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Trump didn't encourage Capitol violence, his lawyers say in final legal brief before impeachment trial

Donald Trump's lawyers argued in a legal brief filed Monday that those who stormed the U.S. Capitol on Jan. 6 to prevent the certification of President Joe Biden's victory did so of their own accord, one day before his impeachment trial in the Senate is set to begin.

Unprecedented second Senate impeachment trial of Trump is scheduled to begin Tuesday

U.S. President Donald Trump looks on at the end of his speech during a Jan. 6 rally in Washington to contest the certification of the 2020 U.S. presidential election results. (Jim Bourg/Reuters)

Donald Trump's lawyers argued in a legal brief filed Monday that those who stormed the U.S. Capitol on Jan. 6 to prevent the certification of President Joe Biden's victory did so of their own accord, the day before his impeachment trial in the Senate is set to begin.

A speech made by Trump in the hours before the riot "was not an act encouraging an organized movement to overthrow the United States government," his lawyers said.

The brief — from Trump's legal team consisting of Bruce Castor, David Schoen and Michael van der Veen — asserts that Trump's speech did not encourage "an insurrection, a riot, criminal action, or any acts of physical violence whatsoever."

"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, was not and could not be construed to encourage acts of violence," they write.

Trump's speech was protected by the First Amendment, they write, and his reference to "fight" meant fighting for election security.

Trump's legal team —  which accused the Democrats of having a "hunger for … political theatre" — also continued to argue, as in a previous brief, that it is unconstitutional to hold a trial for a former president who is now a private citizen.

That argument appears to have little support among constitutional experts. A prominent conservative lawyer, Charles Cooper, was the latest to publicly reject that view, writing in an opinion piece published in the Wall Street Journal on Sunday that the constitution permits the Senate to try a former official.

But challenging the case against Trump on such grounds would enable his fellow Republicans in the Senate to vote against conviction without directly defending his inflammatory speech to supporters shortly before the riot.

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The nine Democratic House of Representatives lawmakers who will serve as prosecutors hope to persuade members of the 100-seat Senate to convict Trump and ultimately bar him from holding public office again. Trump ended his four-year term in office on Jan. 20, having lost the Nov. 3 election to Biden.

'The most grievous constitutional crime'

The impeachment managers said on Monday in their own brief that evidence against Trump is overwhelming and that he has no defence for his actions.

In a brief, the managers of the Democratic-led impeachment said Trump's incitement of insurrection is "the most grievous constitutional crime ever committed by a president."

Of the argument that Trump wanted to fight merely for election security, the impeachment managers wrote: "To call these responses implausible would be an act of charity."

The Democratic-led House impeached Trump on Jan. 13 on a single charge of inciting insurrection, focused on that speech. He is the first U.S. president to be impeached twice and also the first to face trial after leaving office.

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The Democrats also pointed out in their brief that they impeached Trump while he was still president. The Senate majority leader at the time, Republican Mitch McConnell, chose not to reconvene the chamber to begin a trial in the days after the impeachment.

"There is no 'January Exception' to the Constitution that allows Presidents to abuse power in their final days without accountability," the managers wrote.

During the Jan. 6 speech, Trump repeated false claims he had made for over two months that the election was fraudulent and exhorted supporters to march on the Capitol, telling them to "stop the steal," "show strength" and "fight like hell." The rampage interrupted the formal congressional certification of Biden's election victory and sent lawmakers into hiding for their own safety, with five people dying at the scene that day.

Enhanced security remains for trial

A failed bid last month to dismiss the case against Trump on the basis that it would be unconstitutional to hold a post-presidency trial drew the support of 45 of the 50 Republicans in the Senate. 

To secure a conviction, 17 Republicans would need to join the Senate's 50 Democrats in the vote, a daunting hurdle. But even with an acquittal, the Democrats could conceivably damage Trump politically to a degree that a potential presidential bid for 2024 becomes untenable.

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 last year in acquittal by the then-Republican-led Senate. 

Both parties may have an interest in completing the trial expeditiously.

Maryland congressman Jamie Raskin, left, the lead impeachment manager from the House of Representatives, leads colleagues to deliver the article of impeachment to the Senate on Jan. 25. (Melina Mara/Reuters)

Democrats hold slim majorities in both the House and Senate, and the trial could make it more difficult for Congress to pass Biden's $1.9-trillion US COVID-19 relief plan and complete the confirmation of nominees to government posts. The Republicans, several who repeated Trump's unsubstantiated claims of electoral fraud, would rather go on the offensive over any early failings of the Biden administration.

The Senate will pause the impeachment trial from Friday evening to Saturday evening to honour a request by Schoen, who observes the Jewish Sabbath, a spokesperson for Senate Democratic leader Chuck Schumer said on Sunday.

Meanwhile, a spokeswoman for U.S. Capitol Police, said the heightened security that resulted after the Jan. 6 events would remain in place at least through Trump's trial.

"The Department's current security posture continues to demand that we operate at a high-level of readiness for the upcoming Senate impeachment trial and the continued threats directed at the Congress and the Capitol," said Eva Malecki.

As former U.S. president Donald Trump's impeachment trial gets underway this week for his role in inciting the U.S. Capitol attack, some say the country's political institutions are at stake. To unpack the issue, Matt Galloway speaks with Ken Mack, the Lawrence D. Biele professor of law and affiliate professor of history at Harvard University, and Karen Tumulty, a political columnist for the Washington Post. 20:13

A 2.5-metre-tall fence now encircles the U.S. Capitol, topped with barbed wire. Thousands of National Guard troops patrol the halls and a gilded portion of one staircase is bandaged over.

A Capitol Police member died of injuries from the attack and a total of 125 officers of its 2,300-strong force were assaulted during the rampage.

With files from CBC News

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