‘Private citizen Trump’ should not face trial, his lawyers argue

A final bid to have an impeachment trial against Donald Trump thrown out because he is a “private citizen” has been rejected.

Donald Trump should not be blamed for the actions of a “small group of criminals” who rioted at the Capitol last month after he urged them to “fight like hell” against his election loss, his lawyers argue.

In a 78-page brief submitted ahead of his second impeachment trial, the former president’s legal team dismissed the case against him as “political theatre” and said it was unconstitutional for the Senate to try a former president.

They also said that Democrats were guilty of stoking “fevered hatred” of Mr Trump, whose trial starts Wednesday morning AEDT.

Supporters of Donald Trump inside the US Capitol building on January 6. Picture: AFP

But a final bid by his team to have the trial thrown out on the basis it is unconstitutional because he is a “private citizen” was rejected.

“The evidence of President Trump’s conduct is overwhelming. He has no valid excuse or defence for his actions. And his efforts to escape accountability are entirely unavailing,” House managers wrote in response to Trump’s lawyers.

“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.”

The five-page House brief says that Mr Trump can stand trial in the Senate for a crime that he committed while in office.

“Presidents swear a sacred oath that binds them from their first day in office through their very last,” the Democrats wrote.

They were responding after his lawyers said the trail was being driven by “fevered hatred” against the former president.

Donald Trump is a ‘private citizen’, his lawyers say. Picture: AFP

“One might have been excused for thinking that the Democrats’ fevered hatred for Citizen Trump and their ‘Trump Derangement Syndrome’ would have broken by now, seeing as he is no longer the President,” his lawyers wrote.

“And yet for the second time in just over a year the United States Senate is preparing to sit as a Court of Impeachment, but this time over a private citizen who is a former President.”

The defence submission contends that Mr Trump’s speech just before the January 6 attack “did not direct anyone to commit unlawful actions”.

“The intellectual dishonesty and factual vacuity put forth by the House managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking justice.

“Instead, 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 January 6 by a few hundred people.

“Instead of acting to heal the nation, or at the very least focusing on prosecuting the law-breakers 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.”

Police push back a crowd of Trump supporters during the riots. Picture: AFP

Five people died during the riot which led to the House of Representatives impeaching Mr Trump for “incitement of insurrection”.

Capitol police officer Brian Sicknick died in the riots. Picture: AFP

But the trial is almost certain to fail in the Senate, where the Democrats require support from 17 Republicans to find Mr Trump guilty.

The former president’s defence team has already said Mr Trump will not appear at the trial, which both sides of politics want to conclude as quickly as possible.

The trial is expected to last no more than a week, as is preferred by both Democrats and Republicans in the body.

Starting Wednesday US time, each side will be given 16 hours to present their case.

Debate and a vote will also be permitted on whether to allow witnesses.

Democrat House managers prosecuting the case are expected to rely on videos from the siege, along with Mr Trump’s incendiary rhetoric refusing to concede the election, to make their case.

Donald Trump talking to his supporters before the riots. Picture: AFP

“The story of the president’s actions is both riveting and horrifying,” the Democrats’ lead prosecutor Jamie Raskin told the New York Times.

“We think that every American should be aware of what happened – that the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal office is to make sure that such an attack on our democracy and Constitution never happens again.”

But Mr Trump’s defence team will counter with its own cache of videos of Democratic politicians making fiery speeches.

The article of impeachment. Picture: AFP

The footage will reportedly show Democratic members of Congress calling for violence against Trump administration officials and law enforcement, according to the Washington Times.

Mr Trump is the first president to be twice impeached, and the only one to face trial after leaving the White House.

Republican Senator Rand Paul of Kentucky called the proceedings a farce with “zero chance of conviction” and described Trump’s language and rally words as “figurative” speech.

Donald Trump after he was acquitted by the Senate at his first impeachment trial in 2020. Picture: AFP

“Forty-five Republicans have said it’s not even a legitimate proceeding, so it’s really over before it starts,” Senator Paul said, referring to the 45 Republican senators who voted in support of his motion to dismiss the trial on the grounds that it is unconstitutional.

Republican Senator Lindsey Graham, known as one of Mr Trump’s most vocal allies, said history will judge the former president’s action in the Capitol siege — but the Senate should not.

“Well, I mean, he’s going to have a place in history for all of this, but the point of the matter is that we’re in Congress, we’re not prosecutors. Impeachment was never meant to be a prosecution,” Sen Graham said.