Good evening, followers of sedition and its consequences: as promised, let's take a look at the "Answer" that Trump's latest set of impeachment lawyers have filed in the Unites States Senate [sic].

https://assets.documentcloud.org/documents/20468428/trumps-answer-to-article-of-impeachment.pdf

The President's lawyers have decided to "break[] the allegations out into 8 Averments." That's their choice; it does not match the format of the Articles of Impeachment itself. But it's not an entirely unreasonable way to do things, I suppose.

This is a relatively good leading argument - it goes against the weight of authority, runs counter to past practice, and ignores the fact that the *impeachment* took place while Trump was President. But it's probably the best argument they have.

This bit is mostly handwaving. It's an interesting argument, but as above it runs headlong into both prior practice and the weight of authority.

Frankly, I agree that Trump was not engaged in insurrection or rebellion. Setting aside the question of whether the President can rebel, the incitement was seditious I think it stopped short of insurrection.

Wait wut is this whitewash-bucket-pratfalling-tiny-bike-riding-ringmaster-chasing nonsense even?

A bill of attainder is a very different thing than an impeachement. They are not the same at all. They were two very distinct things under English law at the time of the Revolution. They're not interchangeable and the differences do not depend on the status of the defendant.

In part that's because there really isn't a *defendant* in any meaningful sense of the term when there's a bill of attainder.

Also, if your BEST DEFENSE is basically that Trump is a private citizen WHY THE BLAZES are you ONLY referring to him as "The 45th President" instead of as "Private Citizen Donald Trump"???

You would expect the very ink to scream in agony at being forced to take the shape of the words "at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States." Either that or to die laughing.

On the other hand, the claim that Trump "acted to the best of his ability" might even be true. More's the pity.

And the rest of this is basically "neener neener neener I'm standing on base so I'm safe and you can't tag me." Again.

This is as bold. And stupid.

It's an attempt to paint the "fraud" allegations as merely an attempt to push the *other* big lie about non-legislative change. It's giving the Impeachment Managers a very large opening to use to make acquitting more uncomfortable for the Senate.

And this is a --

yikes.

No, you didn't want to go there. Also, Mitch McConnell *REALLY* didn't want you to go there.

This isn't so much cracking the door as it is blowing up the door, doorframe, and the whole side of the barn.

There's also a great deal of room to question the extent to which the President is covered by the First Amendment when speaking as President, or whether Congress can (and should) apply the rules that would apply to other federal employees.

What does the highlighted text even mean? They're going with "we won it by a landslide" as a defense?

Mitch the Turtle must be chewing the carpets in frustration at this point. He set things up for an easy and quiet acquittal, but here comes Trump and three more rings of clowns.

Also, the only thing that "there were non-legislative changes" has to do with "election security" is that it's part of the Republican Party's latest bait-and-switch number.

Dumbest.
Denial.
Ever.

They're begging for a fight. And it's a STUPID fight. They're still heading for acquittal, probably, but this strategy will absolutely increase the number of Republican defectors.

But well-done here. Nothing like framing the matter in terms that makes your closest allies look like unprincipled political ratfuckers engaged in a meaningless game of tit-for-tat. I'm sure Ted and Josh appreciate this.

Denying that the phone call was an effort to subvert the certification is rich. Really really rich. Not rich like Trump, in other words.

Denying that the talk about criminal prosecution was a threat is also a bold choice.

Credit where due, it takes a special kind of lawyer to put that kind of statement in a signed pleadin---

Oh, right. It's not signed. I nearly forgot.

And for the love of dog the "void ab initio" thing is driving me bonkers. The impeachment vote came before the inauguration so it's not void from the start. Became moot, possibly, but "void from the start" is a bloody dumb argument.

Don't you love it when someone crtl-v's their way to even more unnecessary stupid mistakes?

These are their two best arguments. As I said, not *good* arguments, but the best ones.

This is not a good argument. This is a stupid argument. This is "hi I'm a lawyer not a shmuck in a bad suit trust me stupid."

I just went to Westlaw and found a pre-Revolution case that explains that a Bill of Attainder "punishes without the forms of judgment, or conviction and evidence" The “Dickenson,” William Merton, Master, 165 ER 1, 4 (1776).

It took me 84.14 seconds to find that case.

Yes, I timed it.

No, I didn't expect it to take quite so little time. But I did expect that research to come in at under 6 minutes.

The impeachment might - if the "he's not POTUS anymore" argument is accepted - be invalid. But it would not be a Bill of Attainder; it does not punish without conviction or evidence.

The constitutional standard for impeachable offense is "the House voted to impeach on these grounds." That was met.

OK, I thought "Bill of Attainder" was scraping the bottom of the barrel but this is dumber.

There is plenty of due process - like a whole Senate Trial's worth of it.

I can't even.

No, seriously, I can't. We're just moving on. If @AkivaMCohen wants to talk about whether impeachment violates a constitutionally guaranteed right to free thought it's all his.

But wait! It gets dumber!

Fun fact: The House of Representatives isn't bound by Senate Rules. That's part of the whole "The House of Representatives is not the Senate" thing.

This is dumber still. It's contradicted by the logic of this whole line of argument, to the extent that there is logic here. Or a line of argument.

You're saying he's not the President and you are *COMPLAINING* that the Chief Justice isn't presiding?

Good grief, use that as part of the argument. That's the universe throwing you a softball question from the bench and you're fighting the question.

But it does look like this version, unlike the one @HaygoodLaw showed me earlier, is signed. So the lawyers lose that excuse.

Overall:

This is more a political exercise than a legal one, but I do not think this filing does a good job even in that context. Actually, I don't think it does a good job PARTICULARLY in that context.

They have the benefit of coming at this in the knowledge that the test vote on the "can you still convict when the President out-of-office" was in their favor by a comfortable margin.

Had they argued that point with a little "the Brandenburg test isn't met so it wasn't incitement" fig leaf for good measure, this whole thing would be done. Put a fork in it, it's over, done and dusted. But they just couldn't bring themselves to do that.

Instead, they've set the stage for a crap-slinging festival on the Senate floor, and one that will make acquittal votes much more uncomfortable than needed.

I think they still acquit, but this made acquittal marginally less likely when it could have locked it in.

This just goes to prove that the hardest thing to do in law is sit down and shut up when you're winning.

/fin