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Jamie Raskin: Trump’s impeachment defense amounts to ‘absurd constitutional arguments’

The Maryland Democrat’s comments on a caucus call Wednesday offered a preview of how the House impeachment managers plan to poke holes in the former president’s defense during next week’s trial, while they also make their case that Trump was responsible for inciting the deadly riot at the Capitol on January 6. Trump’s lawyer, meanwhile, said Wednesday that the defense will focus on the “technical” reasons Trump should not be convicted and will avoid Trump’s false claims of widespread election fraud.

Both the House impeachment managers and Trump’s legal team submitted pretrial legal briefs on Tuesday ahead of the trial that begins on February 9. Both sides are expected to submit one more round of pretrial briefs on Monday before the trial begins the following day.

Trump’s lawyers argued Tuesday that it was unconstitutional for the Senate to hold an impeachment trial for a former president. Trump’s team also contended that the former president’s speech about election fraud did not incite the rioters and was protected by the First Amendment. “The 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,” Trump’s lawyers wrote.

But Raskin argued on the Democratic call that Trump’s remarks at a January 6 rally before the rioters attacked the Capitol were not First Amendment-protected speech. His comments weren’t like shouting fire in a crowded theater, Raskin said, but like a fire chief sending a mob to the theater, according to the source.

Raskin added on the call that extremist elements in Russia and Germany view the storming of the Capitol as a great victory for 21st Century fascism.

In their legal brief Tuesday, the House impeachment team’s pushed back on the constitutional argument that Senate Republicans have coalesced around as reason to acquit Trump, pointing to the Senate’s precedent for trying a former official and the fact that House impeached Trump while he was still in office.

It will be one of the key questions during next week’s trial, though Senate Republicans have already signaled with a 55-45 procedural vote last week they’re highly unlikely to convict Trump.

But House Democrats are preparing a visceral case to detail the events of January 6 and how Trump was “singularly responsible” for the deadly riot, in which one Capitol Police officer was killed and dozens were injured. That includes using video footage from the Capitol riots and showing how the insurrectionists said they were acting on behalf of the President.

Raskin told Democrats on Wednesday that one Capitol Police officer has lost three fingers in the attack, and another is likely to lose his eye.

A ‘technical’ defense

Speaking to Pennsylvania radio station KYW Newsradio on Wednesday, Trump attorney Bruce L. Castor said he plans to focus on the “technical” defenses of Trump, and that he was not pressured to try to craft a defense relying on Trump’s false and baseless claims of widespread election fraud.

“There are plenty of questions about how the election was conducted throughout the country, but that’s for a different forum. I don’t believe that’s important to litigate in the Senate trial, because you don’t need it,” Castor said.

“I said I wasn’t going to go down that road,” he added. “Nobody’s pressured me. It hasn’t even been discussed. So I don’t know where people got that notion that was some sort of a litmus test to get to defend the President.”

Of course, while the legal filing that Castor and David Schoen filed on Tuesday defending the former president didn’t claim the election was stolen, it did embrace some of Trump’s false claims about the election. The filing in response to the House’s impeachment claimed that “insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.”

Senate Republicans have publicly warned Trump’s team not to try to argue election fraud at the trial. Sen. John Cornyn of Texas said this week it would be a “disservice” to Trump’s defense.

Castor said the impeachment defense plans to argue that the Senate doesn’t have jurisdiction to try Trump because he’s no longer in office, as well as that Trump’s speech on January 6 ahead of the Capitol riots did not meet the criminal definition of incitement and was protected by the First Amendment.

“Just because somebody gave a speech and people got excited, that doesn’t mean it’s the speech-makers fault — it’s the people who got excited and did what they know is wrong that are at fault,” Castor said. “That’s the focus that we’re going to take.”

Questions loom over next week’s trial

It’s still unclear how long the Senate’s trial will last — as Senate Democrats have hinted they want a speedy trial — as well as whether House Democrats will call any witnesses, such as someone who could speak to the President’s mindset and motivation before and during the Capitol riots. The House’s brief accused Trump of “dereliction of duty” for failing to respond to the riots by activating the National Guard or calling off the insurrectionists attacking the Capitol

“No idea,” Raskin said about how long the trial will last.

And asked if he believed it would include witnesses, Raskin said, “I think all that remains to be seen in the Senate.”

Pressed on his preference, Raskin said, “justice” as he walked into the House chamber.

This story has been updated with additional developments Wednesday.


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