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Former President Donald Trump’s lawyers on Monday sent to the Senate a 75-page brief more fully outlining his impeachment trial defense strategy.
Trump’s trial begins Tuesday for allegedly inciting the Jan. 6 Capitol riot. Two-thirds of the Senate must vote to convict — a steep climb that requires at least 17 Republican votes.
“The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons,” attorneys Bruce Castor, David Schoen and Michael van der Veen argue in the new filing.
Trump’s defense will argue that the trial is unconstitutional and that a careful analysis of Trump’s words in a pre-riot speech and afterward clear him of wrongdoing.
“Mr. Trump concluded his speech at the Ellipse stating ‘[s]o let’s walk down Pennsylvania Avenue. I want to thank you all. God bless you and God Bless America. Thank you all for being here, this is incredible. Thank you very much. Thank you’,” the filing says.
“Despite the House Managers’ charges against Mr. Trump, his statements cannot and could not reasonably be interpreted as a call to immediate violence or a call for a violent overthrown of the United States’ government.”
During the pre-riot speech, Trump told supporters that he was cheated out of re-election by fraud and urged supporters to “fight like hell” to persuade legislators to invalidate electors from swing states. Skirmishes near the Capitol began before the speech ended.
Five people died as Trump supporters broke into the Capitol building and disrupted certification of President Biden’s victory.
The filing suggests there will be intense focus on the timeline of Trump’s words, including after rioters smashed into the building. Democrats and some Republicans say Trump took too long to demand on Twitter that the siege end.
Trump’s lawyers write: “The House Managers’ suggestion that President Trump did not act swiftly enough to quell the violence is absolutely not true. Upon hearing of the reports of violence, he tweeted, pleading with the crowd to be ‘peaceful,’ followed by a tweeted video urging people to ‘go home’ and to do so in ‘peace.’”
According to video analysis, the first breach of the building occurred at 2:12 pm on Jan 6. Trump’s initial post-breaking tweet said at 2:38 pm, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
Trump’s legal team also argues that Trump’s First Amendment right to free speech is begin infringed upon by the trial and that the proceedings violate the Constitution because Trump is now an ex-president.
And the lawyers address a contention by Democrats that the trial is permissible under the 1876 precedent. The House impeached and the Senate tried a former cabinet member, William Belknap, for taking bribes as secretary of war.
Trump’s lawyers write, “While historical accounts suggest that few senators believed Belknap was innocent, the majority of those voting to acquit him did so because they did not think the Senate had jurisdiction to convict someone who was no longer in office.”
It’s considered unlikely that 17 Senate Republicans will vote to convict as is required. Although Senate Minority Leader Mitch McConnell (R-Ky.) said the rioters were “provoked by the president” and that he’s open to conviction, he joined 45 of 50 Republicans who vote not to allow the trial because it’s allegedly unconstitutional.
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