Trump's lawyers reveal their impeachment defense

With just days to go before Donald Trump’s second impeachment trial in the Senate, arguments from both sides began to take shape.

Democratic lawmakers due to serve as prosecutors called Trump singularly responsible for the deadly January 6th attack on the Capitol, while attorneys for the former president said the Senate lacks the authority to conduct his trial now that he has left office.

Trump’s lawyers focused on an argument that last week won the support of 45 Senate Republicans in a failed vote to dismiss the case – that the trial is unconstitutional.

But Reuters legal correspondent Jan Wolfe says that while some legal experts agree, most do not.

“The majority view, is that this sort of ‘late impeachment’ is constitutional - and if it weren’t a president could engage in all kinds of misconduct in his final weeks in office and escape accountability under the one mechanism there is for that accountability.”

Still, challenging Trump’s impeachment on the grounds that the Senate lacks constitutional authority could enable his fellow Republicans to vote against conviction without directly defending Trump's rhetoric and role in the attack.

In briefs filed with the Senate on Tuesday, Trump’s team denied he had incited violence when he told supporters to (quote) “fight like hell” shortly before they stormed the Capitol, saying his remarks were protected under the First Amendment.

“The First Amendment probably does cover what Trump said – to have ‘incited’ violence under some Supreme Court decisions you really have to have prompted imminent lawless action. So he has a defense there, but it’s sort of beside the point – the counterargument is that just because your speech is protected by the First Amendment, doesn’t mean you can’t be impeached, doesn’t mean you can’t lose your job. The First Amendment here in the U.S. protects all sorts of vile speech, from racist slurs to denying the Holocaust to promoting fascism. No one really doubts that if a president did that every day he could be impeached, so it's sort of a non sequitur.”

Trump’s brief was filed by his new lawyer just days after Trump parted ways with his initial legal team amid a reported dispute over his defense.

To secure a conviction, a two-thirds majority is needed – meaning that 17 Republicans would need to join the Senate's 50 Democrats in the vote, a daunting hurdle.

Only if he is convicted can the Senate then vote to bar him from holding future office.

Still, Democrats are pushing forward with the trial, writing Tuesday (quote), “He summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue.”