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Former Trump defense attorney on why the impeachment trial is unconstitutional

The Senate on Tuesday voted 56-44 that putting Donald Trump on trial is constitutional, a move refuted by the former president's legal team. Robert Ray was a member of Trump’s defense team from his first Senate impeachment trial and an independent counsel in the Whitewater investigation into President Clinton. He joins Judy Woodruff to discuss why he thinks the latest trial is unconstitutional.

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  • Judy Woodruff:

    And now I'm joined by a member of Mr. Trump's defense team from his first Senate impeachment trial. He's Robert Ray. He was also independent counsel during the Whitewater investigation into President Clinton.

    Robert Ray, thank you for joining us today.

    They did take a vote in the Senate, and the — it was 56 to 44. They are going to proceed. The argument prevailed that it is constitutional to have this trial.

    But you think that's a mistake. Why?

  • Robert Ray:

    I think the proceedings are obviously like the pregame festivities.

    I think there's a structural constitutional argument still to be made that was made today, and that is that, if the only purpose served by this impeachment, upon conviction, is the remedy that precludes Donald Trump from ever running for public office again, it strikes me that that's a political judgment that is more appropriately reserved to the American people and the voters, close to 75 million of whom spoke in the last election, and not one that should be made by 50 senators from the Democratic Party, plus possibly 17 senators from the Republican Party.

    I think that's basically Senator Marco Rubio's view from Florida. And I think he's right about that. So, I think that's a structural constitutional argument as to why presidential impeachments, once the president has left office, are not a good idea. I don't think that's healthy for the country in the future.

    And when the shoe is on the other foot, as it invariably will be, I'm not sure that this is the kind of precedent that any party would like to see.

    But, look, the decision has been made. There was a difference of opinion. A majority vote carries, and we now proceed to trial.

  • Judy Woodruff:

    Well, I'm sure you know that the argument not only by the House managers, by but a number of constitutional scholars, many of them conservative, is that because the Constitution gives the Senate the right, the role of carrying out not just removal from office, but the decision on whether someone — can hold office again, they're basing the argument on that.

    But let's move on to what the trial will be about in the days to come. How strong do you believe the arguments are that President Trump had a role, a direct role, in inciting the insurrection at the Capitol?

  • Robert Ray:

    Well, that's not enough.

    I mean, the role that has to be shown, so that it's not contrary to the First Amendment, is that there was a direct call for violent or lawless action. I don't know of any evidence that I have seen so far that would suggest that kind of coordination with the president — the then president of the United States.

    And I know that the majority leader, Chuck Schumer, has promised that there will be new evidence presented at trial. I will be very interested to see if, actually, that kind of new evidence is presented, because, if it's not, this is an impeachment that should fail as a legal matter, because there's not going to be sufficient proof of insurrection, a federal offense.

    I mean, after all, an impeachment is about impeaching for high crimes and misdemeanors. And the problem with the last — the first impeachment of President Trump is that a crime wasn't charged at all. The problem with this impeachment is that, although a crime has been charged, the president didn't commit the crime that was charged.

    A statement or speech, like, fight like hell, otherwise, you're not going to get your country back, is not the same as a call for violent action. And if you can't show that, under Brandenburg v. Ohio, it violates the First Amendment.

    So, I think the president will have a strong defense under the Constitution, under the First Amendment as to why he should not be convicted.

  • Judy Woodruff:

    So, just elaborate on that. What is it you're saying the president would have had to have done or said that would have made him culpable of incitement?

  • Robert Ray:

    He has to call for violent action or call for illegal conduct.

    It's not enough to just say, well, there's encouragement. There is a very broad protection, particularly for political speech. The Brandenburg decision from more than 50 years ago is clear on that. And it's why there have been precious few prosecutions under federal law in this area, because it invariably bumps up against the First Amendment.

    And, apparently, the ACLU, as I understand it from Professor Dershowitz, shares my view that this prosecution by impeachment in the Senate is unconstitutional under the First Amendment.

    I expect you will hear more about that as the defense unfolds in the coming days.

  • Judy Woodruff:

    Well, we will be listening.

    And we certainly do appreciate you joining us today.

    Robert Ray, thank you.

  • Robert Ray:

    Thanks very much.

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