Trump's lawyers challenge constitutionality of post-White House impeachment trial

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  • President Donald Trump's impeachment trial is scheduled to begin on Tuesday, 9 February.
  • He is charged of inciting the deadly attack on the Capitol last month.
  • Ahead of the trial, Trump's lawyers have denied that he encouraged violence.

The day before former President Donald Trump's impeachment trial begins on a charge of inciting the deadly attack on the Capitol last month, his lawyers on Monday denied he had encouraged violence and challenged the constitutionality of the trial now that he has left office.

Trump's lawyers accused the nine Democratic lawmakers known as "impeachment managers" who will prosecute him of "intellectual dishonesty and factual vacuity" in their portrayal of Trump's fiery 6 January speech to a crowd of his supporters before hundreds stormed the Capitol as Congress was meeting to formally certify President Joe Biden's election win.

A source familiar with the discussions said the trial will open with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Trump is no longer president.

The trial will then feature up to 32 hours of debate beginning on Wednesday at noon, the source added.

The nine Democrats who will serve as prosecutors hope to persuade members of the evenly divided 100-seat Senate to convict Trump and bar him from ever again holding public office. Trump, a Republican, ended his four-year term on 20 January having lost the 3 November election to Biden.

Trump's lawyers said:

The intellectual dishonesty and factual vacuity put forth by the House Managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking 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," Trump's lawyers wrote.

They underscored their view that a post-presidency trial is not permitted under the Constitution.

A failed 26 January bid 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.

The House prosecutors rejected that argument in their brief filed with the Senate last week. They argued for Trump's conviction to protect American democracy and national security and to deter any future president who might consider provoking violence in the pursuit of power. They argued that Trump had a "singular responsibility" for the Capitol attack.

To secure a conviction, 17 Republicans would need to join the Senate's 50 Democrats in the vote, a daunting hurdle.

Possible debate on witnesses

If the House prosecutors decide they want to call witnesses, the Senate would debate and hold a vote on whether witnesses will be allowed, the source said.

The Democratic-led House impeached Trump on 13 January. He is the first US president to be impeached twice and the first to face trial after leaving office.

In his 6 January speech, Trump repeated false claims 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, sent lawmakers into hiding for their own safety and left five people dead including a police officer.

Trump's lawyers said he used the word fight in a "figurative sense" that "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.

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

Both parties may have an interest in completing the trial expeditiously. Biden since taking office has called for healing and unity in a nation that was left deeply polarized after Trump's presidency.

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 Covid-19 relief plan and complete the confirmation of nominees to government posts.

Trump's false claims of a stolen election and his speech before the riot have left fissures in his party. Ten Republicans joined House Democrats in voting to impeach Trump.

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.

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

The trial will them resume on Sunday, the source familiar with the matter said.

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