Sides stake positions for Trump trial

Lawyers for former president Donald Trump and Democrats who will seek to prosecute him on a single impeachment charge filed briefs on Tuesday with the Senate one week before the trial is scheduled to begin.

In their 14-page brief, Trump's new legal team's defense against the impeachment charge rests basically on two arguments: It is unconstitutional for the Senate to put an ex-president on trial, and Trump's remarks to supporters shortly before they stormed the Capitol on Jan 6 were protected under the Constitution's First Amendment right to free speech.

In their 80-page brief, the House's nine Democrat impeachment managers rejected both defenses.

Trump's attorneys also will argue that the House's impeachment article charging him with inciting an insurrection was improperly drafted. They said the House skipped hearings and took only a week to impeach him after the siege at the Capitol.

The argument by Trump's lawyers David Schoen and Bruce Castor that the Senate lacks constitutional authority to put an ex-president on trial is expected to be a pivotal one in building Republican support against a conviction.

Last week, 45 of the 50 Republican senators voted to support a resolution that sought to declare that the impeachment trial is unconstitutional because Trump is no longer in office. The resolution failed in the 100-member Senate. It takes a two-thirds vote — 67 senators — to convict.

A report released in mid-January from the Congressional Research Service, the public-policy research arm of Congress, concluded that while the matter of impeaching former officials is open to debate, the weight of scholarly authority agrees that they may be impeached and tried.

"There is no 'January Exception' to impeachment or any other provision of the Constitution," the House Democrats wrote. "A president must answer comprehensively for his conduct in office from his first day in office through his last."

The Democrats also cited examples in which the Senate had tried officials who had already left office — none of them presidents. They argued, "because President Trump was in office at the time he was impeached", the Senate has no choice but to proceed.

"If the Senate does not try President Trump (and convict him) it risks declaring to all future Presidents that there will be no consequences, no accountability, indeed no Congressional response at all if they violate their Oath to 'preserve, protect and defend the Constitution' in their final weeks," the managers wrote.

The impeachment managers also argued that Trump's embrace of unfounded accusations that the 2020 election was stolen from him helped foment his supporters' rushing of the Capitol. They wrote that Trump "summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue".

"The 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect," the brief states.

"Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President's statements were accurate or not, and he therefore denies they were false," his attorneys said.

The Democrats charged that Trump was "singularly responsible" for the mayhem, accusing him of "a betrayal of historic proportions". They argued that he is guilty of high crimes and misdemeanors, the threshold for conviction laid out in the Constitution, primarily because he used the powers of his office to advance his personal political interests at the expense of the nation.

Trump's lawyers disputed the Democrats' characterization of Trump's remarks and his role in the riot, denying that he had ever endangered national security. When he told his followers to "fight like hell"', they said, he was talking about "election security in general".

The impeachment managers argued that Trump isn't protected by that provision of the First Amendment, writing that it was never intended to allow a president to "provoke lawless action if he loses at the poll".

Trump's defense team also denied that the president sought to pressure state election officials to overturn Joe Biden's victory, addressing an episode cited in the House impeachment article in which he called Georgia Secretary of State Brad Raffensperger early this year to discuss that state's election results.

They argued that Trump's exhortation during the Jan 2 phone call that Raffensperger "find" the votes to overturn Biden's victory was simply an expression of the president's belief that a careful examination of the evidence would produce a more accurate vote count that favored Trump.