A brief submitted by the legal team of former President Donald Trump to defend him from charges of “inciting insurrection” in his upcoming Senate impeachment trial states that he still considers himself president, an assertion that potentially places Senate Republicans in a Catch-22 situation, forcing them either to contradict Trump or contradict their own claims that he’s an ex-president, and thus un-impeachable.
“The President’s defense brief did, in fact, argue Trump’s line that Joe Biden maybe wasn’t legitimately elected to be president. The whole brief, for one, never once describes Donald Trump as the former or previous president… The brief argues that the election results that voted Trump out and Biden in, it argues that those results are, and I quote, ‘suspect.’ It argues that when President Trump told his supporters on the day of the attack that he had actually won the election in a landslide, well they argue in their brief today that there’s no evidence to say that’s false.”
Why it Matters
Trump’s defense states in part that he can’t be convicted of inciting an insurrection on January 6 because, the brief claims, he was merely stating his belief that he won the election in a landslide—even though more than 60 lawsuits making similar assertions have mostly been thrown out of courts due to lack of evidence.
As such, Trump’s defense potentially puts Senate Republicans in an awkward position.
On January 27, 45 Senate Republicans voted to declare the impeachment trial unconstitutional because, they said, you can’t impeach an ex-president. However, since Trump says he’s still president, that means he believes that he can in fact still be impeached, thus contradicting the 45 Senate Republicans who said otherwise.
If Senate Republicans assert that Trump isn’t the rightful president, that would directly contradict Trump and undermine a key part of his legal defense. That would also leave Republicans subject to possible harassment and death threats from some Trump supporters who also believe that he did win the election and that key Republicans haven’t done enough to help him stay in power.
Regardless of Trump’s legal defense, there aren’t enough Senate votes to impeach him in the upper chamber. For impeachment to occur, 17 Senate Republicans would need to cross party lines and vote with Democrats to convict him, but only five Senate Republicans voted to hold the trial to begin with.
While the impeachment trial could still drag down Republicans’ public image— especially if insurrectionists are called in to testify and blame Trump’s words for inciting them to riot—he won’t likely be convicted.
South Carolina Republican Senator Lindsey Graham has said that calling witnesses will “open a can of worms,” causing the trial to stretch out for months as senators question FBI agents about the numerous organizers behind the January 6 “Stop the Steal” rally where Trump made his comments.
However, Graham’s claim may just be a warning to Democrats: The longer Senate is held up with impeachment business, the less time it will give towards confirming President Biden’s political appointees or considering legislation to further Biden’s agenda.