With Trump expected to stand trial next week in the US Senate on impeachment charges that he incited the January 6 insurrection at the US Capitol, his legal team has poured criticism over the procedure, claiming in a legal brief that the US Senate has no authority to try him as a private citizen.
The US House of Representatives filed its pretrial brief on Tuesday, in which it laid out its case for accusing Trump of spurring the crowd at his "Stop the Steal" rally outside the White House to then assault the US Capitol at the other end of the National Mall, disperse Congress from its joint session certifying the results of the November 3, 2020, election, and void the results of that election.
In a response, Trump's lawyers, Bruce L. Castor, Jr., and David Schoen, have claimed the trial is unconstitutional in part because Trump is no longer President of the United States. Trump's term ended on January 20, when US President Joe Biden was sworn in.
"The constitutional provision requires that a person actually hold off to be impeached," the filing argues. "Since the 45 president is no longer 'president,' the clause 'shall be removed from office on impeachment for...' is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio."
"The 45th president believes and therefore avers that as a private citizen, the Senate has no jurisdiction over his ability to hold office and for the Senate to take action on this averment would constitute a Bill of Attainder in violation of Art. I, Sec. 9. Cl. 3 of the United States Constitution. The 45th president asks the Senate to dismiss Averment 2 relating to the 14th amendment as moot," Trump's lawyers further argued.
The section of the 14th amendment in question states that any person who has "engaged in insurrection or rebellion against" the US may not "hold any office ... under the United States." The amendment was passed in the aftermath of the 1861-65 US Civil War, during which 13 US states tried and failed to secede from the country in order to preserve the legal enslavement of Black people.
In their own previous filing, House Democrats urged that "There is no 'January Exception' to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last."
In the Senate, 45 Republicans have already come out against the trial, voting to dismiss the charges on the grounds that they are unconstitutional at this point. However, Democrats seized a narrow majority in the chamber in recent elections, meaning the charges will not so easily be cast aside as Trump's first impeachment trial in January and February of 2020. In that trial, which took place before a Republican-majority Senate, Trump was accused of abuse of power and obstructing Congress in connection with the interruption of military aid to Ukraine in an attempt to pressure Kiev into investigating Biden and his son, Hunter, for business dealings in the country some years earlier.
During the January 6 attack on the Capitol, five people were killed and the national legislature was looted by Trump's supporters, many of whom have claimed they were acting on Trump's orders and in defense of the US Constitution. However, they ultimately failed in their venture, and after the rioters were cleared from the building, lawmakers reconvened and certified the election results showing Biden as the winner.
Trump had claimed since long before the November 3 election that it would be rigged by Democrats, and after the ballot totals came in, Trump claimed they were fraudulent and had been manipulated by Democrats and Democrat-friendly companies. The January 6 protest-turned-riot was one of several such events put on by Trump and his supporters in Washington, DC, with the intent of overturning the election and giving Trump a second term, some of which sent city residents fleeing after far-right groups attacked local Black churches and other institutions.