Donald Trump’s lawyers on Tuesday denied that the former president had incited a crowd of his supporters to storm the US Capitol, or that he was trying to stop Congress from confirming the president of Joe Biden’s Electoral College.
The arguments in a 14-page submission from Trump’s legal team came a week before his unprecedented second indictment began in the Senate. Trump was indicted in the House last month for one article of an uprising.
Earlier Tuesday, nine Democratic House accusers shared an 80-page trial order setting out their case for Trump’s Senate conviction and preventing him from ever holding a federal office again.
The indictment alleges that Trump was ‘personally responsible’ for inciting the January 6 attack on the Capitol, which left five dead and forced an evacuation by a joint congressman, undermining Biden’s victory in the to confirm election, derailed.
During a rally outside the White House just before Congress convened, Trump urged his supporters to march to the Capitol and put Republican lawmakers under pressure to object to the election results. Trump repeatedly called on then-Vice President Mike Pence, who led the process, to take action to prevent Biden’s certification from being certified.
“If you do not fight like hell, you will not have a country anymore,” Trump told the crowd. The House’s indictment officials included the statement and numerous others from the protest as evidence of Trump using rhetoric “calculated to incite violence.”
But Trump’s lawyers, Bruce Castor Jr. and David Schoen, in their submission, denied that the expression “had anything to do with the actions at the Capitol, as it clearly deals with the need to fight for the security of the election in general.”
“It is denied that President Trump incited the crowd to act destructively,” they wrote. “It is denied that President Trump intended to interfere in the counting of election votes.”
Castor and Schoen joined Trump’s legal defense just days ago after reports that a former lawyer had left the team.
They argued that since Trump was no longer president, an indictment should be dismissed outright because the Constitution “requires a person to hold office to make an accusation.”
The House Democrats expected this argument from Trump’s team, and wrote in their own letter that ‘it is inconceivable’ that the drafters of the Constitution ‘in our last days left us virtually defenseless against a president’s betrayal, so that he may abuse, his Oath, and revolt against Congress and our electoral institutions simply because he is a lame duck. ‘
“There is no ‘January exception’ to accusation or any other provision of the Constitution,” the Democrats argued. “A president must respond in detail to his conduct in office from his first day in office until his last.”
The majority of Republicans in the Senate apparently agree with Trump’s lawyers. Forty-five GOP senators voted last week to dismiss the trial as unconstitutional.
Lawyers noted that there is precedent for an accusation after someone leaves office. They point to the 1876 case involving War Secretary William Belknap, who resigned just before the House voted to charge him with corruption charges. The House voted to indict him, but he was acquitted by the Senate.
Democrats, who hold 50 seats in the Senate, will have to persuade at least 17 Republicans to vote with them to convict Trump.
The accusation managers also accused Trump of spending months spreading lies about election fraud in the months following his loss to Biden, falsely claiming that he won the race “with a big win”.
The indictment against Trump says the former president’s statements “encouraged lawless action at the Capitol – and had predictable consequences.”
Trump’s lawyers responded that “there is insufficient evidence that a reasonable lawyer could conclude that the 45th president’s statements were accurate or not, and he denies that they were untrue.”
They added that Trump’s speech was protected by the guarantees of the Constitution: “If the First Amendment only protects the speech that the government considers popular in current American culture, it will not be protected at all.”
Castor and Schoen also dispute the choice of Senator Patrick Leahy, the Vermont Democrat and senior senator in the Senate, to preside over the trial.
Supreme Court Justice John Roberts oversaw Trump’s first indictment, as required by the Constitution. But Roberts refused to accept the same role for Trump’s second trial, as the Constitution does not have such a mandate for the indictment of a former president.
Trump’s lawyers regret in their order that Roberts “was replaced by a partisan senator who also allegedly acts as a judge while ruling on certain issues.”
‘The action of the House is therefore designed to ensure that Chief Justice John Roberts will not preside over the proceedings,’ they wrote, ‘which creates the added appearance of prejudice, as the proceedings are now under the supervision of a biased member of the Senate with a long history of public remarks unfavorable to the 45th president. ‘
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