Trump impeachment defence: 5 key takeaways from memo defending the president

President's supporters attacked the Capitol 'of their own accord and for their own reasons,' memo claims

Donald Trump’s impeachment defence team has once again denied the former president’s culpability in the deadly insurrection at the US Capitol on 6 January, arguing in a 78-page legal memorandum filed on Monday that the perpetrators of the attack acted “of their own accord and for their own reasons.”

The memo from lead defence attorney Bruce Castor offers a slate of reasons the House-ratified impeachment article against his client, “incitement of insurrection,” should be dismissed — from process- and constitutionality-based criticisms to a dismissal of House impeachment managers’ characterisation of the key facts.

Here are five key takeaways from Mr Trump’s argument for acquittal:

1. It knows its audience

Fox News, conservative voters, and Republican lawmakers.

The memo reads less like a standard legal file and more as a Trump-era Republican congressional press release disparaging Democrats.

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The document employs the common conservative communications device of using “Democrat” as an adjective, an epithet against the Democratic party in Washington that Republicans have hammered for years.

Mr Castor condemns “Democrat members,” “Democrat politicians,” and their “Democrat colleagues” for suffering from “Trump Derangement Syndrome.”

For those unversed in conservative lexicon, that’s a common term on the right for any lawmakers — Democratic or Republican — who they believe harbour a disproportionate hatred of the former president.

The Trump defence team’s introduction concludes not by countering the arguments of the nine Democratic impeachment managers prosecuting the case against their client, but by questioning the managers’ intentions for pursuing the impeachment in the first place.

“The intellectual dishonesty and factual vacuity put forth by the House Managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking justice,” the memo states.

It piles on: “Instead, this was only ever a selfish attempt by Democratic leadership in the House to prey upon the feelings of horror and confusion that fell upon all Americans across the entire political spectrum upon seeing the destruction at the Capitol on January 6 by a few hundred people. Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers who stormed the Capitol, the Speaker of the House and her allies have tried to callously harness the chaos of the moment for their own political gain.”

There is, of course, no way to know the true intentions of lead manager Jamie Raskin of Maryland and his eight colleagues who will present their evidence against Mr Trump in the Senate beginning on Tuesday.

2. It misrepresents the constitutional arguments of the scholars it cites

The former president’s defence memo extensively cites a 2001 paper from Michigan State University law professor Brian Kalt that lays out the case for and against post-service impeachments and trials — and ultimately favours allowing them to move ahead.

Mr Trump's lawyers and Republican senators have mostly fallen back on arguments of process and whether it is constitutional to convict a president on articles of impeachment who no longer holds office.

Mr Kalt, the MSU professor, has publicly called out Mr Trump’s lawyers for including in their impeachment filing “flat-out misrepresentations” of his work.

“My article presented all of the evidence I found on both sides, so there was lots for them to use fairly. They didn't have to be disingenuous and misleading like this,” the professor tweeted on Tuesday, highlighting numerous examples.

Mr Kalt noted that the House managers’ filing from last week cited his article extensively as well, “and, to their credit, did so honestly.”

3. It does little to address Trump’s pre-January 6 behaviour

The House impeachment managers’ 80-page memo from last week goes into extensive detail about Mr Trump’s actions and statements throughout 2020 — including before the election — that fomented anger and hostility towards Democrats and the 2020 election results.

In their response, Mr Trump’s team argues that the impeachment managers’ case hinges on the president’s roughly hour-long address to supporters at the Ellipse (just south of the White House) on 6 January shortly before they marched to the Capitol and eventually overran it.

The president has been impeached, the ex-president’s lawyers claim, for “political speech that falls squarely within broad protections of the First Amendment.”

But key to the Democrats’ case is the notion that the 6 January riot at the Capitol was not some spontaneous uprising, but rather a carefully sown and watered movement cultivated for months by Mr Trump.

“After losing the 2020 election, President Trump refused to accept the will of the American people. He spent months asserting, without evidence, that he won in a ‘landslide’ and that the election was ‘stolen,’” the managers write in their initial brief from last week.

"He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the Nation’s continued existence,” they write.

The courts rejected nearly every challenge, the managers have pointed out.

Yet that did not matter to Mr Trump’s supporters.

“By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result — and as had been widely reported — the crowd was armed, angry, and dangerous,” the managers have written.

Throughout 2020, “he insisted at rallies and through social media that if he appeared to lose the election, the only possible explanation was a conspiracy to defraud him and those who supported him,” they write.

One of several examples they cite comes from a speech from the president on 17 August 2020 : “The only way we’re going to lose this election is if this election is rigged.”

Mr Trump’s lawyers have dismissed that supporting contextual information as extraneous.

The Democrats, they claim, went to “great lengths [in their memo] to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media.”

In an impeachment trial — where there is no clear evidentiary standard baked into statute and no judge to outline one — the information presented by each side is only as relevant as each senator voting on Mr Trump’s guilt deems it.

4. The Trump team has selective memory

The Trump team’s memo accuses House Democrats of including in their own filing “cherry-picked, noncontextual parsing of Mr. Trump’s January 6 speech” that does not capture the totality of his remarks, including various appeals to non-violence.

“As President Trump said in a video statement of condemnation, ‘I want to be very clear, I unequivocally condemn the violence that we saw last week. Violence and vandalism have absolutely no place in our country and no place in our movement.’ Mr. Trump’s comments echoed his sentiments expressed the day of the rally, as he repeatedly urged protesters to stay peaceful, and told rioters to go home,” the defence’s memo states.

But the statement from then-President Trump quoted in the above excerpt from Tuesday’s text issued from the White House a week after the violence at the Capitol about which, according to scores of media outlets and the Democrats’ impeachment memo, Mr Trump was exultant.

As the impeachment managers point out in their memo from last week:

“Only hours after his mob first breached the Capitol did President Trump release a video statement calling for peace — and even then, he told the insurrectionists (who were at that very moment rampaging through the Capitol) ‘we love you’ and ‘you’re very special.’ President Trump then doubled down at 6:01pm, issuing a tweet that blamed Congress for not surrendering to his demand that the election results be overturned: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’” the managers write.

The impeachment managers will argue at trial that Mr Trump’s alleged support of the insurrection as it was happening should weigh far heavier on the minds of senators than the his condemnation a week later, when it was clear he was on the verge of a second impeachment.

Even at the time of Mr Trump’s statement condemning the violence on 13 January, news outlets and congressional Democrats widely viewed it as a long-term play to shield himself from liability in a potential criminal or impeachment trial.

5. What is the meaning of the word 'fight'?

The Trump team’s argument against the merits of the impeachment charge hinges on the connotations of a particularly thorny word: “fight.”

In his speech on 6 January, and in statements prior to the uprising, the former president used the term “fight” — uttered “a little more than a handful of times” out of over 10,000 words spoken on the Ellipse, his lawyers write — in the “figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them,” his lawyers write.

In a vacuum, that argument is a fair one, as the term “fight” has been employed by virtually every lawmaker in recent US history at one time or another to promote a bevy of political causes.

But, Mr Trump’s team adds, the word “was not and could not be construed to encourage acts of violence.”

The problem with that particular line is that the president’s words were interpreted as calls to perpetrate violence at the Capitol — and Mr Trump was aware that the crowd he was addressing included at least some violence-minded elements.

“After the insurrection, one participant who broke into the Capitol wearing combat gear and carrying zip ties stated that he acted because ‘[t]he President asked for his supporters to be there to attend, and I felt like it was important, because of how much I love this country, to actually be there,’” Democrats’ memo from last week states.

Another woman quoted by the impeachment managers later told authorities: “I thought I was following my President. … He asked us to fly there, he asked us to be there, so I was doing what he asked us to do.”

The mobilisation effort for the MAGA march on the Capitol was “widely discussed on websites — such as TheDonald.win — that, as confirmed by a former White House staff member, were ‘closely monitored’ by President Trump’s social media operation,” the impeachment managers’ memo states, citing an article penned by The Independent’s Andrew Feinberg.

TheDonald.win webpage was home to “hundreds of posts about plans for the attack on the Capitol, with detailed discussions of weaponry and directions to ‘find the tunnels’ and ‘arrest the worst traitors,’” the memo alleges.

The impeachment managers this week will attempt to spin a narrative that Mr Trump intentionally fomented anger and hostility towards Congress and the Electoral College certification process for months, militarising his supporters in a desperate scheme to remain in power.

In a tweet from 18 December, he suggested alleged Democratic voter fraud was an “act of war,” and tacitly urged supporters to “fight to the death”:

“If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it an act of war, and fight to the death. Mitch & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” the president tweeted on 26 December.

Democrats’ memo highlights another instance from 4 January, when Mr Trump “gave an angry speech in Dalton, Georgia, warning that ‘Democrats are trying to steal the White House … [y]ou can’t let it happen. You can’t let it happen,’ and ‘they’re not taking this White House. We’re going to fight like hell, I’ll tell you right now.’”

Senators will decide this week what Mr Trump meant when he exhorted his followers to “fight.”