- The Washington Times - Tuesday, February 2, 2021

Former President Donald Trump did not incite the Jan. 6 riot at the U.S. Capitol and cannot be banned from holding office again because he is a private citizen, Mr. Trump‘s lawyers said Tuesday in a legal brief ahead of his Senate impeachment trial.

“The 45th President believes and therefore avers that as a private citizen, the Senate has no jurisdiction over his ability to hold office,” Mr. Trump‘s lawyers wrote. They also said the Constitution “requires that a person actually hold office to be impeached.”

Trump lawyers David Schoen and Bruce Castor Jr. said Mr. Trump cannot be punished for exercising his First Amendment rights when he repeatedly challenged the results of the presidential election. Democrats say Mr. Trump should be convicted for inciting the deadly riot at the U.S. Capitol on Jan. 6.

“Like all Americans, the 45th President is protected by the First Amendment,” the brief argued. “The Constitution and Bill of rights, specifically and intentionally protect unpopular speech from government retaliation.” 

The legal brief rejects Democrats’ accusation that Mr. Trump made false claims about widespread election fraud.

“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,” the lawyers wrote. 

The president’s attorneys acknowledge that Mr. Trump spoke by phone to Georgia Secretary of State Brad Raffensberger, but they deny that he wrongly pressured the election official to reverse Mr. Biden’s win in the state.

During the recorded call in December, Mr. Trump urged Mr. Raffensberger to “find” more than 11,000 votes so he would be declared the winner in Georgia. Mr. Trump‘s lawyers say his accusers are taking the comment out of context.

“President Trump was expressing his opinion that if the evidence was carefully examined one would ‘find that you have many that aren’t even signed and you have many that are forgeries,’” they wrote. “It is denied that President Trump threatened Secretary Raffensperger. It is denied that President Trump acted improperly in that telephone call in any way.”

Besides claiming the Senate lacks jurisdiction over Mr. Trump as a private citizen, the lawyers also take issue with Sen. Patrick Leahy of Vermont presiding at the trial instead of Supreme Court Chief Justice John G. Roberts Jr.,  as the Constitution requires for the trial of a president who’s still in office. 

They called Mr. Leahy “a partisan member of the Senate with a long history of public remarks adverse to the 45th president.”

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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