By Richard Cowan, David Morgan and Jan Wolfe
WASHINGTON (Reuters) - The lawyers defending Donald Trump in his second impeachment trial denied on Monday that he had encouraged the deadly attack on the U.S. Capitol by hundreds of his supporters, while the Democrats prosecuting the former president said he has no valid defense.
With his trial set to begin on Tuesday, Trump's legal team questioned whether it was constitutional to have an impeachment trial for a president who has left office, though one of the legal scholars they cited in a brief said they had misrepresented his work.
Michigan State University law professor Brian Kalt told Reuters in an email that his research was “definitely not” accurately described in the 78-page document.
“They didn’t have to be disingenuous and misleading like this,” Kalt later said on Twitter, adding that “in several places, they misrepresent what I wrote quite badly.”
Kalt has joined other scholars in arguing the trial is supported by the U.S. Constitution.
Trump's lawyers are seeking to convince members of the narrowly divided 100-member Senate not to convict the Republican or to bar him from again serving in public office.
Conviction requires a two-thirds majority, meaning 17 Republicans would need to join the Senate's 50 Democrats in the vote. Based on preliminary votes and public comments, there appears to be little chance of that occurring..
Trump's lawyers called the trial a "brazen political act" by Democrats with a "hunger for this political theater" with the intention to "silence a political opponent and a minority party." Trump's four-year term ended on Jan. 20.
The charge of "incitement of insurrection" passed by the Democratic-led House of Representatives on Jan. 13 focused on Trump's speech to a crowd of supporters shortly before hundreds of them stormed the Capitol on Jan. 6, sending lawmakers into hiding and leaving five people dead including a police officer.
"The evidence of President Trump's conduct is overwhelming," the nine Democratic House impeachment managers, who will serve as prosecutors, wrote in a brief. "He has no valid excuse or defense for his actions."
Trump's lawyers said he was speaking only in a "figurative sense" when he told followers to go to the Capitol and "fight like hell" as Congress was formally certifying Democrat Joe Biden's Nov. 3 election victory. Trump's use of the word "fight," the defense said, "could not be construed to encourage acts of violence."
"Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever," they wrote.
Trump's lawyers said he could not be held responsible for the actions of "a small group of criminals - who had come to the capital of their own accord armed and ready for a fight."
Several of the roughly 200 people charged following the riot have tried to shift at least some blame onto Trump as they defend themselves in court or in the court of public opinion.
The impeachment, Trump's lawyers wrote, "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" on Jan. 6.
CONSTITUTIONAL CHALLENGE
The Democratic managers ridiculed Trump's defense argument that he was simply exercising his free speech rights under the Constitution's First Amendment.
"The House did not impeach President Trump because he expressed an unpopular political opinion," the Democrats wrote. "It impeached him because he willfully incited violent insurrection against the government."
Trump's false claims of a stolen election and his speech before the riot have left fissures in his party. Ten House Republicans voted to impeach him.
Defense lawyers Bruce Castor, David Schoen and Michael van der Veen said the Constitution "does not provide for the impeachment of a private citizen who is not in office." A failed Jan. 26 bid to dismiss the case on that basis drew support from 45 of the 50 Senate Republicans.
"Republicans are dead wrong if they think an impeachment trial of a former president is unconstitutional," countered Senate Majority Leader Chuck Schumer, speaking on the Senate floor on Monday.
Schumer's office said the trial will open on Tuesday with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Trump is no longer president. Beginning on Wednesday at noon, there will be up to 32 hours of trial debate, and the Senate would vote on whether to allow witnesses if House prosecutors want any, his office said.
Trump's office, in a statement, said his legal team was satisfied with the structure of the trial.
Trump's first impeachment trial, on charges of abuse of power and obstructing Congress arising from his request that Ukraine investigate Biden and his son Hunter, ended in February 2020 in acquittal by the then-Republican-led Senate.