(Thread) Over the Cliff Notes

The House Manager’s Impeachment Pre-Trial Brief

It’s here: https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf?utm_campaign=5706-519 (77 pages)

I. Introduction

Right away, the House Managers steer clear of a pitfall they face: Having this trial play out as if it’s a criminal trial.

This isn't a criminal trial. Trump betrayed his oath of office.

The Constitution makes clear criminal prosecution can happen later. This trial can result only in removal from office and/or inability to hold future office.

So, for example, the standard of proof is lower.

1/

The introduction gives an overview of the facts, and the facts are damning.

“Trump used his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America.”

"Fight like hell [or] you're not going to have a country anymore."

2/

I won't recount all the facts. You all know them well. Also it seems the managers are saving some fire: They'll have some explosive visuals for the trial.

I'll just point out that Trump being "delighted" during the riot is important because it speaks to his intentions.

3/

Included (for obvious reasons) in the introduction are quotations by Liz Cheney and Mitch McConnell.

Also in the Intro, they deal with the "defense" that Trump can no longer be tried now that he's out of office . . .

4/

Here they touch on the constitutional scholarship and point out that this view gives a "free pass" to stage a coup toward the end of the presidency to stay in power.

Aside: Absurd to think that the Constitution offers a Last-Minute-Coup Exception.

5/

They end the Introduction by arguing for conviction "to deter future Presidents from attempting to subvert our Nation's elections."

I love that they throw in the word "unity."

(This is definitely an A+ brief.)

6/

The Statement Facts is readable and thorough, covering how:

Trump made clear before the election he wouldn't accept any result unless he was the winner
He pressured and extorted state officials and the DOJ to flip the election for him
He incited the riot.

Examples:

7/

Paused to answer a few questions
https://twitter.com/Teri_Kanefield/status/1356642611075850242

The Statement of Facts is worth reading. It should at least make GOP Senators squirm when the acquit (as I suspect most will because of who and what we're dealing with.)

The legal arguments begin on page 42.

8/

First, they debunk the argument that impeachment moved too quickly.

The events were filmed on national television and witnessed by members of Congress. Weeks and months of investigations was therefore unnecessary (or I'll add Constitutionally mandated)

9/

Next they emphasize that this isn't a criminal trial.

(Aside: It makes no sense for "High Crimes and Misdemeanors" to refer the federal criminal code which didn't exist when the Constitution was written)

10/

Next up, debunking the argument that Trump's belief that the election was stolen was a defense to inciting an attack on Congress.

(Duh, right? But they need to debunk all the nonsense.)

11/

Page 45-48 explains why Trump's speech is not protected by the First Amendment.

(Aside, the way the right wing distorts the First Amendment freedom of speech makes me go)

I'll just list the arguments.

12/

Trump's incitement of deadly violence to interfere with the peaceful transfer of power, and overturn the election, was a direct assault on First Amendment principles.

The First Amendment protects private citizens from the government. . . .

13/

.. . therefore a range of scholars (including @kewhittington) explain why the First Amendment doesn't apply at all to impeachment proceedings.

The question isn't whether an individual faces liability for speech. The issue is protecting the Constitutional order.

14/

It's also absurd to argue that the president has a free speech write to incite a deadly riot for the purpose of overturning an election and keeping himself in power.

Public officials are differently situated.

15/

Finally, speech isn't protected when it's "inciting or producing imminent lawless action and is likely to incite or produce such action."

(We all know the examples. My freedom of speech doesn't let me go to a bank teller and say "This is a stick up! Give me all the money!")

16/

They even refute the Cancel Culture argument.

The bulk of what's left (48 - 74) refutes what will certainly be the centerpiece of Trump's defense: The argument that the Senate doesn't have jurisdiction because he's no longer in office.

17/

They start with common sense. Transfer of power happens at the end of the term.

Absurd to think the framers intended a "January exception" allowing a president to attempt to stay in power by inciting an insurrection without fearing a Senate trial.

18/

"A president must answer comprehensively
for his conduct in office from his first day in office through his last."

Quoting a co-founder of the Federalist Society and Ronald Reagan’s Solicitor General

Also note the burn on Turley:

19/

Next they offer a straightforward reading of the Constitution. The House impeached while Trump was president.

From Art. Section 3, “The Senate shall have the
sole Power to try all Impeachments”

A Bush appointed judge explained that "all" basically means "all."

20/

(If you're wondering why it's taking me so long to read this, I have to keep getting more )

If the framers intended the Senate to have power to only try impeachments of sitting presidents they would have written that instead of "all."

We can't just "move on" from this.

21/

One theory of constitutional interpretation is we look to see what the framers intended at the time. They drew from English legal history, and former officials could be impeached and disqualified from future office.

Then we get some American history and our precedent . . .

22/

At this point the brief delves into constitutional and historical scholarship. I'm already up to Tweet #23, so I'll just give my conclusion:

If the Senate cares about law and facts, Trump's defense is a loser.

("If" did a lot of work in that sentence.)

23/

Although, of course, to be perfectly fair, I should wait to get Trump's response brief.

It's entirely possible that I'll be dazzled by the brilliance of Trump's arguments for how he should escape accountability (Me = keeping an open mind!)

Expect more Over the Cliff Notes.

24/

My blog and website are back up, and this thread is on my blog now: https://terikanefield-blog.com/the-house-managers-impeachment-pre-trial-brief/