Former President Donald Trump’s attorneys said the Jan. 6 insurrection at the Capitol was perpetrated by people “of their own accord and for their own reasons,” and not because of Trump’s call to march on Congress and “fight like hell.”
In a 78-page legal brief ahead of the Senate’s impeachment trial, Trump’s attorneys argued the House’s effort is constitutionally deficient and cannot result in his conviction on a charge of inciting the Jan. 6 insurrection at the Capitol. They say Democrats declared Trump’s free speech impeachable and link it to what they say is a years-long drive to punish him.
Trump’s lawyers also argued that the Senate cannot convict a former president, and that the House’s impeachment charge is flawed because it groups multiple alleged offenses into a single article.
“[I]ndulging House Democrats hunger for this political theater is a danger to our Republic [sic] democracy and the rights that we hold dear,” Trump’s attorneys Bruce Castor, David Schoen and Michael van der Veen concluded.
The brief contains sharply partisan rhetoric, unusual for a legal document. Trump’s lawyers write that House Democrats are suffering from “Trump Derangement Syndrome” and are seeking to “silence a political opponent and a minority party.”
It comes as the Senate is slated to begin the trial on Tuesday — the first such proceeding for a former president, and the second for Trump personally. The House impeached Trump last month for his role in inciting the Jan. 6 riots, which took place while Congress was certifying President Joe Biden’s Electoral College victory.
The filing described some of Trump’s conduct — like pressuring Georgia Secretary of State Brad Raffensperger to “find” additional votes to overturn Biden’s win — as purely political. And it cites discredited, partisan sources like The Gateway Pundit by pushing dubious claims that elements of the Jan. 6 insurrection were actually anti-Trump forces, assertions that federal law enforcement and intelligence officials have consistently debunked.
The brief also rejects Democrats’ contention that Trump sat on his hands during the riots while the violence festered. Rather, they described him as “horrified” by what he witnessed and said there was a “flurry of activity” inside the White House that was impeded by “complex procedural elements.”
However, the brief does not contend with evidence that Trump was calling senators to continue his attack on the election results during the riots, or his tweet criticizing then-Vice President Mike Pence for upholding the election results even after he had fled the Senate chamber during the riots.
Democrats appear poised to conduct a trial without calling witnesses, which could impede their ability to rebut some of the factual claims made by Trump’s team about what happened behind the scenes during the riots.
Still, Senate leaders have reached a tentative agreement allowing the House managers to seek a debate and votes on witness testimony. Several Senate Democrats have indicated they have no interest in dragging out the trial, and have noted that they themselves were witnesses to the insurrection on Jan. 6.
Under the tentative agreement, the Senate will hold a debate Tuesday on the constitutionality of the trial — a central theme of Trump’s defense — and will begin opening arguments on Wednesday. Each side will have 16 hours to present its case.
Democrats intend to lean heavily on the evidence collected in FBI affidavits charging hundreds of Capitol insurrectionists, many of whom cited Trump’s comments as tacit permission to storm the Capitol. Though Trump’s team notes that some elements of the insurrection were planned ahead of Trump’s Jan. 6 speech, urging a crowd of thousands to march on the Capitol, Democrats have contended Trump’s pattern of conduct for months — baseless claims that the election was stolen from him — created the conditions that led to the riots.
One of the latest filings, by Proud Boys organizer Ethan Nordean on Monday morning, cited Trump’s commentary as a driving force behind the Capitol breach.
“Egged on by Donald Trump, other politicians, his legal advocates, and news media these people believed the election had been stolen,” Nordean’s defense attorneys argued.
The bulk of Trump’s trial brief is largely a technical argument against the constitutionality of punishing a former president. Trump’s team suggests that the impeachment power can only be applied to sitting officeholders. The House, buttressed by legal scholars across the political spectrum and scattered precedents, have noted that the Constitution’s power to “disqualify” Trump from holding office again has been used sporadically against former officeholders.
Democrats have noted that the disqualification power would have little value if targets could simply resign moments before it is deployed in order to avoid consequences.
Last month, 45 out of 50 Republican senators voted for a motion declaring the impeachment trial unconstitutional because Trump no longer holds federal office. The vote was seen as a harbinger for the eventual vote on whether to convict Trump. Conviction would require the support of at least 17 GOP senators to meet the two-thirds threshold.
The Trump brief makes clear that even in the unlikely event of a conviction, he would attempt to overturn the verdict — itself an unprecedented effort. Trump’s lawyers say the conviction would be “unauthorized” and “non-binding” — and that if Trump runs for president again, it “would be challenged in a court of law.”
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