Trump lawyers denounce ‘political theater’ of impeachment as Senate eyes quick trial

By Mike DeBonis and Tom Hamburger,

Lawyers for former president Donald Trump on Monday assailed congressional Democrats for trying to “silence a political opponent and a minority party” through impeachment, a day before Trump is set to stand trial in the Senate on charges that he instigated the deadly Jan. 6 Capitol riot.

The 78-page filing is the most complete legal defense of Trump’s conduct to date, and it relies heavily on a challenge to the constitutionality of impeaching a former president, as well as a First Amendment defense of Trump’s rhetoric leading up to the riot — which sought to disrupt the final congressional certification of Trump’s loss.

But, mindful that they need only convince 34 Republican senators to secure an acquittal, Trump’s lawyers also cast their defense in a political light — calling the rapid impeachment effort the culmination of a long Democratic campaign to marginalize Trump.

“The Senate must summarily reject this brazen political act,” Trump attorneys Bruce L. Castor Jr., David Schoen, and Michael T. van der Veen wrote, calling the lone impeachment article “unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal.

“Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic, democracy and the rights that we hold dear,” they added.

The nine House impeachment managers filed their own arguments in favor of Trump’s conviction last week, accusing him of “a betrayal of historic proportions” by promoting the false claim that he, not President Biden, won the November election, then stoking anger among his supporters, summoning them to Washington and finally directing them toward the Capitol as Congress met to count the electoral votes.

“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense,” they wrote, “it is hard to imagine what would be.”

Trump’s lawyers outlined their rebuttal Monday: Simply put, Trump was engaged in free speech protected by the First Amendment when he questioned the election results — highlighting “electoral integrity issues essential to his career that he has consistently advocated, a position unpopular with his political opponents.”

“The attempt of the House to transmute Mr. Trump’s speech — core free speech under the First Amendment — into an impeachable offense cannot be supported, and convicting him would violate the very Constitution the Senate swears to uphold,” they wrote.

The decision on whether to convict Trump and potentially bar him from future office is now in the hands of a Senate evenly split by party, with 67 votes out of 100 needed to secure a conviction.

The exact structure of the trial has not been finalized, and it is subject to negotiations between Senate Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.), with input from both the House impeachment managers and Trump’s defense team.

But the Senate appears to be on track to hold a roughly week-long trial, one that is likely to begin with a one-day debate on the constitutionality of the proceedings, according to a person familiar with the discussions over the trial’s format.

That rapid schedule comports with the political imperatives of both Senate Democrats, who want to move quickly to pass President Biden’s $1.9 trillion pandemic relief proposal, and Senate Republicans, who want to get past the internally divisive debate over the former president as soon as possible.

The trial is set to begin at noon Tuesday. It is already on track to be markedly different from Trump’s first impeachment trial last year, which lasted three weeks in a GOP-majority chamber, with Chief Justice John G. Roberts Jr. presiding.

This time, Democrats are in charge, and senators of both parties are eyeing a more rapid proceeding. Instead of Roberts, Sen. Patrick J. Leahy (D-Vt.) — the Senate president pro tempore — is expected to preside.

The current discussions, according to the person briefed on them, are focused on a format that would begin the trial Tuesday with a proposed four-hour debate that would be followed by a simple-majority vote on the constitutionality question.

The person familiar with the talks spoke on the condition of anonymity to describe private negotiations.

Trump’s legal team, some legal scholars, and many Republican lawmakers have challenged whether it is constitutional to hold an impeachment trial for a former president. In a signal that the theory alone could be enough to win an acquittal, 45 of 50 Republican senators backed Trump on that question in a test vote last month — meaning another 12 Republicans would have to be persuaded that the trial is constitutionally permissible in order for the managers to have any hope of conviction.

While there are almost certainly enough votes to jump past that initial hurdle, the early vote could reinforce the likelihood of an acquittal early in the trial and put the proceedings on a glide path to a final verdict.

Congressional Democrats and more than 150 constitutional scholars, including a founder of the conservative Federalist Society, say post-presidential impeachment, conviction and disqualification from holding future office are permitted.

According to the current discussions, following the vote on constitutionality, opening arguments would kick off Wednesday, with both the House managers and Trump defense team entitled to up to 16 hours each to present their cases.

One issue that is close to being resolved, the person said, is the weekend’s trial schedule: The trial will recess Friday evening through Saturday to honor Trump lawyer David Schoen’s request to observe the Jewish Sabbath. But the person familiar with the talks said the trial is on track to resume Sunday rather than waiting for Monday, breaking with the past two impeachment trials that skipped Sunday.

That schedule would likely take opening arguments into Sunday, and at that point, according to the person familiar with the talks, the managers could ask the Senate to take a vote on calling witnesses. If the managers did not seek witnesses, or the Senate voted to reject the request, the Senate would likely move quickly to a vote on conviction.

One unresolved matter is whether the Senate will provide for a question-and-answer session, which occupied two days in Trump’s first impeachment trial last year. Several Democratic senators have suggested that no such session is needed this time, given lawmakers’ first-hand familiarity with the events of Jan. 6.