of the Constitution, it is declared that, judgment
in all cases of impeachment, shall not extend further than removal from
office, and disqualification to hold any office of honor, trust, or profit,
30
 This impeachment trial is being pursued solely to preclude Mr. Trump, a private citizen,

from holding any future office. However, the Constitution does not provide for the impeachment

of a private citizen who is not in office. Further, the Constitution only grants the Senate the

additional power to remove a person’s right to run for office as part of the process of removal from

office.80 When a person ceases to hold an office, he immediately becomes a private citizen,

impervious to removal, and therefore to impeachment and trial by the Senate.

As Professor Harold Krent has noted, “although the Impeachment Clause in Article I states

that the penalty for impeachment shall not extend beyond removal and disqualification from office,

that clause reads as a limit on what type of punishment can be meted rather than addressing

“when.” The Framers presumably were signaling the change from the British practice under which

additional penalties were possible. There is no language in the Constitution suggesting that the

impeachment authority is continuous.”81

This idea was perhaps best expressed by Supreme Court Justice Joseph Story, in his

influential three volume treatise Commentaries on the Constitution of the United States:

§ 801. As it is declared in one clause of the constitution, that

“judgment, in cases of impeachment, shall not extend further, than
a removal from office, and disqualification to hold any office of
honour, trust, or profit, under the United States;” and in another
clause, that “the president, vice president, and all civil officers of the
United States, shall be removed from office on impeachment for,
and conviction of, treason, bribery, or other high crimes or
misdemeanors;” it would seem to follow, that the senate, on the

under the United States. This clearly evinces, that no persons but those
who hold offices are liable to impeachment.
80
Dershowitz, No, You can’t try an Impeached Former President, Wall Street Journal (Jan. 21,
2021),https://www.wsj.com/articles/no-you-cant-try-an-impeached-former-president-
11611167113?mod=article_inline (contrasting the word “and” with the word “or.”)
81
Harold J. Krent, Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal
Dimension of Impeachments, 95 Chi.-Kent L. Rev. 537, 542 (2020).

31
 conviction, were bound, in all cases, to enter a judgment of removal
from office, though it has a discretion, as to inflicting the
punishment of disqualification. If, then, there must be a judgment of
removal from office, it would seem to follow, that the constitution
contemplated, that the party was still in office at the time of the
impeachment. If he was not, his offence was still liable to be tried
and punished in the ordinary tribunals of justice. And it might be
argued with some force, that it would be a vain exercise of authority
to try a delinquent for an impeachable offence, when the most
important object, for which the remedy was given, was no longer
necessary, or attainable. And although a judgment of
disqualification might still be pronounced, the language of the
constitution may create some doubt, whether it can be pronounced
without being coupled with a removal from office.82

The House Managers’ failure to grasp this concept is evident from their misplaced reliance on this

language to try and create a work-around of a problem of their own making, i.e. Mr. Trump was

no longer President at the time the House filed the Article of Impeachment in the Senate. Instead,

their argument further demonstrates the point that Mr. Trump could not be removed from office

(because his term ended), the condition precedent to any further penalty. As Professor Alan

Dershowitz explained:

The Constitution is clear: “The president . . . shall be removed from

office on impeachment . . . and conviction”—not by the expiration
of his term before the impeachment process is complete. It also
mandates that “judgment in cases of impeachment shall not extend
further than to removal and disqualification”—
not or disqualification.83

82
Justice Joseph Story, Commentaries on the Constitution of the United States at § 801.
83
Alan Dershowitz, No, You can’t try an Impeached Former President, Wall Street Journal,
(Jan. 21, 2021), https://www.wsj.com/articles/no-you-cant-try-an-impeached-former-president-
11611167113?mod=article_inline

32
Other scholars have forcefully rejected the failed interpretation the House Managers try to advance

in an effort to salvage this doomed impeachment by spelling out the unstated assumptions inherent

in their position:

by this logic a president could be disqualified from holding office

without being removed, an obvious absurdity. This argument asserts
that, because the Senate could, by a simple majority, disqualify a
person impeached and convicted under Article II, it would thwart
the operation of Article I, Clause 7’s list of permissible punishments
to let the convicted former officer go free. Were it otherwise, an
officer could avoid removal and disqualification by simply
resigning. This circular argument assumes the truth of the
proposition that a person no longer in office can be impeached in the
first place and then infers from this assumption that such a power
should not be frustrated. It is not compatible with Article II, which
provides the sole constitutional grounds for trial in the Senate on the
basis of which impeachment penalties can be imposed: the
commission of bribery, treason, or other high crimes and
misdemeanors by a civil officer leading to his removal. It relies
instead on a tortured inference from Article I, whose text says
nothing about who can be impeached or on what grounds. In an
effort to salvage the penalty of disqualification where an official has
been impeached while in office but has resigned, advocates for this
view would have the Senate convict a person no longer in office,
inventing a new basis for conviction beyond that provided in Article
II.84

The Constitution does not provide for an impeachment of someone who is not in office as a means

to an end resulting in only disqualification – and for good reason. As Alexander Hamilton wrote:

Nothing is more common than for a free people, in times of heat and
violence, to gratify momentary passions by letting into the
government principles and precedents which afterwards prove fatal
to themselves. Of this kind is the doctrine of disqualification,
disfranchisement, and banishment by acts of the legislature. The
dangerous consequences of this power are manifest. If the
legislature can disfranchise any number of citizens at pleasure by
general descriptions, it may soon confine all the votes to a small
number of partisans, and establish an aristocracy or an oligarchy; if
it may banish at discretion all those whom particular circumstances

84
Bobbit, supra., https://www.lawfareblog.com/why-senate-shouldnt-hold-late-impeachment-trial

33
 render obnoxious, without hearing or trial, no man can be safe, nor
know when he may be the innocent victim of a prevailing faction.
The name of liberty applied to such a government would be a
mockery of common sense.85

The House Managers put a lot of misplaced importance onto the fact that Article I Section

7 contains a clause reminding Congress of its own limitations, namely that after a conviction and

removal, the only other penalty Congress can impose is disqualification. “Judgment in Cases of

Impeachment shall not extend further than to removal from Office, and disqualification to hold

and enjoy any Office of honor,” does not mean that disqualification is a separate or alternative

form of punishment entirely. Disqualification from future office is simply an additional

discretionary penalty that the Senate may impose once it has determined the original purpose of

the impeachment, removal, is proper. Disqualification, however, is not the purpose of an

impeachment proceeding, and it is not available simply to disqualify a former public officer from

future officeholding.

But that is not all. The House Managers are not content to argue that an officer who is

impeached while in office can then be tried after they leave office; 86 the House Managers dig in

further and claim that a person can be impeached at any time after they leave office.87 The absence

of a statute of limitations suggests that process is confined to present office holders: “A federal

85
Hamilton, A., A Letter from Phocion to the Considerate Citizens of New York (January 27, 1784),
https://founders.archives.gov/documents/Hamilton/01-03-02-0314#ARHN-01-03-02-0314-fn-0001 .
86
Although the same textual inferences against such proceedings would apply, especially because
there were states that did allow for just that: some states, there is an arguable textual and structural basis
for drawing a distinction between the stages of impeachment. For instance, Nebraska state law provided:
“An impeachment of any state officer shall be tried, notwithstanding such officer may have resigned his
office, or his term of office has expired.” This language more easily supports the notion that impeachment
is limited to sitting officers but that trial is not. Kalt at 76 citing to State v. Hill, 55 N.W. at 798 (quoting
Neb. Comp. Stat. ch. 19, § 8 (1891)).
87
House Trial Memo at 2.

34
cause of action ‘brought at any distance of time’ would be ‘utterly repugnant to the genius of our

laws.’"88

In addition, at any given moment in time “[t]he majority party could threaten to impeach

former officeholders of the minority party unless support is forthcoming on a particular

appropriations or other bill. In other words, the ongoing threat of impeachment might distort law-

making… and, as a functional matter, might interfere with the balance of powers otherwise

prescribed in the Constitution.”89

This is a dangerous slippery slope that the Senate should be careful to avoid. Were it

otherwise, a future House could impeach former Vice President Biden for his obstruction of justice

in setting up the Russia hoax circa 2016. While he could not be removed from the Vice Presidency

because his term ended in 2017, he could be barred from holding future office. The same flawed

logic the House Managers advance could apply to former Secretary of State Clinton for her

violations of 18 U.S.C § 793. Impeachment cannot and should not be allowed to devolve into a

political weapon.

Setting aside the clear meaning of the text, the House Managers argument about the need

for late impeachment with disqualification upon conviction to serve as a deterrence for Presidential

wrongdoing is also unfounded. A President who left office is not in any way above the law; as the

Constitution states he or she is like any other citizen and can be tried in a court of law. From a

political standpoint as well, an officer who has left office and is seeking to return faces the ultimate

88
Wilson v. Garcia, 471 U.S. 261, 271, 105 S. Ct. 1938, 1944 (1985) (quoting Adams v. Woods, 6
U.S. (2 Cranch) 336, 342 (1805)), abrogated in part on other grounds, Pub. L. No. 101-650, Title III, §
313(a), 104 Stat. 5089, 5114-5115 (1990).
89
Id. See also, Laurent Sacharoff, Former Presidents and Executive Privilege, 88 Tex. L. Rev. 301,
315 (2009), noting that Congress “cannot impeach a former President.”

35
political check even without disqualification- the electorate. It is almost laughable that the House

Managers, who spent four years pretending that Mr. Trump was completely ineffective and

illegitimate, are now so worried that he might win again that they seek to illegally impair him.

Accordingly, the Senate does not have the power to try a former President and should

dismiss the Article of Impeachment. Any other outcome would do profound and lasting damage

to the institution of the Presidency. In this political climate we have seen the statues and

monuments of former Presidents attacked because the values of their times were not in line with

supposed modern sensibilities; if this impeachment of a former President is allowed to go forward,

we could expect dozens more to follow from potentially both sides of the aisle, depending on

which party happens to be in the majority.

Future Congresses would judge the conduct of Presidents and other

civil officers from the perspective of a different political and social
milieu. From the vantage point of subsequent Congresses, President
Clinton may have had a #MeToo problem; President Lyndon
Johnson evidently spoke disparagingly about race; President George
W. Bush lied to the public about domestic surveillance, and so on.
And, although historical judgment may, at times, be healthy, the
power of impeachment comes with tangible penalties.90

It is also true that, even if the Senate were to convict him without jurisdiction, such a

decision would not go unchallenged. If Mr. Trump decides to run again, any non-binding

‘disqualification’ from an unauthorized Senate vote could and would be challenged in a court of

law.91 As scholars across the spectrum have agreed, certain aspects of impeachment are justiciable.

90
Harold J. Krent, Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal
Dimension of Impeachments, 95 Chi.-Kent L. Rev. 537, 546 (2020).
91
Christopher Silvester, Beware the bill of attainder, The Critic (Jan. 29, 2021),
https://thecritic.co.uk/beware-the-bill-of-attainder/

36
For example, if, in a case like this, where “the President was tried by someone other than the Chief

Justice,”92 a Court would be likely to hear the matter on review.93

C. The Article of Impeachment Violates Mr. Trump’s First Amendment Rights

Aside from the fact that it does not constitute a crime, let alone a high crime or

misdemeanor, President Trump’s speech at the January 6, 2021 event fell well within the norms

of political speech that is protected by the First Amendment, and to try him for that would be to

92
Josh Blackman, What happens if the Chief Justice cannot serve at the Presidential impeachment
trial?, The Volokh Conspiracy (Nov. 25, 2019), https://reason.com/volokh/2019/11/25/what-happens-if-
the-chief-justice-cannot-serve-at-the-presidential-impeachment-trial/.
93
As Adam Liptak described it in the NY Times;

Still, the 1993 decision did appear to leave open a possible role for the
court were the Senate to violate what Chief Justice Rehnquist wrote were
"the three very specific requirements" in the constitutional text — "that the
Senate's members must be under oath or affirmation, that a two-thirds vote
is required to convict and that the chief justice presides when the president
is tried."
When the case was argued, he asked the government's lawyer, Solicitor
General Ken Starr, whether violations of those provisions could be
challenged in court. (Mr. Starr would go on to investigate Mr. Clinton as
independent counsel and to prepare the report that led to his
impeachment.)
For instance, Chief Justice Rehnquist asked, what would happen if the
chief justice died and Congress "created the office of vice chief
justice?"
"We're going to let him preside," the chief justice said, sketching out the
Senate's reasoning, "because it would just be catastrophic to wait for the
appointment of a chief justice while this impeachment is pending."
"Can the Senate not do that because of the specific language 'the chief
justice shall preside'?" Chief Justice Rehnquist asked. "Would that action
by the Senate, followed by the presiding by the vice chief justice, be
judicially reviewable?"
"I have to admit," Mr. Starr said, with apparent reluctance, that the answer
was yes.

Adam Liptak, Can Trump Challenge His Impeachment in the Supreme Court, New York Times (Dec. 17,
2019), https://www.nytimes.com/2019/11/25/us/trump-impeachment-supreme-court.html.

37
do a grave injustice to the freedom of speech in this country.94 Perhaps in realization that Mr.

Trump’s speech was clearly within the bounds the protections afforded by the First Amendment,

the House Managers attempt to erect artificial roadblocks to prevent the Senate from even

considering First Amendment principles in these impeachment proceedings. These efforts – as

fully discussed below – are complete sophistry that should be rejected by the Senators, who are

duty bound to consider and apply the First Amendment.

1. The Senate Cannot Disregard the First Amendment and the Supreme
Court’s Long-Established Free Speech Jurisprudence

The House Managers’ Trial Memorandum expressly advocates for the Senate to disregard

First Amendment principles, stating “the First Amendment does not apply at all to an impeachment

proceeding.”95 In doing so, the House Managers shockingly invite Senators to violate their own

oaths to uphold the Constitution and the bedrock principle—established over two hundred years

ago—that the Supreme Court is the final arbiter of whether Congressional acts are consistent with

the Constitution.96 There is no actual precedent for this confounding precept offered in the House

Managers’ Brief—the Managers astonishingly cite to a few recent internet blogs.97

The First Amendment is widely understood as prohibiting Congress from “abridging the

freedom of speech; or the right of people peaceably to assemble” in all aspects of state action in

94
Miranda Devine, Facebook’s squad of though police: Devine,
https://nypost.com/2021/01/31/facebooks-squad-of-thought-police-devine/; see also Tammy Bruce, The
new thought police: Inside the left's assault on free speech and free minds (Crown, 2010).
95
House Trial Memo. at 45.
96
Marbury v. Madison, 5 U.S. 137 (1803) (“It is emphatically the province and duty of the
Judicial Department to say what the law is.”)
97
Mem. of U.S. House of Rep. at 45 n.201.

38
all three branches of government.98 Congress may not take action that would “abridge the freedom

of speech.” Indeed, Senators take an Oath of Office, which includes an oath to “support and defend

the Constitution of the United States . . . .”99 The Constitution, of course, includes the Bill of

Rights, including the First Amendment. This means, inevitably, that Senators cannot do what the

House Managers urge: the Senate cannot blithely cast aside the First Amendment and the Supreme

Court’s long-established Free Speech jurisprudence when passing judgment on articles of

impeachment.

The Constitution must, at a minimum, serve as a limitation on the ability of Congress to

impeach for “high crimes and misdemeanors.” As noted by a Constitutional scholar a few years

ago, if that were not the case, there would be a host of internal contradictions within the

Constitution that could not have been intended by the Framers:

Additional negative restrictions would also extend from the panoply

of protections in the Bill of Rights. For example, an officer could
not be removed from office for refusing to self-incriminate (Fifth
Amendment) or seeking the assistance of counsel in a criminal
prosecution (Sixth Amendment). Whatever “high crimes and
Misdemeanors” means, it cannot include conduct that is itself
protected by the Constitution; such would be an internal
contradiction. Or, to frame it in modern doctrine, it would amount

98
While the First Amendment explicitly states that “Congress shall make no laws” abridging freedom
of speech or of the press, by settled tradition it “has been read to apply to the entire national government.”
U.S. Constitution, 1st Am.; Gerald Gunther, Constitutional Law, Cases and Materials 462 (10th ed. 1982);
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,
511 (1982) (Brennan, J. dissenting on other grounds) (“The First Amendment binds the Government as a
whole, regardless of which branch is at work in a particular instance.”); Richmond Newspapers, 448 U.S.
at 575 (“The First Amendment . . . prohibits governments from ‘abridging the freedom of speech, or of the
press.”); Smith v. California, 361 U.S. 147, 157 (1960) (Black, J., concurring) (“The First Amendment . . .
fixed its own value on freedom of speech and press by putting these freedoms wholly ‘beyond the reach’
of federal power to abridge.”).
99
U.S. Senate Website, Oath of Office,
https://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm

39
 to an unconstitutional condition: punishing a person for exercising a
right protected by the Constitution.100

The position advanced by the House Managers is essentially an impeachment standard

without Constitutional guardrails, unmoored to any specific legal test other than the unbridled

whims of the House Managers. That distinctly was not what the Framers intended when they

expressly limited impeachable offenses to “high crimes and misdemeanors.” The Framers of the

Constitution were keenly aware of the danger of any impeachment process that would make the

President “the mere creature of the Legislature.”101 Such an arrangement would constitute nothing

less than “a violation of the fundamental principle of good Government.”102

Founding Father James Wilson, who was a renowned legal scholar, served as one of the

six initial Supreme Court Justices (1789-1798), and was a major force in drafting the

Constitution,103 plainly stated in his law lectures that lawful and constitutional conduct may not be

used as an impeachable offense:

The doctrine of impeachments is of high import in the constitutions

of free states. On one hand, the most powerful magistrates should
be amenable to the law: on the other hand, elevated characters
should not be sacrificed merely on account of their elevation. No

100
Josh Blackman, Obstruction of Justice and the Presidency: Part II, Lawfare (Dec. 12,
2017)(emphasis original), https://www.lawfareblog.com/obstruction-justice-and-presidency-part-i.
101
2 Records of the Federal Convention of 1787, at 86 (Max Farrand ed., rev. ed. 1937).
102
Id.

103
“James Wilson (September 14, 1742 – August 21, 1798) was an American statesmen, politician,
legal scholar, and Founding Father who served as an Associate Justice of the United States Supreme
Court from 1789 to 1798. He was elected twice to the Continental Congress, was a signatory of the United
States Declaration of Independence, and was a major force in drafting the United States Constitution. A
leading legal theorist, he was one of the six original justices appointed by George Washington to
the Supreme Court of the United States. In his capacity as first Professor of Law at the University of
Pennsylvania, he taught the first course on the new Constitution to President Washington and his cabinet
in 1789 and 1790.” https://en.wikipedia.org/wiki/James_Wilson_(founding_father)
40
 one should be secure while he violates the constitution and the laws:
everyone should be secure while he observes them.104

The House Managers’ suggestion that the First Amendment does not apply to this

impeachment process is untenable. It conflicts with common sense, the Senators’ Oath of Office,

well-settled Supreme Court precedent, and the intent of the Framers of the Constitution, such as

James Wilson, who not only was a draftsman of the Constitution, but taught the first course on the

new Constitution to President Washington and his cabinet in Philadelphia at the University of

Pennsylvania in 1789. The Senate should soundly reject the Managers’ invitation to disregard the

Constitution.

2. Mr. Trump as an Elected Official Has First Amendment Rights to

Freely Engage in Political Speech
Another roadblock the House Managers use is the legally unsupported idea that because

Mr. Trump was an elected official, specifically the President, he has fewer rights under the First

Amendment than everyone else in the United States. This, too, is sophistry. The opposite is true.

The Supreme Court of the United States has long held that the First Amendment’s right to freedom

of speech protects elected officials such as Mr. Trump. The House Managers’ argument to the

contrary both ignores well-established precedent and erodes the constitutional principles guiding

this august body. In fact, the argument of the House Managers so materially omits the relevant

constitutional precepts that an extended discussion becomes both necessary and warranted,

particularly in light of the public commentary relied upon in the House Trial Memorandum.

There can be no dispute that elected public officials engage in protected free speech when

they speak out on investigations of voting regularity and fairness. The Supreme Court held that

an elected sheriff who spoke out on an investigation of voting patterns, and even communicated

104
Collected Works of James Wilson, Vol. 2 at 861 (Hall Kermit ed., 2007).
41
with a sitting grand jury via open letter, was protected by the First Amendment from punitive

action by another group of “elected officers” for “publishing views honestly held and contrary to

those” advocated by his accusers in the other political party.105 Justice Brennan, writing for the

majority in Wood v. Georgia, went so far as to make the protection of an elected public official a

core First Amendment principle because the voting controversy at issue directly affected the

sheriff’s political career:

The petitioner was an elected official and had the right to enter the
field of political controversy, particularly where his political life was
at stake. The role that elected officials play in our society makes it
all the more imperative that they be allowed freely to express
themselves on matters of current public importance.106

To paraphrase Wood, if Mr. Trump could be silenced in this manner by Congress, the

Constitutional problem becomes evident: 107 a difference of political opinion, expressed in speech,

on an issue of voting irregularity cannot be punishable where all that was done was to encourage

investigation of voting irregularities and peaceful political speech.108

If Wood alone was not dispositive of Mr. Trump’s free speech rights as an elected official

to address public controversies such as voting irregularities and the authority of officials certifying

votes, the Supreme Court emphatically held shortly after Wood that a legislature cannot punish an

elected official for protected political speech. Bond v. Floyd squarely addresses the question of an

105
Wood v. Georgia, 370 U.S. 375, 390–91, 394-95 (1962).
106
Wood, 370 U.S. at 394-95 (citation and footnote omitted).
107
Id. at 390-91.
108
“I know that everyone here will soon be marching over to the Capitol building to peacefully
and patriotically make your voices heard.” Transcript of January 6, 2021 Speech at approximately 18:16,
available at https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-
january-6.

42
elected official’s punishment by a legislature for statements alleged to have incited public violation

of the law, unequivocally rejecting the idea that an elected official is entitled to lesser, or no,

protection under the First Amendment. When the state argued “that even though such a citizen

might be protected by his First Amendment rights, the State may nonetheless apply a stricter

standard to its legislators[,]” the Supreme Court responded tersely, “We do not agree[,]” and held

the action of the legislature against the elected official unconstitutional and in violation of his First

Amendment rights.109

The Bond case is particularly instructive, because the petitioner opposed the Vietnam war

draft, and was accused of endorsing the burning of draft cards—a position he subsequently

clarified, noting that he possessed his own draft card and did not support burning draft cards.110

As punishment for articulating this position in theoretical conflict with federal law, the Georgia

House of Representatives to which he was elected refused to seat him—a purely legislative action,

like impeachment.111 Based in part upon Bond’s subsequent clarification that he did not urge

anyone to burn draft cards, the Supreme Court first concluded that Bond “could not have been

constitutionally convicted under 50 U.S.C. App. s 462(a), which punishes any person who

‘counsels, aids, or abets another to refuse or evade registration.’”112

Going further, the Supreme Court held that the Georgia House of Representatives was in

fact forbidden by the First Amendment from punishing Bond for advocating against the policy of

the United States. It began by once again rejecting outright the argument that an elected official

109
Bond v. Floyd, 385 U.S. 116, 132–33 (1966).
110
Bond, 385 U.S. at 118-25 (“I have not counselled burning draft cards, nor have I burned mine.”)

111
Id. at 125.
112
Id. at 133-34.

43
could be held to any “higher standard” or that the Georgia House could “limit[] its legislators’

capacity to discuss their views of local or national policy.”113 Justice Brennan, once again writing

for the majority, went on to reaffirm the Constitutional shield around the speech of elected

officials, even extending it to statements deemed “erroneous:”

The manifest function of the First Amendment in a representative

government requires that legislators be given the widest latitude to
express their views on issues of policy. The central commitment of
the First Amendment, as summarized in the opinion of the Court in
New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721,
11 L.Ed.2d 686 (1964), is that ‘debate on public issues should be
uninhibited, robust, and wide-open.’ We think the rationale of the
New York Times case disposes of the claim that Bond's statements
fell outside the range of constitutional protection. Just as erroneous
statements must be protected to give freedom of expression the
breathing space it needs to survive, so statements criticizing public
policy and the implementation of it must be similarly protected. The
State argues that the New York Times principle should not be
extended to statements by a legislator because the policy of
encouraging free debate about governmental operations only applies
to the citizen-critic of his government. We find no support for this
distinction in the New York Times case or in any other decision of
this Court. The interest of the public in hearing all sides of a public
issue is hardly advanced by extending more protection to citizen-
critics than to legislators. Legislators have an obligation to take
positions on controversial political questions so that their
constituents can be fully informed by them, and be better able to
assess their qualifications for office; also so they may be represented
in governmental debates by the person they have elected to represent
them.114

Mr. Trump’s statements and advocacy of his political opinions—abhorred by the

opponents of freedom of speech in the House as they may be—is no less protected than Bond’s

speech. Mr. Trump, having been elected nationally, was elected to be the voice for his national

113
Id. at 135.
114
Id. at 135-37.

44
constituency. It is undeniable that the First Amendment’s protections flow to him as an elected

official where he was, as Wood, addressing the electoral integrity issues essential to his career that

he has consistently advocated, a position unpopular with his political opponents. Furthermore, as

Mr. Trump expressly urged rally participants “to peacefully and patriotically make your voices

heard”115 on January 6, 2021, his political speech falls squarely within the protections of the First

Amendment under clear Supreme Court precedent (as fully discussed below), and he thus cannot

be convicted by a Senate sworn to uphold the Constitution.

Contrary to these express holdings of the Supreme Court, as announced more than fifty

years ago, the House Managers assert in their memorandum that “the First Amendment does not

shield public officials who occupy sensitive policymaking positions from adverse actions when

their speech undermines important government interests.”116 In making this spurious claim, the

Managers rely on two cases concerning appointed public employees,117 having inexplicably failed

to bring to the Senate’s attention the squarely and obviously on-point Supreme Court authority

concerning elected public officials (discussed at length supra).

The House Manager’s two cases, however, address the wholly different situation of public

defenders and sheriff’s office employees suffering unconstitutional dismissals based on party

affiliation. Those individuals were protected from employment termination—not impeachment—

because they were not policy-makers or possessors of confidential information, and thus, their

115
Transcript of January 6, 2021 Speech at approximately 18:16, available at
https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-january-6.
116
House Trial Memo. at 46.
117
Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976).

45
“private political beliefs” could not interfere with their duties.118 Such cases cannot serve as the

basis for a First Amendment analysis of Mr. Trump, or in fact any president, because elected

officials are different in kind from non-elected public employees under the First Amendment.

The Supreme Court, in fact, expressly rejected the House Managers’ First Amendment

argument when confronting the voting investigation speech at issue in Wood.119 Justice Brennan

examined the line of cases addressing termination of non-elected public employees and found it

inapplicable to the case of the elected sheriff:

Petitioner was not a civil servant, but an elected official, and hence
this is not a case like United Public Workers v. Mitchell, 330 U.S.
75, 67 S.Ct. 556, 91 L.Ed. 754, in which this Court held that
congress has the power to circumscribe the political activities of
federal employees in the career public service.

As Mitchell was the case relied upon in Elrod120 and Branti,121 and its factual predicate was

expressly rejected as a basis for evaluation of an elected public official’s First Amendment rights

in Wood, the House Managers have built their case against the First Amendment upon the

proverbial foundation of sand, and have no support for their argument that Mr. Trump lacks

protection under the First Amendment as all Supreme Court authority is directly contrary to their

assertions.

118
Branti, 445 U.S. at 517 (synthesizing rule in Elrod).
119
Wood, 370 U.S. at 395 n.21.
120
427 U.S. at 357, 362, 366-70.
121
445 U.S. at 515 n.10.

46
 3. Mr. Trump’s Speech Was Fully Protected by the First Amendment

Mr. Trump engaged in constitutionally protected political speech that the House has,

improperly, characterized as “incitement of insurrection.” The attempt of the House to transmute

Mr. Trump’s speech—core free speech under the First Amendment—into an impeachable offense

cannot be supported, and convicting him would violate the very Constitution the Senate swears to

uphold.

House Resolution 24 contains only one article of impeachment: incitement of

insurrection.122 The allegations made i that article are that Mr. Trump engaged in speech of various

kinds concerning a public, political event: the Presidential election of November 2020.

Specifically, House Resolution 24 focuses upon Mr. Trump’s speech on January 6, 2021. 123 The

article also discusses in passing other “statements” of Mr. Trump as well as a telephone call to the

secretary of state of Georgia.124

The fatal flaw of the House’s arguments is that it seeks to mete out governmental

punishment – impeachment—based on political speech that falls squarely within broad protections

of the First Amendment. Speech and association for political purposes is the kind of activity to

which the First Amendment offers its strongest protection.125 Restrictions placed on freedom of

122
H. Res. 24 at 2, 117th Cong. (Jan. 11, 2021). The sole article of impeachment is framed
under the “high Crimes and Misdemeanors” clause of Article II, and does not allege treason or
bribery. U.S. CONST. art. II, § 4.
123
Id. at 2-3.
124
Id. at 2, 4.
125
New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)(The First Amendment “’was fashioned
to assure unfettered interchange of ideas for the bringing about of political and social changes desired by
the people.’” (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).
47
speech are evaluated “against the background of a profound national commitment to the principle

that debate on public issues should be uninhibited, robust, and wide open, and that it may well

include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public

officials.”126 Thus, “[o]ur First Amendment decisions have created a rough hierarchy in the

constitutional protection of speech” in which “[c]ore political speech occupies the highest, most

protected position.”127

The Supreme Court has further acknowledged that “[t]he language of the political arena . .

. is often vituperative, abusive, and inexact.”128 A rule of law permitting criminal or civil liability

to be imposed upon those who speak or write on public issues and their superintendence would

lead to “self-censorship” by all which would not be relieved by permitting a defense of truth.

“Under such a rule, would-be critics of official conduct may be deterred from voicing their

criticism, even though it is believed to be true and even though it is in fact true, because of doubt

whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus

dampens the vigor and limits the variety of public debate.”129 In only a few well defined and

126
Watts v. United States, 394 U.S. 705, 708 (1969) (quoting New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)).
127
R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992( Stevens, J., concurring); see also Hill v. Colorado, 530
U.S. 703, 787 (2000)(Kennedy, J., dissenting)(“Laws punishing speech which protests the lawfulness or
morality of the government’s own policy are the essence of the tyrannical power the First Amendment
guards against.”); Citizens United v. Federal Election Comm’n, 588 U.S. 310, 349 (2010)(“If the First
Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens,
for simply engaging in political speech.”)

128
Watts, 394 U.S. at 708 (distinguishing between “political hyperbole” and “true threats”)
(citing Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, (1966)).
129
New York Times, 376 U.S. at 279.

48
narrowly limited classes of speech may the government punish an individual for his or her

words.130

Even political speech that may incite unlawful conduct is protected from the reach of

governmental punishment. Indeed, “[e]very idea is an incitement,’ and if speech may be

suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State’s

censorial power.”131 The government may not prohibit speech because it increases the chance an

unlawful act will be committed “at some indefinite future time.”132 Rather, the government may

only suppress speech for advocating the use of force or a violation of law if “such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or produce

such action.”133

In Brandenburg v. Ohio, the Supreme Court formed a test that placed even speech inciting

illegal conduct within the protection of the First Amendment.134 In that case, a leader of the Ku

Klux Klan was convicted under an Ohio criminal syndicalism law.135 Evidence of his incitement

was a film of the events at a Klan rally, which included racist and anti-Semitic speech, the burning

of a large wooden cross, and several items that appeared in the film, including a number of

130
Gooding v. Wilson, 405 U.S. 518, 521-22 (1972).
131
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 580, 121 S.Ct. 2404, 2435, 150 L.Ed.2d 532
(2001)(emphasis added)(quoting Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138
(1925)(Holmes, J., dissenting)).

132
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253–54 (2002)(quoting Hess v. Indiana, 414
U.S. 105, 108 (1973)(per curiam)).
133
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added) (per curiam).
134
395 U.S. at 447.
135
Id. at 445.

49
firearms.136 The leader of the protest proclaimed that “[w]e’re not a revengent [sic] organization,

but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian

race, it’s possible that there might be some revenge taken. We are marching on Congress July the

Fourth, four hundred thousand strong.”137 The Court held that, “the constitutional guarantees of

free speech and free press do not permit [the government] to forbid or proscribe advocacy of the

use of force or of law violation except where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such action.”138 The Court explained that

“the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and

violence, is not the same as preparing a group for violent action and steeling it to such action.139

Thus, under Brandenburg and its progeny, government actors may not “forbid or proscribe

advocacy of the use of force or of law violation except where such advocacy is directed to inciting

or producing imminent lawless action and is likely to incite or produce such action.”140 Absent an

imminent threat, therefore, it is expressly within the First Amendment to advocate for the use of

force; similarly, it is protected speech to advocate for violating the law; and as Mr. Trump did

neither of these things, his speech at all times fell well within First Amendment protections. He

thus cannot be subject to conviction by the Senate under well-established First Amendment

jurisprudence.

136
Id. at 445-46.
137
Id. at 446.
138
Id.
139
Id. at 448.
140
Id.

50
 The article of impeachment cherry picks Mr. Trump’s phrases from an hour-long speech,

and indeed other speeches before other audiences, but even looked at through the lens of House

Resolution 24, the incitement alleged is sterile and thin. The House’s case for “incitement” simply

fails to pass constitutional muster.

First, Mr. Trump unambiguously advocated to the crowd at the January 6, 2021 event that

he expected peaceful behavior. He explicitly stated, “I know that everyone here will soon be

marching over to the Capitol building to peacefully and patriotically make your voices heard.”141

Indeed, after reports of violence at the Capitol Mr. Trump issued a public video statement, urging

the crowd at the Capitol to “go home” in “peace” and further pleading:

we have to have peace, we have to have law and order, we have to

respect our great people in law and order, we don’t want anyone
hurt. . .142

Mr. Trump’s explicit disavowal of violence and calls for peace – both directly before and

after the riot – and his urge to have the participants use their “voices” as opposed to other action

cannot be ignored. Given these express statements, and the fact that the First Amendment protects

elected public officials who disclaim violence or violations of the law,143 the inquiry need go no

further. Mr. Trump incited no insurrection, and his speech as a whole (despite all of the rhetoric

141
Transcript of January 6, 2021 Speech at approximately 18:16 (emphasis added), available at
https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-
january-6.

142
Video Starting at :22, located at https://www.c-span.org/video/?507774-1/president-
trump-claims-election-stolen-tells-protesters-leave-capitol.
143
Bond, 385 U.S. at 125, 133-34 (“I have not counselled burning draft cards, nor have I
burned mine.”).

51
in House Resolution 24) cannot support a conviction because the First Amendment protected him

at all times from government retribution.

Second, the House’s heavy reliance on Mr. Trump’s metaphorical “fighting” language is

completely devoid of context, which, when considered as a whole, places Mr. Trump’s speech

entirely within the protection of the First Amendment. The thrust of the House’s allegation against

Mr. Trump is that he said, in the context of election security generally, that “if you don’t fight like

hell you’re not going to have a country anymore.”144 To characterize this statement alone as

“incitement to insurrection” is to ignore, wholesale, the remainder of Mr. Trump’s speech that day,

including his call for his supporters to “peacefully” making their “voices heard.”

What is more, a closer examination of the text of Mr. Trump’s speech reveals he makes

references to “fighting” in a plainly figurative sense. For example, the metaphor of boxing

permeated Mr. Trump’s speech. He expressly referred to the sport in his speech, associating it

with the word “fighting:” “Republicans are constantly fighting like a boxer with his hands tied

behind his back. It’s like a boxer[.]”145 The House cannot seriously argue that Mr. Trump’s use

of the word “fighting” in this speech incited an insurrection, given this usage; it is not merely

couched in the language of simile (“like”) but it describes a position of physical disadvantage; it

is far from a prescription for future violent action.

Mr. Trump used the word “fights” in the figurative sense of arguing, or putting forth an

extreme effort, just as he did a short time later, speaking of Rep. Jordan:

144
H. Res. 24 at 3, 117th Cong. (Jan. 11, 2021).
145
Transcript of January 6, 2021 Speech at approximately 16:25 (emphasis added).

52
 There’s so many weak Republicans. We have great ones, Jim
Jordan, and some of these guys. They’re out there fighting the
House. Guys are fighting, but it’s incredible.146

Mr. Trump again used the word “fighting,” but Rep. Jordan was not punching any of his fellow

representatives. Mr. Trump referred to Rep. Jordan’s advocacy efforts. This is entirely consistent

with yet another use of the word, in reference to action at the ballot box, not violence:

Unbelievable, what we have to go through, what we have to go

through and you have to get your people to fight. If they don’t fight,
we have to primary the hell out of the ones that don’t fight. You
primary them. We’re going to let you know who they are. I can
already tell you, frankly.147

Again, Mr. Trump used the word “fight” in the sense of forceful argument, and combined it with

a plainly nonviolent request: he sought a change in the occupants of Congress through future

primary elections, not through violence.

None of this constituted anything from which a conviction may follow: Mr. Trump’s

speech on January 6, 2021 was protected political speech, that which receives the strongest

protection under the First Amendment, when the protections of free speech are at their highest.148

In fact, under Brandenburg, there is no doubt that the words upon which the article of impeachment

issued could never support a conviction, as there was plainly no advocacy of “lawless action” and

the words, as stated, can hardly be interpreted to be “likely” to “incite imminent” violence or

lawless action.

146
Id. at approximately 12:34 (emphasis added).
147
Id. at approximately 13:45 (emphasis added).
148
Arizona Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011).

53
 Neither can the other allegations in the article of impeachment support a conviction given

Mr. Trump’s plain and clear First Amendment protection. The allegations of other “statements”

alleged to contribute to an “incitement of insurrection”149 are bereft of detail, and even as expanded

upon in the House Managers’ Trial Memorandum, amount to no more than Mr. Trump’s

advocating his position that he won the Presidential election in November 2020.

The allegation that Mr. Trump should be convicted for “incitement of insurrection” based

upon the telephone call to the Georgia secretary of state rests on even shakier ground. The

allegations of “threats of death and violence” come not from Mr. Trump at all; they come from

other individuals from the internet, not identified (nor identifiable) in the House Trial

Memorandum, who took it upon themselves to make inane internet threats, which were not urged

or “incited” by Mr. Trump in any way shape or form.150 Examining the discussion with the

Georgia secretary of state under the standard of “incitement,” leads to the same conclusion as the

January 6, 2021 statements of Mr. Trump: there is nothing said by Mr. Trump that urges “use of

force” or “law violation” directed to producing imminent lawless action.151

Even the House Managers’ sinister and selective summary of Mr. Trumps’ call cannot meet

the standard for “incitement:” the analysis of the Supreme Court in Hess v. Indiana makes this

apparent.152 The question is not, as the House Managers seek to frame it, whether Mr. Trump’s

call offends the House’s sensibilities; it is whether the call—which is plainly political speech in

149
H. Res. 24 at 3, 117th Cong. (Jan. 11, 2021).
150
House Trial Memo. at 9-10.
151
Brandenburg, 395 U.S. at 447.
152
414 U.S. 105, 107-10 (1973).

54
the sense that Woods concerns political speech, no different than the sheriff’s letter to the grand

jurors153—is outside the First Amendment based on the limited classes of speech beyond its

ambit.154 Mr. Trump’s call was not obscene, nor did it contain fighting words, nor incitement: it

was a political call, and such political speech must receive the highest protection afforded under

the First Amendment.

The events of January 6, 2021, at the Capitol were terrible. The loss of life of any citizen,

let alone a member of the Capitol Police, is a tragedy, but impeaching a former President is not the

answer. The Senate should vote to clear Mr. Trump of any wrongdoing: “the hostile reaction of a

crowd does not transform protected speech into incitement.”155 What matters is the objective

meaning of the words. Courts do not deem speech unprotected based on how it could possibly be

contorted or misunderstood by an unreasonable listener. Rather, they engage in an objective

inquiry to determine how a reasonable person would understand the words. Otherwise, speakers

at public events would be put at the mercy of the unhinged reactions of their most unreasonable

audience members. That is exactly what happened on January 6th, but the Senate, composed of

reasonable and erudite members, can take a few minutes and read the speech themselves.

In Brandenburg, the Supreme Court erected an extremely high bar to proving incitement.156

That test requires proof that “(1) the speech explicitly or implicitly encouraged the use of violence

or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless

153
Wood, 370 U.S. at 390–91, 394-95.
154
Hess, 414 U.S. at 107-08.
155
Bible Believers v. Wayne Co., 805 F.3d 228, 246 (6th Cir. 2015).
156
James v. Meow Media, Inc., 300 F.3d 683, 698 (6th Cir. 2002) (en banc).

55
action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”157

The allegations against Mr. Trump unquestionably fail as a matter of law because “[a]dvocacy for

the use of force or lawless behavior, intent, and imminence, are all absent.” 158Thus, “[t]he doctrine

of incitement has absolutely no application” to this case. 159

First, as evident from the transcript and the video of the speech in question, Mr. Trump's

statements did not advocate—or even mention—the use of any force whatsoever. Because “[t]he

mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,”160 it

is all the more true that a statement that “fails to specifically advocate” for the crowd “to take ‘any

action’ cannot constitute incitement.”161 Indeed, Mr. Trump expressly made a specific demand in

his speech that all members of the audience - all protestors - behave “peacefully.”

As the Sixth Circuit has recognized, “[i]t is not an easy task to find that speech rises to

such a dangerous level that it can be deemed incitement to riot.”162 And unsurprisingly, “[t]here

will rarely be enough evidence to create a jury question on whether a speaker was intending to

incite imminent crime.”163 Consider Hess v. Indiana, where a protester yelled, “We'll take the

fucking street again,” to a crowd that was already agitated and resisting police.164 The Court held

157
Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 246 (6th Cir. 2015).
158
Id. at 244.
159
Id.
160
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002).
161
Bible Believers, 805 F.3d at 244 (quoting Hess v. Indiana, 414 U.S. 105, 109 (1973)).
162
Id.
163
Eugene Volokh, Crime–Facilitating Speech, 57 STAN. L. REV. 1095, 1190 (2005).
164
414 U.S. at 107.

56
that speech could not be punished.165 Or take NAACP v. Claiborne Hardware Co., where a speaker

told a crowd that anyone who failed to boycott businesses would be “disciplined,” and said, “If we

catch any of you going in any of them racist stores, we're gonna break your damn neck.” 166 The

Court held that this speech was not incitement.167 If these incendiary statements, with express

references to violence, do not rise to the level of incitement, then surely Mr. Trump's request to

peacefully protest could never be incitement.

In Bible Believers, the Court held the speech did not amount to incitement to riot under the

Brandenburg test, despite the obviously explosive context, because it did not include “a single

word” that could be perceived as encouraging, explicitly or implicitly, violence or lawlessness.168

The same can be said of Mr. Trump's speech in this case: not a single word encouraged violence

or lawlessness, explicitly or implicitly, and again, he affirmatively exhorted the crowd to act

“peacefully” when protesting. Moreover, the Bible Believers court observed that “[t]he hostile

reaction of a crowd does not transform protected speech into incitement.”169 Even though the

Bible Believers' speech actually triggered a predictably violent reaction, it was their speech that

the court scrutinized. And their speech was held to be protected, despite its blatantly offensive

and even provocative nature and despite the crowd's reaction. It follows that if Mr. Trump's speech

is protected—because it, like that of the Bible Believers, did not include a single word encouraging

violence—then the fact that audience members reacted by using force does not transform Mr.

165
Id.
166
NAACP v. Claiborne Hardware Co, 458 U.S. 886, 902 (1982).
167
Id. at 928–29.
168
Id. at 246.
169
Id.

57
Trump's protected speech into unprotected speech. The reaction of listeners who may or may not

be hostile does not alter the otherwise protected nature of speech.170

Nor is “the mere tendency of speech to encourage unlawful acts ... sufficient reason for

banning it.”171 What is required, to forfeit constitutional protection, is incitement speech that

“specifically advocate[s]” for listeners to take unlawful action.172 Again, even assuming that then-

President Trump's words may arguably have had a tendency to encourage unlawful use of force

(which they did not), they certainly did not specifically advocate for listeners to take unlawful

action and are therefore protected. As the Bible Believers court further observed, “[i]t is not an

easy task to find that speech rises to such a dangerous level that it can be deemed incitement to

riot.”173 The words alleged in the current case, much less offensive than those of the Bible

Believers, are not up to the high standard demanded by Brandenburg.

Because not a single word of the speech actually advocates violence either implicitly or

explicitly, the first Brandenburg factor—specific advocacy of violence— is totally absent. The

allegations in the Article seems to place heavy reliance on the latter two Brandenburg factors.

That is, the allegations that Mr. Trump intended violence to occur and knew that his words were

likely to result in violence. But this backwards approach was specifically rejected in Hess v.

Indiana, where the Court reversed the judgment of the Indiana Supreme Court.174 In Hess, the

Court noted that the state court had placed primary reliance on evidence that the speaker's

170
Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992).
171
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).
172
Id. (citing Hess, 414 U.S. at 109.
173
Id. at 244.
174
Hess v. Indiana 414 U.S. at 107–09.
58
statement was intended to incite further lawless action and was likely to produce such action. This

was not enough. The Hess Court focused on the words, on the language, that comprised the subject

speech, i.e., the first Brandenburg factor. “It hardly needs repeating,” the Court repeated, “that the

constitutional guarantees of freedom of speech forbid the States to punish the use of words or

language not within narrowly limited classes of speech.”175 And in applying this wisdom, the Court

likewise tied its conclusion to the words of the subject speech: “And since there was no evidence

or rational inference from the import of the language, that his words were intended to produce, and

likely to produce, imminent disorder, those words could not be punished by the State on the ground

that they had ‘a tendency to lead to violence.’”176

In other words, Hess teaches that the speaker's intent to encourage violence (second factor)

and the tendency of his statement to result in violence (third factor) are not enough to forfeit First

Amendment protection unless the words used specifically advocated the use of violence, whether

explicitly or implicitly (first factor).

In Snyder v. Phelps, the Court observed: “[T]he court is obligated to make an independent

examination of the whole record in order to make sure that the judgment does not constitute a

forbidden intrusion on the field of free expression. In considering content, form, and context, no

factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including

what was said, where it was said, and how it was said.”177 So, yes, in addition to the content and

form of the words, the Senate is obliged to consider the context, based on the whole record. (But

not instead of it.)

175
Id. at 107 (quoting Gooding v. Wilson, 405 U.S. 518, 521–22 (1972) ) (internal quotation marks
omitted; emphasis added).
176
Id. at 109 (quoting the Indiana court's rationale) (emphasis added).
177
Snyder v. Phelps, 562 U.S. 443, 453 – 54 (2011) (internal quotation marks and citations omitted).
59
 Here, of course, the “whole record” consists of the charges in the Article. An article of

impeachment is literally a “charge” of particular wrongdoing. Thus, under the division of

responsibility in the Constitution, the Senate must conduct a trial solely on the charge specified in

articles of impeachment approved by a vote of the House and presented to the Senate. The Senate

cannot expand the scope of a trial to consider mere assertions appearing in biased media reports

that the House did not include in the articles of impeachment submitted to a vote of that Chamber,

nor even in the unsupported statements in the House Managers’ Trial Memorandum. Similarly,

House Managers trying the case in the Senate must be confined to the specific conduct alleged in

the Articles approved by the House. These restrictions follow both from the plain terms of the

Constitution limiting the Senate to trying an “impeachment” framed by the House and from

elementary principles of due process. “[T]he senator’s role is solely one of acting on the

accusations (Articles of Impeachment) voted by the House of Representatives. The Senate cannot

lawfully find the president guilty of something not charged by the House, any more than a trial

jury can find a defendant guilty of something not charged in the indictment.” “No principle of

procedural due process is more clearly established than that notice of the specific charge, and a

chance to be heard in a trial of the issues raised by that charge, if desired, are among the

constitutional rights of every accused.”178

As the Supreme Court has explained, it has been the rule for over 130 years that “a court

cannot permit a defendant to be tried on charges that are not made in the indictment against him.”179

178
Cole v. Arkansas, 333 U.S. 196, 201 (1948).
179
Stirone v. United States, 361 U.S. 212, 217 (1960).

60
Doing so is “fatal error.”180 Under the same principles of due process, the Senate must similarly

refuse to consider any uncharged allegations as a basis for conviction.

In its examination of context, the Snyder Court held that because the speech was protected,

its setting, or context, could not render it unprotected.181 In fact, Mr. Trump's admonition not to

harm is analogous to the circumstance considered in Bible Believers as neutralizing the inciting

tendency of words that were even more offensive in nature and delivered in an even more volatile

context.

Even taking every one of Mr. Trump’s prior statements about the election in the most

negative light, they were, at most, only abstract discussions that never advocated for physical force.

And even if they had broached the idea of violence, “the mere abstract teaching … of the moral

propriety or even moral necessity for a resort to force and violence, is not the same as preparing a

group for violent action and steeling it to such action.”182 Indeed there had never been violence

before and so there was thus no reason to expect that Mr. Trump's statements would lead to any

injury to the officers or protesters. Moreover, even, assuming arguendo, if one could posit that the

likely response to that statement would have been “imminent lawless action,”183 Mr. Trump

corrected any such misunderstanding by immediately saying “Stay Peaceful!”

The fact that some small percentage of unlawful rioters who, as the FBI already knew in

advance, had been planning to come and wage war, did so later that same day, does not in any way

mean that they were acting at Mr. Trump’s direction or through any “incitement” from Mr. Trump.

180
Id.
181
Snyder, 562 U.S. at 454–55.
182
Noto v. United States, 367 U.S. 290, 298 (1961).
183
Brandenburg, 395 U.S. at 447.

61
In the context of ordinary civil litigation, such a “bald” allegation of agency “is by itself a mere

legal conclusion and is therefore insufficient to withstand a motion to dismiss.”184 “A complaint

relying on agency must plead facts which, if proved, could establish the existence of an agency

relationship. It is insufficient to merely plead the legal conclusion of agency.”185 “Neither a single

incident nor sporadic incidents are sufficient to establish foreseeability.”186

For First Amendment purposes, the meaning of words must be judged objectively.

Unprotected speech is the exception to the rule of free speech, so it cannot be punished on the

ground that it might be unprotected. The speech must objectively fall within the narrow exception

for unprotected speech, lest protected speech be penalized based on a subjective or idiosyncratic

interpretation.187 Courts “weigh the circumstances in order to protect, not to destroy, freedom of

speech.”188 “[I]f the freedoms of expression are to have the breathing space that they need to

survive,”189 courts must “err on the side of protecting political speech.”190 Here, the question is

not even close. Mr. Trump’s words are core speech protected under the First Amendment.

184
Prochaska & Associates, Inc. v. Merrill Lynch Pierce Fenner & Smith, Inc., 798 F.Supp. 1427,
1433 (D. Neb. 1992).
185
Bird v. Delacruz, 2005 WL 1625303, at *4 (S.D. Ohio July 6, 2005); see also Nuevo Mundo
Holdings v. PriceWaterhouseCoopers LLP, 2004 WL 112948, at *6 (S.D.N.Y. 2004).
186
Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054, 1058 (E.D. Ky. 1995), aff'd sub nom., 89
F.3d 833 (6th Cir. 1996).
187
See Claiborne, 458 U.S. at 915 n.50.
188
Cox v. Louisiana, 379 U.S. 536, 578 (1965) (Black, J, concurring); Bible Believers, 805 F.3d at 234
(“We interpret the First Amendment broadly so as to favor allowing more speech.”).
189
New York Times Co. ,376 U.S. at 271-72.
190
FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 457 (2007).
62
 4. Lastly, Mr. Trump’s Figurative Use of the Words “Fight,” “Fighting,”
Have Been Used By Many, None Are Impeachable

It is truly incredible that House Democratic leadership is feigning horror at the President’s

choices of words considering some of their own members recent public comments. For example,

in 2018, Speaker Nancy Pelosi held her weekly press conference in the Capitol Visitor Center. In

reference to a policy she disagreed with, the most powerful Democrat in the Country said: “I just

don’t even know why there aren’t uprisings all over the country. Maybe there will be.”191 Was she

advocating violence? Sending a silent dog whistle to radical protesters? Should she be held

accountable for her extremist rhetoric and removed from office?

As political violence grew last summer, Representative Ayana Pressley went on national

TV and said that “there needs to be unrest in the streets.” Should we hold her liable to pay for all

of the businesses that were destroyed when people heeded her call and removed from office ?192

In perhaps the most egregious call for physical confrontation, Rep Maxine Waters told a

crowd at a rally that they should accost members of the government that they do not like.

You think we’re rallying now? You ain’t seen nothing yet…Already
you have members of your Cabinet that are being booed out of
restaurants ... protesters taking up at their house saying ‘no peace,
no sleep…If you see anybody from that Cabinet in a restaurant, in a
department store, at a gasoline station, you get out and you create a
crowd and you push back on them and you tell them they’re not
welcome anymore, anywhere… We want history to record that we
stood up, that we pushed back, that we fought…

191
Douglas Ernst, Nancy Pelosi wonders why there ‘aren’t uprisings’ across nation: ‘Maybe there
will be,’ The Washington Times (Jun. 14, 2018),
https://www.washingtontimes.com/news/2018/jun/14/nancy-pelosi-wonders-why-there-arent-uprisings-
acr/
192
Am Joy, Post Office Cuts Are War Against American People Pressley Says, MSNBC (Aug. 15,
2020), https://www.msnbc.com/am-joy/watch/post-office-cuts-are-war-against-american-people-pressley-
says-90125893871

63
In another cable interview Waters was even more specific:

I have no sympathy for these people that are in this administration

… they won’t be able to go to a restaurant, they won’t be able to
stop at a gas station, they’re not going to be able to shop at a
department store. The people are going to turn on them. They’re
going to protest. They’re absolutely going to harass them…We’ve
got to push back.

In that instance, even Speaker Pelosi called Representative Waters’ remarks “unacceptable” but of

course did nothing to remove her from office, just like she has done nothing to censure other

Members who have tweeted calls for genocide193 – because when it is her side of the aisle making

their ‘political speech’ heard, Speaker Pelosi is nothing if not tolerant. Other Democratic

leadership went so far as to defend Representative Waters by bending over backwards to read an

inverted message of peacefulness into her violent statements – the exact opposite of what they did

to former President Trump. Giving her far more than the benefit of the doubt, Representative

Cedric Richmond claimed that “[i]n exercising her constitutional right to freedom of speech at a

recent rally, Congresswoman Waters did not, as she has made clear, encourage violence . . . She

instead, encouraged Americans to exercise their constitutional rights to freedom of speech and

peaceful assembly…” For those who would say that those quotes must be understood in their

greater context, i.e., that they were clearly meant to be political speech- we say exactly. The truth

is that both the Mr. Trump’s speech and these comments are acceptable political free speech; it is

the double standard at play here that is entirely unacceptable, and Mr. Trump ask that the Senate

reject it in no uncertain terms.

193
Aaron Bandler, Rashida Tlaib Retweets ‘From the River to the Sea’Tweet, Jewish Journal (Nov.
30, 2020), https://jewishjournal.com/news/325415/rashida-tlaib-retweets-from-the-river-to-the-sea-tweet/
64
 This is not the first time that Congress has impeached and tried to convict a President for

making a speech, and the last time did not work either. The tenth Article of Impeachment against

Andrew Johnson read as follows:

That said Andrew Johnson, President of the United States,

unmindful of the high duties of his office and the dignity and
proprieties thereof, and of the harmony and courtesies which ought
to exist and be maintained between the executive and legislative
branches of the government of the United States, designing and
intending to set aside the rightful authority and powers of Congress,
did attempt to bring into disgrace, ridicule, hatred, contempt and
reproach the Congress of the United States, and the several branches
thereof, to impair and destroy the regard and respect of all the good
people of the United States for the Congress and legislative power
thereof (which all officers of the government ought inviolably to
preserve and maintain,) and to excite the odium and resentment of
all the good people of the United States against Congress and the
laws by it duly and constitutionally enacted; and in pursuance of his
said design and intent, openly and publicly, and before divers
assemblages of the citizens of the United States convened in divers
parts thereof to meet and receive said Andrew Johnson as the Chief
Magistrate of the United States, did, ... make and deliver with a loud
voice certain intemperate, inflammatory[,] and scandalous
harangues, and did therein utter loud threats and bitter menaces as
well against Congress as the laws of the United States duly enacted
thereby, amid the cries[,] jeers[,] and laughter of the multitudes ...
Which said utterances, declarations, threats[,] and harangues, highly
censurable in any, are peculiarly indecent and unbecoming in the
Chief Magistrate of the United States[.

While no vote was ever taken on the tenth Article, multiple Senators expressed their

concern about trying to impeach for inflammatory rhetoric. James Patterson noted that “in view

of the liberty of speech which our laws authorize, in view of the culpable license of speech which

is practiced and allowed in other branches of the Government, I doubt if we can at present make

low and scurrilous speeches a ground of impeachment.”194 Senator Sherman echoed this view;

194
CONG. GLOBE, 40th Cong., 2d Sess. 509 (Supp. 1868); see also Shaw, Impeachable Speech, 70
Emory L.J. 1, 21.

65
while indicating his support for conviction on a number of the other articles, he voiced concerns

about the tenth article, arguing that “we must guard against making crimes out of mere political

differences or the abuse of the freedom of speech.”195

D. The House Afforded President Trump No Due Process of Law

On January 12th, Speaker Pelosi announced the nine representatives who would serve as

the impeachment managers. On January 13, 2021, mere days after the press conference purportedly

launching the inquiry, House Democrats completed the fastest presidential impeachment inquiry

in history and adopted the Article of Impeachment over strong opposition and with zero due

process of law afforded to the President, against Constitutional requirements and centuries of

practice. The lack of due process is no small matter; due process of law is not a formality it is a

195
Impeachable Speech, 70 Emory L.J. at 62:

There have also been recent suggestions that the invocation

of presidential speech in a trial setting raises First Amendment concerns.
Judge Kozinski made this claim in an opinion regarding one of the
challenges to President Trump's first “travel ban” executive order.
Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J.,
dissenting). Dissenting from the denial of rehearing en banc, Judge
Kozinski criticized the panel for citing “a trove of informal and unofficial
statements from the President and his advisers.” Id. This approach,
Kozinski warned, threatened to “chill campaign speech, despite the fact
that our most basic free speech principles have their ‘fullest and most
urgent application precisely to the conduct of campaigns for political
office.”’ Id. (citing McCutcheon v. FEC, 572 U.S. 185, 191-192 (2014)).
Given the near-constant campaigning in which an
incumbent president might engage, this argument could be extended to
virtually every statement a president makes--including in the context of
an impeachment inquiry.

See also Paul F. Campos, A Constitution for the Age of Demagogues: Using the Twenty-Fifth Amendment
to Remove an Unfit President, 97 Denv. L. Rev. 85, 100 (2019), noting that “Impeachment, in practice, has
become something intended solely to remove a corrupt president…”; and Bushnell, Eleanore. Crimes,
Follies, and Misfortunes: The Federal Impeachment Trials. University of Illinois Press, 1992, p. 6, noting
that “The impeachment procedure was designed to provide a means for removing a deficient officer, not to
punish for derelictions of duty or substitute for a court trial. Therefore, it might seem obvious that no action
need be taken when a suspect occupant removed himself from his position.”

66
key Constitutional right, and when it is lacking a case is tainted and the case should be dismissed.

In the civil context, the law is clear that a case should be dismissed if the government wrongfully

interfered with a defendant’s due process rights, and that “[a]t the core of procedural due process

jurisprudence is the right to advance notice of significant deprivations of liberty or property and to

a meaningful opportunity to be heard.” Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998).

As it relates to impeachment proceedings, the legal analog is clear:

The gravity of the deprivation at stake in an impeachment—

especially a presidential impeachment—buttresses the conclusion
that some due process limitations must apply. It would be
incompatible with the Framers’ understanding of the “delicacy and
magnitude of a trust which so deeply concerns the political
reputation and existence of every man engaged in the administration
of public affairs”196 to think that they envisioned a system in which
the House was free to devise any arbitrary or unfair mechanism it
wished for impeaching individuals. The Supreme Court has
described due process as “the protection of the individual against
arbitrary action.”197 There is no reason to think that protection was
not intended to extend to impeachments.198

And in terms of longstanding historical practice when it comes to those proceedings, the precedent

is also unambiguous:

Although constitutional requirements governing House

impeachment proceedings may have been unsettled when the
Constitution was adopted, by the 1870s consistent practice in the
House (unbroken since then) gave meaning to the Constitution and
settled the minimum procedures that must be afforded for a fair
impeachment inquiry. The Framers, who debated impeachment with
reference to the contemporaneous English impeachment of Warren

196
The Federalist No. 65, supra note at 397 (Alexander Hamilton).
197
Ohio Bell Tel. Co. v. Pub. Serv. Comm’n, 301 U.S. 292, 302 (1937).
198
Trial Memorandum of President Donald J. Trump (2020); Hastings v. United States, 802 F. Supp.
490, 504 (D.D.C. 1992), vacated and remanded on other grounds by Hastings v. United States, 988 F.2d
1280 (D.C. Cir. 1993) (per curiam).

67
 Hastings,199 knew that “the House of Commons did hear the
accused, and did permit him to produce testimony, before they voted
an impeachment against him.”200 And practice in the United States
rapidly established that the accused in an impeachment must be
allowed fair process. Although a few early impeachment
investigations were ex parte,201 the House provided the accused
with notice and an opportunity to be heard in the majority of cases
starting as early as 1818.202

Democratic Members of the House have argued that then-President Trump’s alleged offense was

so grave and his power so immense that there was no time to wait for the actual facts to come to

light. In a crocodile-tear-stained letter, Representative Ilhan Omar, herself no stranger to extremist

rhetoric,203 exhorted her colleagues by saying, “The urgency of this moment is real and we have

to be courageous and unified in defense of our Republic…Every single hour that Donald Trump

remains in office, our country, our democracy, and our national security remain in danger.

Congress must take immediate action to keep the people of this country safe and set a precedent

199
2 Records of the Federal Convention of 1787, at 550 (M. Farrand ed. 1966); see, e.g., Richard M.
Pious, Impeaching the President: The Intersection of Constitutional and Popular Law, 43 St. Louis L.J.
859, 872 (1999); see also, e.g., Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late
Secretary of War, on the Articles of Impeachment Exhibited by the House of Representatives, 44th Cong.
98 (1876) (statement of Sen. Timothy Howe); Scott S. Barker, An Overview of Presidential Impeachment,
47 Colo. Lawyer 30, 32 (Sept. 2018).
200
6 Reg. Deb. 737 (1830) (statement of Rep. James Buchanan).
201
See III Hinds’ Precedents § 2319, at 681 (Judge Pickering); id. § 2343, at 716 (Justice Chase).
202
See 32 Annals of Cong. 1715, 1715–16 (1818); see, e.g., III Hinds’ Precedents § 2491, at 988
(Judge Thurston, 1825); id. § 1736, at 97–98 (Vice President Calhoun, 1826); id. §§ 2365–2366 (Judge
Peck, 1830–1831); id. § 2491, at 989 (Judge Thurston, 1837); id. § 2495, at 994 & n.4 (Judge Watrous,
1852); Cong. Globe, 35th Cong., 1st Sess. 2167 (1858) (statement of Rep. Horace Clark) (Judge Watrous,
1858); III Hinds’ Precedents § 2496, at 999 (Judge Watrous, 1858); id. § 2504, at 1008 (Judge Delahay,
1873).
203
Sarah Elbeshbishi, Nicholas Wu, GOP targets Ihan Omar after Dems try to Oust Majorie Taylor
Green, USA Today (Feb. 4, 2021), https://www.usatoday.com/story/news/politics/2021/02/03/gop-targets-
ilhan-omar-after-dems-try-oust-marjorie-taylor-green/4369715001/ and Rep Andy Biggs, Twitter (Feb. 3,
2021, 9:02 AM), https://twitter.com/RepAndyBiggsAZ/status/1356966391493111808.
68
that such behavior cannot be tolerated.” Of course, President Trump’s term came to an end without

the apocalyptic predictions of the all-seeing Rep. Omar coming to pass.

As Speaker Pelosi told the country, she had to act now “so urgent was the matter.” So

urgent, of course, that instead of immediately sending it over to the Senate so that the President

could have a trial and, if convicted, be removed, the Speaker once again decided to act in a purely

political manner, pretending that she was rushing the impeachment to protect the country from an

imminent danger, and then waiting until the President was no longer in the White House to prefer

the charge. The House actually took longer t o transmit the Article of Impeachment to the Senate

than it did to investigate and debate it in the first place.

Of course, this is not the first time that Speaker Pelosi has ignored the Constitutional

protections in an impeachment proceeding. When they led the impeachment of then-President

Trump the first time, the Democratic leadership also denied him due process (although not as

brazenly and outrageously as this time) and the Speaker also refused to send the Articles of

Impeachment to the Senate right away. That time, her machinations were focused on trying to

influence the rules that the Senate would put in place for the trial, and she only sent the articles to
204
the Senate when it became clear that she would not get her way. But, just like this time, in

withholding the articles the Speaker undercut one of her party’s “primary arguments for

impeachment in the first place: the need for urgency in removing Trump.”205 As Democratic

204
John Hulsman, In the impeachment saga trump derangement syndrome is destroying the
Democrats, City A.M. (Jan. 20, 2020), https://www.cityam.com/in-the-impeachment-saga-trump-
derangement-syndrome-is-destroying-the-democrats/ (“Republican Senate majority leader Mitch
McConnell, as shrewd a tactician as Pelosi herself, had the speaker’s number, and he has been grimly clear
in response to the issue of Pelosi trying to leverage him: “We will not cede our (Senate) authority to try this
impeachment. The House Democrats’ turn is over.”)
205
Id.

69
senator and staunch Pelosi ally Dianne Feinstein put it: “‘The longer it goes on, the less urgent it

becomes. So if it’s serious and urgent, send them over. If it isn’t, don’t send it over.’”206

This time the Speaker apparently held the Articles over so that she could effectively,

maneuver an ally in the Senate into the judge’s chair. Once the 45th President’s term expired, and

the House chose to allow jurisdiction to lapse on the Article of Impeachment, the constitutional

mandate for the Chief Justice to preside at all impeachments involving the President disappears.

Now, instead of the Chief Justice, the trial will be overseen by a biased and partisan Senator who

will purportedly also act as a juror while ruling on issues that arise during trial.

The Senate, in reviewing the House actions, should immediately dismiss this case because

the process was completely unfair and one-sided. The civil analog is clear: “Every federal appellate

court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the

lower courts in a cause under review,' even though the parties are prepared to concede it.”207

Throughout this entire process Speaker Pelosi was never acting to apply her understanding

of the laws of impeachment in any principled manner. The Speaker did not think it was necessary

to call for an impeachment so long as she got her way, and twice told the Vice President, and the

country, just that. She did not really believe that the process was “urgent ” and it was never actually

about whether President Donald Trump would stay in office, because once she brought the

impeachment Article to a vote she decided to hold it until after he had finished the remainder of

his term. If the Speaker really believed that the President was that much of a danger, then she was

being criminally negligent by holding it back. Obviously, as demonstrated by her actions, there

206
Id.
207
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95, 118 S. Ct. 1003, 1013 (1998) (interior
quotation omitted).

70
was only ever one urgency, to score political points quickly before the harried Members of even

her own party could calm down and look at the facts. And there was only ever one motivation; to

try and spin this incredibly sad moment in American history, and use it to embarrass the President.

Unfortunately for House Democrats, the impeachment of a former United States President, a

private citizen, is unconstitutional.

E. The Article Is Structurally Deficient and Can Only Result in Acquittal.

The hastily drafted Article is not only wrong on the facts and the law, it also suffers from

a Constitutionally fatal structural defect that the Senate cannot remedy. This defect alone makes it

worthy of dismissal:

Put simply, the articles are impermissibly duplicitous—that is, each

article charges multiple different acts as possible grounds for
sustaining a conviction.208 The problem with an article offering
such a menu of options is that the Constitution requires two-thirds
of Senators present to agree on the specific basis for conviction. A
vote on a duplicitous article, however, could never provide certainty
that a two-thirds majority had actually agreed upon a ground for
conviction. Instead, such a vote could be the product of an
amalgamation of votes resting on several different theories, no
single one of which would have garnered two-thirds support if it had
been presented separately. Accordingly, duplicitous articles like
those exhibited here are facially unconstitutional.209
As noted in our previously filed Answer to the Charges, by charging multiple alleged wrongs in

one article, the House of Representatives has made it impossible to guarantee compliance with the

Constitutional mandate in Article 1, Sec. 3, Cl. 6 that permits a conviction only by at least two-

thirds of the members. The House charge fails by interweaving differing allegations rather than

208
“‘Duplicity’ is the joining of two or more distinct and separate offenses in a single count”;
“‘[m]ultiplicity’ is charging a single offense in several counts.” 1A Charles Alan Wright et al., Federal
Practice and Procedure § 142 (4th ed. 2019); see, e.g., United States v. Root, 585 F.3d 145, 150 (3d Cir.
2009); United States v. Chrane, 529 F.2d 1236, 1237 n.3 (5th Cir. 1976).
209
House Trial Memo 2020.
71
breaking them out into counts of alleged individual instances of misconduct. Rule XXIII of the

Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials provides, in

pertinent part, that an article of impeachment shall not be divisible thereon. Because the Article

at issue here alleges multiple wrongs in the single article, it would be impossible to know if two-

thirds of the members agreed on the entire article, or just on parts, as the basis for vote to convict.

The House failed to adhere to strict Senate rules and, instead, chose to make the Article as broad

as possible intentionally in the hope that some Senators might agree with parts, and other Senators

agree with other parts, but that when these groups of senators were added together, the House

might achieve the appearance of two thirds in agreement, when those two thirds of members, in

reality, did not concur on the same allegations interwoven into an over-broad article designed for

just such a purpose.

F. The Article Fails to State an Impeachable Offense as a Matter of Law.

The Articles of Impeachment also fail because, as former D.C. Assistant Attorney General

Jeffrey Scott Shapiro explains, “The president didn’t commit incitement or any other crime.”

As it relates to the allegation in the Article:

In the District of Columbia, it’s a crime to “intentionally or

recklessly act in such a manner to cause another person to be in
reasonable fear” and to “incite or provoke violence where there is a
likelihood that such violence will ensue… The president didn’t
mention violence on Wednesday, much less provoke or incite it. He
said, “I know that everyone here will soon be marching over to the
Capitol building to peacefully and patriotically make your voices
heard.” District law defines a riot as “a public disturbance . . . which
by tumultuous and violent conduct or the threat thereof creates grave
danger of damage or injury to property or persons.” When Mr.
Trump spoke, there was no “public disturbance,” only a rally. The
“disturbance” came later at the Capitol by a small minority who
entered the perimeter and broke the law. The president’s critics
want him charged for inflaming the emotions of angry Americans.
That alone does not satisfy the elements of any criminal offense, and

72
 therefore his speech is protected by the Constitution that members
of Congress are sworn to support and defend.210

It matters greatly that the President did not commit a crime, because the Constitutional requirement

for action that is grounds for impeachment is a high crime or misdemeanor.

By limiting impeachment to cases of “Treason, Bribery, or other

high Crimes and Misdemeanors,”211 the Framers restricted
impeachment to specific offenses against “already known and
established law.”212 That was a deliberate choice designed to
constrain the impeachment power. In keeping with that restriction,
every prior presidential impeachment in our history has been based
on alleged violations of existing law—indeed, criminal law…213
The terminology of “high Crimes and Misdemeanors” makes
clear that an impeachable offense must be a violation of
established law. The Impeachment Clause did not confer upon
Congress a roving license to make up new standards of conduct for
government officials and to permit removal from office merely on a
conclusion that conduct was “bad” if there was not an existing law
that it violated. 214

House Democrats’ theory on insurrection collapses at the threshold because it fails to describe any

violation of law whatsoever. Aside from the decided lack of causation that the evidence

demonstrably proves,215 Mr. Trump’s speech was well-within the long-understood protection of

210
Jeffrey Scott Shapiro, No, Trump Isn’t Guilty of Incitement, Wall Street Journal (Jan. 10, 2021),
https://www.wsj.com/articles/no-trump-isnt-guilty-of-incitement-11610303966
211
U.S. Const., art. II, § 4.
212
4 William Blackstone, Commentaries on the Laws of England *256.
213
See Impeachment Inquiry into President Donald J. Trump: Constitutional Grounds for Presidential
Impeachment Before the H.R. Comm. on the Judiciary, 116th Cong. (2019) (written statement of Professor Jonathan
Turley, Geo. Wash. Univ. Law Sch., at 15, https://perma.cc/QU4H-FZC4); H.R. Res. 611, 106th Cong. (1998); H.R.
Comm. on the Judiciary, Impeachment of William Jefferson Clinton, President of the United States, H.R. Rep. No.
105-830, 105th Cong. 143 (1998) (additional views of Rep. Bill McCollum); H.R. Comm. on the Judiciary,
Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 1–3 (1974).
214
House Trial Memo 2020.
215
See timeline above and see FBI reports.

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the First Amendment. A person does not lose his fundamental right to speak his mind just because

he is the President.

IV. CONCLUSION

The Article of Impeachment presented by the House is unconstitutional for a variety of

reasons, any of which alone would be grounds for immediate dismissal. Taken together, they

demonstrate conclusively that indulging House Democrats hunger for this political theater is a

danger to our Republic democracy and the rights that we hold dear. Reasons for dismissal include:

1. 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.

2. The Senate of the United States lacks jurisdiction over the 45th President because he holds

no public office from which he can be removed rendering the Article of Impeachment moot and a

non-justiciable question.

3. Should the Senate act on the Article of Impeachment initiated in the House of

Representatives, it will have passed a Bill of Attainder in violation of Article 1, Sec. 9. Cl. 3 of the

United States Constitution.

4. The allegations in the Article of Impeachment are self-evidently wrong, as demonstrated

by the evidence including the transcript of the President’s actual speech, and the allegations fail to

meet the constitutional standard for any crime, let alone an impeachable offense.

5. The House of Representatives deprived the 45th President of due process of law in rushing

to issue the Article of Impeachment and by ignoring its own procedures and precedents going back

to the mid-19th century. The lack of due process included, but was not limited to, its failure to

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conduct any meaningful committee review or other investigation, engage in any full and fair

consideration of evidence in support of the Article, as well as the failure to conduct any full and

fair discussion by allowing the 45th President’s positions to be heard in the House Chamber. No

exigent circumstances under the law were present excusing the House of Representatives’ rush to

judgment, as evidenced by the fact that they then held the Article for another 12 days.

6. 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.

7. The Article is constitutionally flawed in that it charges multiple instances of allegedly

impeachable conduct in a single article.

The Senate should dismiss these charges and acquit the President because this is clearly

not what the Framers wanted or what the Constitution allows.

Respectfully submitted,

Bruce L. Castor, Jr.

David Schoen
Michael T. van der Veen
Counsel to the 45th President
of the United States
February 8, 2021

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