Former President Donald Trump’s lawyers on Monday argued that the House impeachment managers’ article of impeachment against him for allegedly inciting the breach of the Capitol on Jan. 6 is constitutionally flawed, will not result in a conviction, and infringes on his First Amendment rights.
In a 78-page court filing, Trump attorneys David Schoen, Bruce Castor, and Michael T. van der Veen argued that the Senate cannot convict a former president, saying the House’s impeachment last month is problematic because it joined several alleged offenses into a single article of impeachment—rather than several articles.
“When the Senate undertakes an impeachment trial of a private citizen, it is acting as judge and jury rather than a legislative body,” his lawyers said in a filing on Monday.
Trump’s lawyers also dismissed claims that the former president did nothing as protestors breached the Capitol building during the Joint Session of Congress, saying there was a “flurry of activity” in the administration to get more security to the Capitol.
The impeachment “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,” Trump’s lawyers wrote. “Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers who stormed the Capitol, the Speaker of the House and her allies have tried to callously harness the chaos of the moment for their own political gain.”
His lawyers, meanwhile, disputed the assertion that Trump’s “fight like hell” remarks during a rally to supporters incited violence.
“Of the over 10,000 words spoken, Mr. Trump used the word ‘fight’ a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence,” Trump’s lawyers wrote, arguing that the former president was using “fight” in the metaphorical sense of the word.
“To characterize this statement alone as ‘incitement to insurrection’ is to ignore, wholesale, the remainder of Mr. Trump’s speech that day, including his call for his supporters to ‘peacefully’ making their ‘voices heard,'” they added.
On Jan. 6, separately, Trump called on demonstrators to “peacefully and patriotically” make their voices heard.
Democratic impeachment managers led by Rep. Jamie Raskin (D-Md.) are expected to make the argument that Trump was “singularly responsible” for the Capitol breach, saying that the former president should not be able to hold office in the future.
“The Framers’ intent, the text of the Constitution, and prior Congressional practice all confirm that President Trump must stand trial for his constitutional crimes committed in office,” House Democrats wrote in response on Monday. “Presidents swear a sacred oath that binds them from their first day in office through their very last. There is no ‘January Exception’ to the Constitution that allows Presidents to abuse power in their final days without accountability.”
The impeachment managers are unlikely to convince at least two-thirds of the Senate, which has a 50-50 split between Republicans and Democrats. Last month, during a procedural vote, 45 GOP senators voted against holding the trial.
On Sunday, Sen. Rand Paul (R-Ky.) said the trial has no chance of success.
The Senate has not yet officially agreed on a framework for the trial, which is slated to start Tuesday. The trial will be presided over by Sen. Patrick Leahy (D-Vt.), the president pro tempore of the Senate, rather than Supreme Court Chief Justice John Roberts.