An impeachable offense is anything that 218 House Representatives and 67 Senators say it is — no more, and no less. The Constitution specifies removal from office for "high crimes and misdemeanors," which means exactly what Congress decides it means. And if the Republicans could have whipped 67 votes to throw Obama out of office for that stupid tan suit, you can bet your bottom dollar they would have called it a crime and done it.

With that in mind, let's look at the impeachment briefs filed by the House and the Trump legal team this morning which can be summarized basically as THIS CONDUCT WAS BEYOND THE PALE and NO CRIMES WERE COMMITTED. Can you guess which one is which?

Good job, you! And also, do you see the way that these people are deliberately talking past each other?


In their 80-page Trial Memorandum, the House impeachment managers lay out in exquisite detail all the ways the former president undermined American democracy. From saying way back in July that he might not accept the results of the vote, to baselessly accusing Democrats of trying to steal the election, to leaning on the Georgia secretary of state to "find 11,780 votes, which is one more than we have," to filing dozens of baseless lawsuits as an "improper and abusive means of staying in power when it became clear that the courts were unconvinced by his claims," to inciting the riot at the Capitol, Trump thoroughly disgraced his office.

They've given us 30 pages on what happened between November 3 and January 20 and why it's bad, but we don't have to go through them because we all lived through this shit. We don't have to wait for DC cops to slap the cuffs on Trump for inciting a riot (or the Georgia Bureau of Investigations to arrest him for attempted election fraud) to call this impeachable conduct, because you don't have to commit a crime to be impeached.

Say it with us now: Impeachment is a political procedure, not a criminal trial.

No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union—even though private citizens could be protected by the First Amendment for such speech. By its own terms, and in light of its fundamentally democratic purposes, the First Amendment does not constrain Congress from removing an official whose expression makes him unfit to hold or ever again occupy federal office.

If Trump had taken a vow of silence and moved to an ashram, we'd have all celebrated! And then impeached him, because sometimes doing a very cool, very legal thing is still an abdication of the duties of your office.

In response, Trump's lawyers argue that the former president has committed no crime and has a First Amendment right to say whatever he likes. Which is perhaps true (and perhaps not), but also entirely irrelevant because Congress isn't a court of law. The First Amendment, "protected speech," and due process are important bulwarks of the American judicial system, but they have nothing to do with impeachment which takes place entirely in the legislative branch.

Trump's lawyers write that "The House of Representatives' action, in depriving the 45th President of due process of law, created a special category of citizenship for a single individual: the 45th President of the United States." Which is hiding the salami, and not with any degree of deftness. The president is a "special category" of citizen, which is exactly why Robert Mueller couldn't indict him for obstruction of justice. And it's RICH for the same guy who spent the past four years screaming that all his communications were shrouded in a special cloak of executive privilege immunity from congressional and judicial process to complain that he has fewer rights than some rando on the street.

Which is perhaps why the response leans so heavily on the argument that impeachment is UNLEGAL now that Trump is out of office.

"The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed rendering the Article of Impeachment moot and a non-justiciable question," it repeats over and over. In fact, the Constitution is silent on the question of whether a former president can be impeached, although Congress did impeach the secretary of war in 1876 even after he'd left office. And we can't help but notice that Trump was impeached by the House on January 13, while he was still a sitting president. The only issue is whether the trial should proceed in the Senate.

Which brings us back to, you guessed it, a political question. Because Trump might have gotten the Supreme Court to weigh in on this as a matter of law as Alan Dershowitz suggested — interpreting federal statutes being their IRL job — but he and his congressional allies would much rather handle that bit of business themselves. They are only too delighted to take that technical off-ramp to avoid passing judgment on Trump's despicable conduct.

So we wind up back where we started, with impeachment meaning whatever 67 senators say it does. Oh, sure, there are some eye-rolling passages in the response about Trump's very sincere belief that the election was stolen, which is a defense to defamation and has diddly squat to do with impeachment. There's fulsome praise of how "the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people" and a laughable denial that "President Trump made any effort to subvert the certification of the results of the 2020 Presidential election." There's some 4chan flag fringe-level nonsense about it not counting if Sen. Leahy presides instead of Chief Justice Roberts. Also, the drafters of this brief might want to Google "bill of attainder," since it generally doesn't involve a trial in exactly the manner laid out by the Founders in the Constitution.

And what would a Trump legal filing be without embarrassing typos, right?


But at the end of the day, this a political issue that will come down to a vote. And we all know how that's going to shake out.

[House Brief / Trump Reply Brief]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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