Meanwhile, Trump’s defense team mostly ignores and deflects the substantive point, which is that Trump tried to overturn the election. The lawyers attempt to dispense with the matter in a short “statement of facts” at the start of the brief. They focus narrowly on Trump’s speech on January 6, and contend that no one should have taken him seriously, he was speaking metaphorically, and anyway, law enforcement should have done its job better.
There are several problems with this. In one instance, they try to construe a factual matter as a political one. Trump spent weeks insisting that the election had been stolen—which, if true, might have justified his efforts to overturn it. The problem is that this was a lie. According to his lawyers, these statements “amount to no more than Mr. Trump’s advocating his position that he won the Presidential election in November 2020.”
This isn’t a matter, though, of espousing a political position, like supporting tax cuts or seeking to raise the minimum wage. As a matter of fact, Trump lost the election. By January 6, he had exhausted his remedies in court, every state had certified its count, and the Electoral College had voted. Even so, the president was frantically pressuring Vice President Mike Pence to throw the election to him and telling those in the crowd that they had to do something about it.
In another instance, Trump’s lawyers do the opposite, construing a political question as a legal one. On January 2, Trump called Georgia Secretary of State Brad Raffensperger and begged and threatened him to “find” enough votes to show that he had won reelection. “Examining the discussion with the Georgia secretary of state under the standard of ‘incitement,’ leads to the same conclusion as the January 6, 2021, statements of Mr. Trump,” the lawyers write. “There is nothing said by Mr.Trump that urges ‘use of force’ or ‘law violation’ directed to producing imminent lawless action.”
David A. Graham: It was a corrupt quid pro quo
This objection is beside the point, though the Democratic brief invited it. The problem with Trump’s call to Raffensperger was not that it put him in breach of the Supreme Court’s incitement standard. The problem with the call was that he was trying to pressure an elected official into overturning an election.
Trump never grasped the weight that his words carry as president, as I have written previously. Despite his obsession with the trappings of the office, Trump continued to act blithely indifferent to the power his statements had, and the damage they could do. As a result, it might be impossible to convict Trump for inciting the insurrection in a court of law.
But the Senate is not a court of law. It need not matter to senators what Trump expected to happen, or even what a reasonable person in his position might have expected to happen. Fundamentally, senators must answer a political question: Can the nation afford to have a president who tries to overturn an election he lost?