President Trump Needs to Make His Impeachment Defense First in Court before Making it in the Senate

by Mario Apuzzo, Esq., puzo1.blogspot.com, ©2021

(Jan. 17, 2021) — ABC News is reporting the following:  

President Donald Trump’s personal attorney Rudy Giuliani tells ABC News he’s working as part of the president’s defense team in his upcoming second impeachment trial — and that he’s prepared to argue that the president’s claims of widespread voter fraud did not constitute incitement to violence because the widely-debunked claims are true.

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“They basically claimed that anytime [Trump] says voter fraud, voter fraud — or I do, or anybody else — we’re inciting to violence; that those words are fighting words because it’s totally untrue,” he said. “Well, if you can prove that it’s true, or at least true enough so it’s a legitimate viewpoint, then they are no longer fighting words.”

https://abcnews.go.com/US/giuliani-working-trumps-impeachment-defense-argue-voter-fraud/story?id=75302032

I am glad to see that President Trump’s legal team has focused on the impeachment defense of presenting evidence of the alleged election irregularities to the Senate during the impeachment trial. As I explain in my previous article, “President Trump Must Immediately File A Declaratory Judgment Action to Vindicate Himself and Put an End to the Election Controversy and New Impeachment,” http://puzo1.blogspot.com/2021/01/president-trump-must-immediately-file.html, if the election in the six or seven contested states can be shown to be invalid, then President Trump did not “lie” to the American people and his speech is protected by the First Amendment. Such a showing would destroy the factual predicate of the Article of Impeachment.

But Trump bringing his case to the Senate rather than first to a court of law is a grave error. As I explained in my article, Trump needs the declaratory judgment action against the House of Representatives and Congress as a whole to be able to establish what are the facts regarding the election in the six or seven contested states and what was his role concerning the Capitol invasion of January 6, 2021. The problem with having in the first instance the trial of those issues in the Senate is that Trump would not have the same due process rights in the Senate that he would have in a court of law.

He needs to exercise those due process rights so that he can later demonstrate in the Senate that he did not commit any “high Crime[]” or “Misdemeanor[].” An impeachment trial in the Senate does not afford Trump the same due process rights he would have in a court of law. As we witnessed in President Trump’s first impeachment, there is no real legal standard as to what a high crime or misdemeanor is. The interpretation and application of those words is rife with political bias existing in any given moment of history. For example, then-House Minority Leader Gerald R. Ford in 1970 defined the words thus: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. Again, the historical context and political climate are important.” Gerald Ford’s Remarks of April 15, 1970 on the Impeachment of Supreme Court Justice William Douglas Archived April 12, 2019, at the Wayback Machine. Retrieved January 17, 2021. Hence, Trump needs to develop and prove as much factual information as he can in a hopefully dispassionate court of law before a jury free of passion, prejudice, and sympathy prior to the Senate trial in order to meet that political challenge there.

Trump would not have in the Senate the same discovery and subpoena powers that he would have if he first filed the declaratory judgment action in federal district court. A court of law has more power and will to sanction discovery violators than would a politically charged Senate. The rules of evidence apply in a court but not in the Senate. Neither a civil nor criminal court would allow as we saw in the House of Representatives a witness to offer that President Trump is the “Racist in Chief,” clearly irrelevant and inflammatory, as evidence of liability or guilt with respect to the Capitol invasion.

Furthermore, just showing that he spoke the truth about the election irregularities is not sufficient. Trump also must demonstrate that he did not cause the Capitol violence and invasion. The issue of causation (is Trump’s speech a legal cause of the violent invasion of the Capitol) can better be presented and argued in a court of law, which is highly experienced with the complexity of the causation issue. Consider how the politically charged members of the House of Representatives during the impeachment trial basically ignored the fundamental issue of causation. Like in the House of Representatives, we cannot expect a similarly politically charged Senate to give to the causation issue the respect that the law demands it deserves. In the Senate, like we saw in the House of Representatives, Trump would probably be subjected to that body’s political judgment, however tainted, and a victim of our current political and social “cancel” culture rather than to any legal judgment. Simply stated, Trump cannot expect to receive due process of law in the Senate that he would receive in a court of law.   

Corporate interests have significantly cut President Trump’s ability to communicate with the American people and the world. They are therefore interfering with his political speech and ability to defend himself and the nation. With a lawsuit in court, President Trump can fully defend himself by taking action to show that he did not commit any wrong. There, he would also have the right to have a jury of the people decide the facts based on admissible testimony, exhibits, and stipulations rather than the politically motivated Senate acting as a jury. Finally, he would also be able to appeal to the Circuit Court of Appeals and have a path to the U.S. Supreme Court, if necessary. There is no appeal in an impeachment trial by the Senate. Even if he were to file an appeal to a court of a Senate conviction, that court would most likely rule that it has no jurisdiction because what happened there is a political question and nonjusticiable. See https://www.lawfareblog.com/supreme-court-has-no-role-impeachment. After developing his evidence and factual record in court, he can then stand fully prepared to challenge his impeachment trial in the Senate. Trump’s legal team should also seek a court order staying the impeachment trial pending completion of his declaratory judgment action.

The due process rights outlined above, among others, are fundamental to our justice system. Hence, all roads lead to President Trump having to bring his case to a court of law first before he brings his case to the Senate.  Legal action in a court is the only way that he can hopefully receive the due process and justice to which he is entitled.