On the eve of his impeachment trial on a charge of inciting the deadly 6 January attack on the US Capitol, former President Donald Trump’s lawyers on Monday denied he had encouraged violence, assailed Democrats and again challenged the constitutionality of the proceedings.
The defence team, seeking to convince members of the 100-seat Senate not to convict the Republican businessman-turned-politician or to bar him from again serving in public office, made clear in a pre-trial brief they would give no ground in his unprecedented second impeachment trial.
The trial, they said, was a “brazen political act” by Democrats intended to “silence a political opponent and a minority party.”
The impeachment charge of “incitement of insurrection” passed on 13 january by the Democratic-led House of Representatives focused on Mr Trump’s speech to a crowd of followers shortly before many of them stormed the Capitol, sending lawmakers into hiding and leaving five people dead including a police officer.
Mr Trump was speaking only in a “figurative sense,” his lawyers said, when he told followers to go to the Capitol and “fight like hell” as Congress was formally certifying Democrat Joe Biden’s 3 November election victory.
His use of the word “fight,” the defence said, “could not be construed to encourage acts of violence.”
“Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever,” they wrote.
Defence lawyers Bruce Castor, David Schoen and Michael van der Veen said the Constitution “does not provide for the impeachment of a private citizen who is not in office.”
The nine Democratic House impeachment managers directly rejected the argument and said there is "overwhelming" evidence of impeachable high crimes and misdemeanors.
"His incitement of insurrection against the United States government - which disrupted the peaceful transfer of power - is the most grievous constitutional crime ever committed by a president," they said.
"The article of impeachment properly alleges an impeachable offense under the Constitution, is not subject to a motion to dismiss (and) is within the jurisdiction of the Senate sitting as a Court of Impeachment," they wrote.
Mr Trump’s four-year term ended on 20 January.
Meanwhile, his false claims of a stolen election and his speech before the riot have left fissures in his party. Ten House Republicans voted to impeach him.
Takes aim at Democrats
The lawyers took aim at House Speaker Nancy Pelosi and the nine House Democratic lawmakers who will serve as “managers” - prosecutors - in the trial.
“The intellectual dishonesty and factual vacuity put forth by the House Managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking justice,” Donald Trump's lawyers wrote in a filing in response to a brief by the House prosecutors.
“Instead, this was only ever a selfish attempt by Democratic leadership in the House to prey upon the feelings of horror and confusion that fell upon all Americans across the entire political spectrum upon seeing the destruction at the Capitol on January 6 by a few hundred people,” Mr Trump’s lawyers wrote.
Trump supporters clash with police and security forces as people try to storm the US Capitol in Washington DC on 6 January, 2021. Source: Getty
Conviction requires a two-thirds majority, meaning 17 Republicans would need to join the Senate’s 50 Democrats in the vote.
Based on preliminary votes and public comments, there appears to be little chance of that occurring.
A failed 26 January bid to dismiss the case against Mr Trump on the basis that it would be unconstitutional to hold a post-presidency trial drew the support of 45 of the 50 Senate Republicans.
The House prosecutors rejected that argument in their brief filed with the Senate last week.
They argued for Mr Trump’s conviction to protect American democracy and national security and to deter any future president who might consider provoking violence in the pursuit of power.
Challenging the case against Mr Trump on constitutional grounds would enable Senate Republicans to vote against conviction without directly defending his speech.
Mr Trump’s lawyers asserted on Monday that the siege had nothing to do with his speech, saying the rioters stormed the Capitol “of their own accord and for their own reasons.” Lawyers for at least some of the people charged in the attack have said these defendants acted on Mr Trump’s encouragement. Mr Trump’s lawyers also said his remarks were protected by the Constitution’s First Amendment right to free speech.
Trial parameters
Donald Trump is the first US president to be impeached twice and the first to face trial after leaving office.
A source familiar with the discussions said the trial will open with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Mr Trump is no longer president.
The trial will then feature up to 32 hours of debate beginning on Wednesday at noon, the source added.
Supporters of Donald Trump climbing the west wall of the US Capitol in Washington during the 6 January riot. Source: AP
If the House prosecutors decide they want to call witnesses, the Senate would debate and hold a vote on whether witnesses will be allowed, the source said.
Both parties may have an interest in completing the trial expeditiously.
Democrats hold slim majorities in both the House and Senate, and the trial could make it more difficult for Congress to pass Joe Biden’s $1.9 trillion COVID-19 relief plan and complete the confirmation of nominees to government posts.
Mr Trump’s first impeachment trial, on charges of abuse of power and obstructing Congress arising from his request that Ukraine investigate Mr Biden and his son Hunter, ended last year in an acquittal by the then-Republican-led Senate.
The Senate plans to pause the trial from Friday evening to Saturday evening to honour a request by lawyer Schoen, who observes the Jewish Sabbath, and will then resume on Sunday.
