With former President Donald Trump’s impeachment trial set to begin next week, he faces a Tuesday deadline to respond to the US House’s article of impeachment charging him with inciting an insurrection.
Tuesday’s filing will be the first public road map of Trump’s defence following a late shake-up of his legal team. Over the weekend, Trump hired two new lawyers after a reported dispute with his initial lawyers over how to defend the charge that he urged a mob of his supporters gathered in Washington, DC, on January 6 to storm the Capitol to stop Congress from certifying Joe Biden’s November 3 election victory. The riot left five people dead.
In an interview with The Atlanta Journal-Constitution, one of Trump’s recently-hired lawyers, David Schoen, said he is not planning to argue that Trump lost the election because of fraud, as Trump has repeatedly insisted, and would instead argue that the trial itself is unconstitutional since Trump has already left office and that his words were protected by the First Amendment and did not incite a riot.
Republican Senator John Cornyn – one of the 100 members of the Senate who will serve as jurors in Trump’s second impeachment trial – agreed that focusing on claims of election fraud would be “really not material” to the incitement charge.
“I think it would be a disservice to the president’s own defence to get bogged down in things that really aren’t before the Senate,” Cornyn, a former Texas Supreme Court judge, told reporters on Monday.
Schoen also appeared on Fox News on Monday, calling the case needlessly divisive and undemocratic and said it is “the most ill-advised legislative action that I’ve seen in my lifetime”. Impeachment, Schoen said, “is the weapon they’ve tried to use against him”.
Trump is the first president in American history to be impeached twice. He was acquitted at a Senate trial last year over his contacts with his Ukrainian counterpart.
Democrats are also preparing
Nine House Democrats who will prosecute former Trump in the trial filed their own brief on Tuesday, arguing that he pointed a mob “like a loaded cannon” toward the Capitol.
The nine Democrats, known as House impeachment managers, also rejected Republican claims that it would be unconstitutional to put Trump on trial in the Senate since he is a private citizen after leaving office on January 20.
“There is no ‘January Exception’ to impeachment or any other provision of the Constitution,” the managers said in the brief.
“He summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. As the Capitol was overrun, President Trump was reportedly ‘delighted,'” they said.
Conviction unlikely
Convicting Trump, who is just the third US president to be impeached and the first to face trial after leaving office, would require a two-thirds vote, meaning that 17 Republicans would need to join the Senate’s 50 Democrats in voting to convict. That presents a daunting hurdle for Democrats.
Forty-five Senate Republicans voted last week in support of a measure declaring the impeachment trial unconstitutional since it is occurring after Trump has left office. A conviction could lead to a second vote banning Trump from running for office again.
Whether a Senate trial is constitutional is a point of contention because Trump is no longer in office and, if convicted, cannot be removed from an office he does not occupy. Democrats point to an 1876 impeachment of a secretary of war who had already resigned and to opinions by many legal scholars. The Senate could vote to bar Trump from holding federal office if he were convicted, which is a goal Democrats support.
