Lawyers for Donald Trump have branded the impeachment case against him as an act of “political theatre” by Democrats.
They also accused the Democrats of exploiting the chaos and trauma of last month’s riot at the US Capitol for their own party’s gain.
In a brief filed on the eve of the Senate impeachment trial, lawyers for the former president attacked the case on multiple grounds, foreshadowing legal and constitutional arguments they intend to present when the trial opens in earnest on Tuesday.
They suggest that Mr Trump was simply exercising his First Amendment rights when he disputed the election results and argue that he explicitly encouraged his supporters to have a peaceful protest and therefore cannot be responsible for the actions of the rioters.
They suggest the Senate is not entitled to try Mr Trump now that he has left office, an argument that is contested by even some conservative legal scholars, and they deny that the goal of the case is about pursuing justice.
“Instead, this 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,” the lawyers wrote in a brief obtained by The Associated Press.
“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,” they added.
The trial will begin in earnest on Tuesday with a debate and vote on whether it is even constitutional to prosecute the former president, an argument that could resonate with Republicans keen on voting to acquit Mr Trump without being seen as condoning his behaviour.
Under a draft agreement between Senate majority leader Chuck Schumer and Senate Republican leader Mitch McConnell, the proceedings will break on Friday evening for the Jewish Sabbath at the request of Mr Trump’s defence team and resume on Sunday. There will probably be no witnesses, and the former president has declined a request to testify.
Mr Trump’s second impeachment trial is opening with a sense of urgency — by Democrats who want to hold him accountable for the violent Capitol siege and Republicans who want it over as quickly as possible.
The proceedings are expected to diverge from the lengthy, complicated trial that resulted in Mr Trump’s acquittal a year ago on charges that he privately pressured Ukraine to dig up dirt on a Democratic rival Joe Biden, now the president. This time, Mr Trump’s rally cry to “fight like hell” and the storming of the Capitol played out for the world to see. Mr Trump very well could be acquitted again, and the trial could be over in half the time.
Under the terms of the trial being negotiated, it would launch first with a debate over its constitutionality, a key argument of the former president’s defence. Senator Rand Paul forced a vote on the issue last month, and senators will again be confronted with a debate and vote.
Opening arguments would begin Wednesday at noon, with up to 16 hours per side for presentations.
Mr Trump is the first president to be twice impeached, and the only one to face trial after leaving the White House.
The Democratic-led House approved a sole charge, “incitement of insurrection”, acting swiftly one week after the riot, the most violent attack on Congress in more than 200 years. Five people died including a woman shot by police inside the building and a police officer who died of injuries the next day.
So far, it appears there will be few witnesses called, as the prosecutors and defence lawyers speak directly to senators who have been sworn to deliver “impartial justice” as jurors. Most are also witnesses to the siege, having fled for safety that day as the rioters broke into the Capitol and temporarily halted the electoral count certifying Mr Biden’s victory.
Instead, House managers prosecuting the case are expected to rely on the trove of videos from the siege, along with Mr Trump’s incendiary rhetoric refusing to concede the election, to make their case. His new defence team has said it plans to counter with its own cache of videos of Democratic politicians making fiery speeches.
Democrats argue it is not only about winning conviction, but holding the former president accountable for his actions, even though he is out of office. For Republicans, the trial will test their political loyalty to Mr Trump and his enduring grip on the party.
Initially repulsed by the graphic images of the siege, Republican senators including Mr McConnell denounced the violence and pointed a finger of blame at Mr Trump. But in recent weeks party senators have rallied around Mr Trump, arguing his comments do not make him responsible for the violence. They question the legitimacy of even conducting a trial of someone no longer in office.
On Sunday, Republican Senator Roger Wicker, of Mississippi, described Mr Trump’s impeachment trial as a “meaningless messaging partisan exercise”.
Senators were sworn in as jurors late last month, shortly after Mr Biden was inaugurated, but the trial proceedings were delayed as Democrats focused on confirming the new president’s initial Cabinet picks and Republicans sought to put as much distance as possible from the bloody riot.