President Donald J. Trump walks with Presidential Advisor Ivanka Trump and his son Donald J. Trump Jr. to board Air Force One at Dobbins Air Reserve Base in Marietta, Georgia, Tuesday, Jan. 4, 2021, for their return flight to Joint Base Andrews, Maryland. (Official White House photo by Tia Dufour)
President Trump’s personal attorney Rudy Giuliani said that as a member of the president’s defense team in his upcoming impeachment trial he’s preparing to argue that the president’s claims of voter fraud did not constitute incitement to violence because the claims are true.
“They basically claimed that anytime [Trump] says voter fraud, voter fraud — or I do, or anybody else — we’re inciting violence; that those words are fighting words because it’s totally untrue,” Giuliani told ABC News Chief White House Correspondent Jonathan Karl. “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.”
Republican strategist Karl Rove told “Fox News Sunday” he thinks Giuliani has “charted a very bad course for the president” that is likely to persuade at least 17 Republicans to side with Democrats and convict Trump.
“Well, those charges and the so-called experts that the campaign has mustered to advocate them have been rejected by over 50 courts with judges appointed by President Trump, President Obama, Present Bush, President Clinton, and I think even one Reagan justice,” he said.
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“So if it’s the Rudy Giuliani defense, there is a strong likelihood that more than 17 Republicans will (vote to convict) because essentially that argument is this was justified, the attack on the Capital and the attempt to end the congressional hearing on certifying the election was justified because all these charges are true, and frankly they aren’t,” he said.
Giuliani and many of Trump’s supporters have argued the courts did not dismiss the more than 60 cases based on the merits. And they point, among other things, to some 3,000 affidavits from witnesses of vote fraud.
Rove insisted the Trump team has been “given every opportunity to prove them in a court of law and have failed to do so.”
“I think it really boils down to what’s the defense that the president is going to make, and if it is Rudy Giuliani’s defense, I think it raises the likelihood of more than 17 Republicans voting for conviction.”
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Constitutional law scholar Jonathan Turley said the best course for Trump might be to refuse to recognize any Senate trial.
“For a notorious counterpuncher, avoiding a fight might be the most difficult decision of all, particularly because he has obvious defenses. First, he was denied due process when the House held an unprecedented ‘snap impeachment’ without a hearing or inquiry even though a trial likely would not occur immediately. Even a one-day hearing would have allowed evidence to be discussed as well as a formal request for a response,” Turley wrote on his website.
“Second, the impeachment article is poorly crafted and poorly conceived, built around assertions that Trump’s Jan. 6 speech to supporters was an ‘incitement to insurrection.’ His speech raised potentially impeachable grounds; I condemned it as he gave it and opposed his challenge of electoral votes from the outset. But as I wrote previously, it would have been far better to censure him for it in a bipartisan, bicameral resolution,” he said.
Trump, wrote Turley, “can legitimately argue that a private citizen cannot be impeached and that the Senate cannot remove a person from office who has already left.”
“Article I, Section 4, of the Constitution states that the sole purpose of an impeachment trial is whether ‘the president, vice president and all civil officers of the United States, shall be removed from office.’ While the Senate can later add a disqualification from holding federal office again, that is only after removal is decided — because it is a question of the penalty, not the purpose of the proceeding,” he said.
“The Constitution refers to a present-tense status of ‘the president.’ That status is key to other provisions bestowing official powers and privileges, which do not linger after leaving office. No one would argue that Trump could continue to exercise those powers once President-elect Biden is sworn in. Yet a Senate trial would insist that, while Trump has no continuing powers, he remains subject to continued penalties tied to the office. Moreover, the stated purpose of the impeachment trial is whether a president ‘shall be removed.’ Thus, the only person constitutionally subject to an impeachment trial would be the sitting president, Joe Biden,” Turley said.
“If the Senate does not dismiss the case in a threshold vote, Trump can treat the proceeding as an extraconstitutional act because he is no longer subject to removal. If the Senate were to convict, he would have standing to challenge any disqualification from future federal offices. He could well prevail, and the Senate would have created a precedent against itself: history’s first judicial reversal of an impeachment verdict,” he wrote.
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