Litman: Trump's impeachment defense is threadbare and irrelevant. But he'll probably win

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Hundreds of congressional staffers in recent days have signed an open letter recounting the trauma of the January 6 attack on the U.S. Capitol and imploring senators to vote to convict former President Donald Trump for inciting the deadly insurrection.

In an 80-page memo delivered to the Senate on Tuesday ahead of next week's impeachment trial, the House managers lay out their case against Trump and the grounds for convicting him even after he's left office. Federal authorities are also investigating militia groups who met before Trump spoke and organized travel in advance of the January 6 rally, which took place the day Congress met to count the electoral votes.

The House voted a week after the January 6 attack on the Capitol to impeach then-President Trump for an unprecedented second time.

The mob stormed the Capitol, fatally wounded one police officer, wrecked furniture and forced terrified lawmakers and vice president Mike Pence to hide, interrupting a ceremony to put the legal stamp on Biden's victory.

FILE - Pro-Trump protesters tear down a barricade as they clash with Capitol Police during a rally to contest the certification of the 2020 U.S. presidential election results by the Congress, at the U.S. Capitol Building in Washington, Jan. 6, 2021.

The utter failure of Republicans to uphold their constitutional responsibilities would be made all the more obvious by the weakness of the former president's response to the impeachment - or, more accurately, the lack thereof.

Enough Republican senators have signalled opposition to impeachment to indicate that the chamber nearly certainly will fall short of the two-thirds majority needed to convict him.

Trump initially commuted Stone's sentence before granting him a full pardon in his last week as president. The problem is they didn't do that, and that is the fundamental flaw in this impeachment trial, constitutionally speaking.

The disagreement over the cost of the defense contributed to existing "frustrations" among Bowers and the other attorneys after Trump pushed them to argue without evidence that there was widespread election fraud, according to CNN. But the defense says that Trump, like any citizen, is protected by the First Amendment to "express his belief that the election results were suspect".

The Democratic memo, meanwhile, accurately quotes Trump's falsehoods about the election and his incendiary rhetoric, and catalogs judges' decisions rejecting his post-election arguments. (He has a legal right to root for global foes to defeat the United States, but it is nevertheless impeachable conduct for the commander in chief to do so.) Furthermore, the First Amendment is inapplicable when it comes to inciting violence.

Democrats also rejected the reasoning that Trump can not be tried once out of office.

"There is no "January Exception" to impeachment or any other provision of the Constitution", the managers said.

Additionally, they point to the "text and structure" of the Constitution as well as precedent to argue that the Senate can try a former president.

Trump spent much of his time after the November 3 vote claiming that the election was stolen.

Dozens of courts in multiple states found the argument baseless. The single article of impeachment passed by the House accuses Trump of "incitement of insurrection".

Nine House of Representatives politicians said Mr Trump pointed a mob "like a loaded cannon" at Congress and said he should be convicted and barred from holding public office in the future.

It not only explicitly faults Mr Trump for his role in the riot but also aims to preemptively rebut defense claims that his words were protected by the First Amendment, or that an impeachment trial is unconstitutional now that he has left office.

"Watching the potential for violence is something that we will do closely", she said.

We also discussed the first new lawsuit that the American Center for Law and Justice is filing for 2021.

If the ex-president's lawyers can not come up with even one excuse for his conduct, how will Senate Republicans avoid the impression that they are hopeless flunkies for a disgraced, seditious president?

The Senate's 100 members take up the impeachment trial on February 9, and Democrats acknowledge a conviction is unlikely.

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