Trump impeachment: Ex-president’s lawyers call trial ‘political theatre’ and urge Senate to dismiss charges

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Former President Donald Trump’s impeachment attorneys have urged the Senate to dismiss the charges against him in a new brief filed on Monday, a day before the trial was scheduled to begin in Washington.

Mr Trump’s attorneys described the upcoming trial as “political theater” while arguing it was unconstitutional for the Senate to convict a former president after they had already left office, writing: "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."

Legal scholars and constitutional experts have indicated Mr Trump can still face conviction for his conduct leading up to and during the deadly riots at the US Capitol, however, after he was impeached by the House of Representatives last month during his final days in office. 

Read more: Follow live updates and analysis on the Biden administration

Democrats have charged the former president with fomenting the deadly insurrection, which left five people dead, including United States Capitol Police Officer Brian Sicknick. Scores of pro-Trump rioters have since been arrested by state and federal law enforcement. 

On Monday, Mr Trump's lawyers appeared to argue that his former opponents on Capitol Hill were using the violent riots to smear him. 

"Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers who stormed the Capitol," Mr Trump's lawyers argued, "the Speaker of the House and her allies have tried to callously harness the chaos of the moment for their own political gain."

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. His new defence team has said it plans to counter with its own cache of videos of Democratic politicians making fiery speeches.

"We have the unusual circumstance where on the very first day of the trial, when those managers walk on the floor of the Senate, there will already be over 100 witnesses present," Rep. Adam Schiff, D-Calif., who led Mr Trump's first impeachment, said on NBC's Meet the Press, adding: "Whether you need additional witnesses will be a strategic call."

Democrats argue it's all about holding the former president accountable for his actions, even though he's no longer in office. For Republicans, the trial will test their political loyalty to Mr Trump and his enduring grip on the GOP.

Initially repulsed by the graphic images of the siege, Republican senators including Senate Republican Leader Mitch McConnell denounced the violence and pointed the finger of blame at Mr Trump. But in recent weeks they have rallied around the former president, arguing his comments do not make him responsible for the violence and questioning the legitimacy of trying someone no longer in office.

Senators were sworn in as jurors late last month, shortly after President Joe Biden was inaugurated, but the trial proceedings were delayed as Democrats focused on confirming the new president's initial Cabinet picks and Republicans sought to put as much distance as possible from the bloody riot. At the time, Sen. Rand Paul of Kentucky forced a vote to set aside the trial as unconstitutional because Mr Trump is no longer in office, drawing 44 other Republicans to his argument.

Republican Sen. Lindsey Graham of South Carolina, one of Trump's ardent defenders, said on CBS' Face the Nation that he believes Mr Trump's actions were wrong and "he's going to have a place in history for all of this", but insisted it's not the Senate's job to judge. The 45 votes in favour of Mr Paul's measure suggest the near impossibility of reaching a conviction in a Senate where Democrats hold 50 seats but a two-thirds vote – or 67 senators – would be needed to convict Mr Trump.

Only five Republicans joined with Democrats to reject Paul's motion: Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania.

The Associated Press contributed to this report