David Schoen, Bruce Castor say Trump impeachment could lead to Republican retaliation

The historic second impeachment trial of former President Donald Trump will open in the Senate on Tuesday, with his attorneys saying Mr. Trump is blameless for the insurrection at the U.S. Capitol and accusing Democrats of exploiting the deadly riot for partisan gain.

Defense attorneys David Schoen and Bruce Castor said in a legal brief filed Monday that the impeachment trial is an act of “political theater” by Democrats who are still in the grips of “Trump derangement syndrome,” even though Mr. Trump left office on Jan. 20.

Mr. Trump’s legal team warned that the second trial could result in Republican retaliation someday by wielding impeachment as a political weapon to bar Democrats such as President Biden or Hillary Clinton from holding office again.

“Through this latest Article of Impeachment now before the Senate, Democrat politicians seek to carve out a mechanism by which they can silence a political opponent and a minority party,” Mr. Trump’s legal team said. “The Senate must summarily reject this brazen political act.”

Democratic House impeachment managers said Monday that the Senate must convict Mr. Trump and ban him from holding office again because of his role in “the most grievous constitutional crime ever committed by a president.”

The Democrats rejected the Trump team’s “utterly baseless” claim that the president’s speech to a massive crowd of supporters in Washington before the riot was protected by the First Amendment.

“The House did not impeach President Trump because he expressed an unpopular political opinion,” the managers said. “It impeached him because he willfully incited violent insurrection against the government. We live in a nation governed by the rule of law, not mob violence incited by presidents who cannot accept their own electoral defeat.”

The House voted Jan. 13 to impeach Mr. Trump on a charge of inciting the riot, when some of his supporters tried to stop Congress from certifying Mr. Biden’s win in the Electoral College.

As with Mr. Trump’s first trial in February 2020, his acquittal in the Senate is virtually guaranteed. Democrats would need 17 Republicans to join them to reach the two-thirds majority vote that the Constitution requires for conviction.

White House press secretary Jen Psaki said Mr. Biden will be too busy this week to spend “too much time watching the proceedings.” Mr. Biden again Monday took a hands-off approach to the impeachment.

“He got an offer to come and testify. He decided not to,” Mr. Biden said of his predecessor. “Let the Senate work that out.”

Senate leaders in both parties agreed Monday that the trial will begin Tuesday with a debate and a vote on whether it is constitutional to put a former president on trial. A simple majority vote will allow the trial to be held. In a similar test vote on Jan. 26, senators voted 55-45 in favor of a trial, with five Republicans joining all 50 Democrats.

“The structure we have agreed to is eminently fair,” Senate Majority Leader Charles E. Schumer, New York Democrat, said Monday. “Following the despicable attack on Jan. 6, there must be truth and accountability, if we are going to move forward, heal and bring our country together once again. Sweeping something as momentous as this under the rug brings no healing whatsoever.”

He said there must be consequences for a president “who trashes our democracy on his way out the door.”

The former president’s attorneys said they are pleased that the rules for the trial give them “an opportunity to explain to senators why it is absurd and unconstitutional to hold an impeachment trial against a private citizen.”

Mr. McConnell said the agreement “preserves due process and the rights of both sides.”

The trial will begin at noon Wednesday. Senators will hear arguments over a charge that Mr. Trump incited the Jan. 6 insurrection at the U.S. Capitol in which five people died. The House impeachment managers and Mr. Trump’s attorneys each will have up to 16 hours for their presentations.

The impeachment managers, led by Rep. Jamie Raskin of Maryland, could call witnesses if a majority of the Senate approves under an agreement reached by Mr. Schumer, Senate Minority Leader Mitch McConnell of Kentucky, the impeachment managers and Mr. Trump’s attorneys.

Mr. Trump is not expected to appear in person, although the impeachment managers plan to show video of his speech near the White House before the riot began. The president had urged supporters on social media to come to Washington on Jan. 6 and promised it would be “wild.”

“President Trump’s repeated claims about a ‘rigged’ and ‘stolen’ election were false, no matter how many contortions his lawyers undertake to avoid saying so,” the impeachment managers said. “When President Trump demanded that the armed, angry crowd at his Save America Rally ‘fight like hell’ or ‘you are not going to have a country any more,’ he wasn’t urging them to form political action committees” about election integrity.

The former president’s attorneys said Democrats are not interested in pursuing justice because the trial is against someone who is no longer in office.

“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 Jan. 6 by a few hundred people,” they said. “Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers who stormed the Capitol, the Speaker of the House and her allies have tried to callously harness the chaos of the moment for their own political gain.”

Mr. Trump’s attorneys said the rioters “who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted.” They said Mr. Trump’s speech that day to thousands of supporters near the White House did not spark the insurrection and that his calls for them to “fight” were meant only figuratively.

“A simple timeline of events demonstrates conclusively that the riots were not inspired by the president’s speech at the Ellipse,” they said.

Mr. Trump’s legal team rejected the argument by House impeachment managers that the president failed to act quickly to quell the violence by some of his supporters on Jan. 6.

“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,’” the attorneys wrote. “He and the White House further took immediate steps to coordinate with authorities to provide whatever was necessary to counteract the rioters. There was a flurry of activity inside the White House working to mobilize assets. There is no legitimate proof, nor can there ever be, that President Trump was ‘delighted’ by the events at the capital. He, like the rest of the country, was horrified at the violence.”

On the question of banning Mr. Trump from holding office again, Mr. Trump’s attorneys said Democrats are heading down a “slippery slope” that could be used against Mr. Biden or Mrs. Clinton.

“Were it otherwise, a future House could impeach former Vice President Biden for his obstruction of justice in setting up the Russia hoax circa 2016,” said Mr. Trump’s attorneys, suggesting Mr. Biden’s involvement in the investigation of election interference. “While he could not be removed from the vice presidency because his term ended in 2017, he could be barred from holding future office. The same flawed logic the House Managers advance could apply to former Secretary of State Clinton for her violations of 18 U.S.C § 793 [the federal statute on gathering, transmitting or losing defense information]. Impeachment cannot and should not be allowed to devolve into a political weapon.”

In Mrs. Clinton’s case, it was a reference to the private email server she used while in office and thousands of missing or deleted emails.

The Trump team also said voters hold “the ultimate political check” on a candidate for office.

“It is almost laughable that the House Managers, who spent four years pretending that Mr. Trump was completely ineffective and illegitimate, are now so worried that he might win again that they seek to illegally impair him,” the Trump attorneys wrote.

The impeachment managers said the case against Mr. Trump is overwhelming.

“He has no valid excuse or defense for his actions,” they said. “As charged in the Article of Impeachment, President Trump violated his Oath of Office and betrayed the American people. His incitement of insurrection against the United States government — which disrupted the peaceful transfer of power — is the most grievous constitutional crime ever committed by a president. There must be no doubt that such conduct is categorically unacceptable.”