the gingerbread man defense

The House of Representatives has filed its trial memorandum, outlining the case it will present to the Senate in the looming repeachment trial of Comrade former-president Donald J. Trump. You can read the memorandum here.

You can also read the answering brief presented by Trump’s attorneys. His most recent attorneys, not the attorneys who quit over the weekend, or the attorneys who represented him in his last impeachment and declined to represent him in the repeachment. (Also, yes, I know, ‘repeachment’ isn’t an actual word, but I’d argue that we’ve never needed it to be a word because until now there’s never been anybody in US history who ever needed to be repeached.)

I’ve read both the House’s memorandum and Trump’s response. In order to save you the effort, I’ll summarize them here (I’m a goddamn saint, is what I am). But here’s the TL;DR version of Trump’s defense:

Run away, run away, fast as you can!
You can’t catch me, I’m the Gingerbread Man!

First, the House managers set the stage, noting the US Constitution says the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Trump’s response: admitted in part, denied in part, not relevant. Yes, the Constitution says Congress can impeach and try POTUS. But hey, guess what, Trump isn’t POTUS, and therefore it doesn’t apply to him.

Second, the managers say the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from holding any federal office.

Trump’s response: admitted in part, denied in part, not relevant. Yes, the Constitution says that, but Trump didn’t do any insurrectioning or rebelling. Also, he doesn’t hold any federal office, so there.

Third, the managers say Trump violated his constitutional oath to “faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed.”

Trump’s response: denied, and irrelevant. They claim Trump totally faithfully executed his duties as POTUS, and he never ever not even once did any high Crimes or Misdemeanors. Also, he’s still not POTUS.

Fourth, the managers say Trump DID SO engage in high Crimes and Misdemeanors, on account of inciting violence against the government by repeatedly lying about the Presidential election results and telling folks the results shouldn’t be “accepted by the American people or certified by State or Federal officials.”

Trump’s response: admitted in part, denied in part, and irrelevant. Trump, they say, only exercised his First Amendment right “to express his belief that the election results were suspect.” Plus, there isn’t sufficient evidence to show that Trump knew his lies were lies, and besides, he believes them. Also? That First Amendment thing again.

Fifth, the managers point to Trump’s speech to the crowd at the Capitol ellipse, in which he repeated his lies, claiming “We won this election, and we won it by a landslide.”

Trump’s response: admitted in part, denied in part. Yes, Trump spoke to the crowd. Yes, he told them he’d won the election. But that was just Trump being Trump and expressing his opinion. First Amendment, and all that.

Sixth, the managers say Trump willfully made statements that “encouraged – and
foreseeably resulted in – lawless action” at the Capitol building. That action resulted in an attempt to “interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election.” You know, on account of all the rioting and violence and murder.

Trump’s response: admitted in part, denied in part. Yes, some people “unlawfully breached and vandalized the Capitol” and yes, “people were injured and killed.” But POTUS denies they did it on account of what he said. Also, Trump never “intended to interfere with the counting of Electoral votes.”

Seventh, the managers assert that Trump’s behavior on January 6, 2021 were part of “his prior efforts to subvert the certification of the results of the 2020 Presidential Election.” Those efforts included calling Brad Raffensperger, the Georgia Secretary of State, and urging him to ‘find’ enough votes to overturn the Georgia Presidential election results. Also, Trump sorta kinda threatened Raffensperger if he failed to ‘find’ those votes.

Trump’s response: admitted in part, denied in part, denied as irrelevant. Yes, Trump spoke to Raffensperger, but not to “subvert the certification of the results of the 2020 Presidential election.” He only wanted Raffensperger to do a really really really thorough count. Also, the term ‘find’ is taken out of context. Also too, Trump never really threatened Raffensperger. And besides, none of that matters because Trump still isn’t POTUS.

Eighth, the House managers assert that Trump, by doing all the shit he did, “gravely endangered the security of the United States and its institutions of Government.” Also, he “threatened the integrity of the democratic system.” Also too, he “interfered with the peaceful transition of power.” Also too plus, he “imperiled a coequal branch Government” by sending murderous rioters to the Capitol building, none of which he should have done because it was a betrayal of his trust as President.

Trump’s response: Denied, and denied as irrelevant. Nope, Trump never endangered the security of the United States, never endangered its institutions of Government, never threatened the integrity of the democratic system, never interfered with the peaceful transition of power, never imperiled a coequal branch Government, and never betrayed his trust as President. In fact, Trump “performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people.” Also, he’s still not POTUS, so this is irrelevant.

Trump’s current crop of lawyers sum up his defense, claiming 1) the Senate doesn’t have jurisdiction to try him because they can’t remove him from an office he doesn’t hold, that 2) the House denied him due process by impeaching him without giving him an opportunity to defend himself, that 3) even attempting to try him under those circumstances is equivalent to a bill of attainder (okay, quick note: a bill of attainder is a legislative act that declares a person guilty of a crime, and punishing them, without the benefit of a trial), and 4) the Chief Justice of the Supreme Court isn’t acting as the trial judge (which is true, because the Chief is only required to act as judge in an impeachment of a sitting president), and 5) the impeachment is constitutionally flawed because it includes multiple allegedly impeachable offenses in a single article (they seem to be suggesting there should be MORE articles of impeachment), and 6) there’s that whole First Amendment business, which is being ignored.

In other words, Trump is saying, “I didn’t do it. But even if I did do it, it was legal. And even if it wasn’t legal, you shouldn’t do anything about it. And even if you should do something about it, you can’t. It’s basically the Gingerbread Man defense.

Run away, run away, fast as you can!
You can’t catch me, I’m the Gingerbread Man!

4 thoughts on “the gingerbread man defense

  1. But….hasn’t Trump claimed all along that he still IS the POTUS. Most of his followers still believe he is the legitimate POTUS. If he does believe that, then he then has NO defense.

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    • Yes, Trump continues to claim he actually won the election. Normally, claims in contradiction to reality aren’t really a defense against crimes committed in reality. But we left normality in the dust four years ago.

      The reality is this: Trump doesn’t even need a defense. He’s got 50 Republicans in the Senate, almost all of whom have never held him accountable for anything. That’s the Gingerbread Man defense — they let him run, we can’t catch him.

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  2. Pingback: a strong adverse inference | gregfallis.com

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