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March 3, 2021
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Trump's impeachment trial lawyers aim to shift blame; Democrats say he has no defense

WASHINGTON (Reuters) — On the eve of his impeachment trial on a charge of inciting the deadly U.S. Capitol attack, Donald Trump’s lawyers on Monday denied he had encouraged the violence that they blamed on “a small group of criminals,” while the Democrats who will prosecute the former president said he has no valid defense.

Trump’s legal team, seeking to convince members of the 100-seat Senate not to convict the Republican or to bar him from again serving in public office, gave fresh insight into their defense strategy in a brief filed ahead of his unprecedented second impeachment trial.

The defense lawyers reiterated their argument that the Constitution does not allow for impeachment proceedings against a former president even as Democrats and many legal experts argued such a move – the first in U.S. history – is permissible. They called the trial a “brazen political act” by Democrats with a “hunger for this political theater” with the intention to “silence a political opponent and a minority party.” Trump’s four-year term ended on Jan. 20.

The charge of “incitement of insurrection” passed by the Democratic-led House of Representatives on Jan. 13 focused on Trump’s speech to a crowd of supporters shortly before hundreds of them stormed the Capitol on Jan. 6, sending lawmakers into hiding and leaving five people dead including a police officer.

“The evidence of President Trump’s conduct is overwhelming,” the nine Democratic House impeachment managers, who will serve as prosecutors, wrote in their brief. “He has no valid excuse or defense for his actions. And his efforts to escape accountability are entirely unavailing.”

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.

FILE - In this Jan. 6, 2021, file photo rioters loyal to President Donald Trump storm the U.S. Capitol in Washington. Arguments begin Tuesday, Feb. 9, in the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the U.S. Capitol on Jan. 6. (AP Photo/John Minchillo, File) [Feb-07-2021]

FILE – In this Jan. 6, 2021, file photo rioters loyal to President Donald Trump storm the U.S. Capitol in Washington. Arguments begin Tuesday, Feb. 9, in the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the U.S. Capitol on Jan. 6. (AP Photo/John Minchillo, File) [Feb-07-2021]

Trump’s lawyers said he was speaking only in a “figurative sense” when he told followers to go to the Capitol and “fight like hell” as Congress was formally certifying Democrat Joe Biden’s election victory. Trump’s use of the word “fight,” the defense 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.

Trump’s lawyers said he could not be held responsible for the actions of “a small group of criminals – who had come to the capital of their own accord armed and ready for a fight.”

Several of the roughly 200 people charged following the riot have tried to shift at least some blame onto Trump as they defend themselves in court or in the court of public opinion.

The impeachment, Trump’s lawyers wrote, “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” on Jan. 6.

Constitutional challenge

The Democratic managers ridiculed Trump’s defense argument that he was simply exercising his free speech rights under the Constitution’s First Amendment.

“The House did not impeach President Trump because he expressed an unpopular political opinion,” the Democrats wrote. “It impeached him because he willfully incited violent insurrection against the government.”

Defense 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.” A failed Jan. 26 bid to dismiss the case on that basis drew support from 45 of the 50 Senate Republicans.

A U.S. law professor and impeachment expert whose research Trump’s lawyers cited said they misrepresented his work in Tuesday’s brief.

Trump’s 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.

FILE - In this Jan. 6, 2021, file photo the Republican side, right, in the House chamber is seen as Speaker of the House Nancy Pelosi, D-Calif., and Vice President Mike Pence officiate as a joint session of the House and Senate convenes to count the Electoral College votes cast in November's election, at the Capitol in Washington. Arguments begin Tuesday, Feb. 9, in the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the U.S. Capitol on Jan. 6. (AP Photo/J. Scott Applewhite, Pool, File) [Feb-08-2021]

FILE – In this Jan. 6, 2021, file photo the Republican side, right, in the House chamber is seen as Speaker of the House Nancy Pelosi, D-Calif., and Vice President Mike Pence officiate as a joint session of the House and Senate convenes to count the Electoral College votes cast in November’s election, at the Capitol in Washington. Arguments begin Tuesday, Feb. 9, in the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the U.S. Capitol on Jan. 6. (AP Photo/J. Scott Applewhite, Pool, File) [Feb-08-2021]

A source familiar with trial discussions said it will open on Tuesday with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Trump is no longer president. Beginning on Wednesday at noon, there will be up to 32 hours of trial debate, and the Senate would vote on whether to allow witnesses if House prosecutors want any, the source said.

The Senate will pause from Friday evening to Saturday evening to honor a request by lawyer Schoen, who observes the Jewish Sabbath, and resume on Sunday.

Trump’s first impeachment trial, on charges of abuse of power and obstructing Congress arising from his request that Ukraine investigate Biden and his son Hunter, ended in February 2020 in acquittal by the then-Republican-led Senate.

(Reporting by David Morgan and Rick Cowan in Washington and Karen Freifeld in New York; Additional reporting by Makini Brice, Susan Cornwell and Jan Wolfe; Writing by Will Dunham; Editing by Scott Malone and Grant McCool)

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