Trump legal team argues impeachment article is in ‘violation' of Constitution, calls on Senate to acquit

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Former President Donald Trump's legal team on Tuesday filed its response to the House article of impeachment ahead of next week's trial, denying wrongdoing and calling for the Senate to acquit Trump of the charge.

The answer denies that Trump violated his oath of office while also saying that he was protected by the First Amendment in response to claims he incited an insurrection.

"It is denied that the 45th President of the United States ever engaged in a violation of his oath of office," the Trump legal team brief says. "To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors."

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Trump's legal team also argues that a Senate trial against him would be unconstitutional. 

"Donald John Trump, 45th President of the United States, respectfully requests the Honorable Members of the Senate of the United States dismiss Article I: Incitement of Insurrection against him as moot, and thus in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office," the brief says.

The argument from Trump's counsel that the trial is constitutionally impermissible is one that is supported by the vast majority of the Republicans in the Senate. Last week Sen. Rand Paul, R-Ky., raised a point of order, claiming that it is unconstitutional for the Senate to hold an impeachment trial of a former president. 

It was defeated by a 55-45 vote, with five Republicans joining all 50 Senate Democrats in what is likely to be the final word on whether or not the trial may proceed – it's highly unlikely any court would step in and tell the Senate how to run the trial. 

But it would take 17 Republicans joining all 50 Senate Democrats to convict Trump on the impeachment article, meaning a dozen Senate Republicans would have to change their mind about the trial's constitutionality for Democrats to even have a chance of convicting the former president. 

Former President Donald Trump speaks to the crowd before boarding Air Force One at Andrews Air Force Base, Md., Wednesday, Jan. 20, 2021. Trump's second impeachment trial begins next Tuesday. (AP Photo/Luis M. Alvarez)

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The brief also doubles down on the false claims that Trump won the election. 

"To the extent Averment 5 alleges his opinion is factually in error, the 45th President denies this allegation," the brief reads, referencing the House's allegation that Trump at his Jan. 6 rally "reiterated false claims that 'we won this election, and we won it by a landslide.'"

"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 brief also says. 

Trump's previous legal team quit over his demand that they make an election fraud case, Fox News was told. Trump's new legal team of Bruce Castor Jr. and David Schoen were the only two lawyers signed onto the document that was submitted to the Senate on Tuesday. 

Earlier Tuesday, the House impeachment managers filed their pre-trial brief, essentially previewing their argument against Trump in the trial that's set to start next Tuesday. 

"In a grievous betrayal of his Oath of Office, President Trump incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden Jr. as the winner of the presidential election," the impeachment managers, led by Rep. Jamie Raskin, D-Md., wrote. "As it stormed the Capitol, the mob yelled out 'President Trump Sent Us,' 'Hang Mike Pence,' and 'Traitor Traitor Traitor.'"

They added: "This is not a case where elections alone are a sufficient safeguard against future abuse; it is the electoral process itself that President Trump attacked and that must be protected from him and anyone else who would seek to mimic his behavior."

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But the Trump team brief on Tuesday directly addresses the allegation that the former president incited the riot. 

"It is denied that the phrase 'if you don’t fight like hell you’re not going to have a country anymore' had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech," the Trump team brief reads. "It is denied that President Trump intended to interfere with the counting of Electoral votes."

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It adds: "The purpose of the Joint Sessions of Congress in 2017 and on Jan. 6, 2021, was for Members of Congress to fulfill their duty to be certain the Electoral College votes were properly submitted, and any challenges thereto properly addressed under Congressional rules. Congress’ duty, therefore, was not just to certify the presidential election. Its duty was to first determine whether certification of the presidential election vote was warranted and permissible under its rules."

Outside of a range of answers to the specific allegations from the House impeachment managers, the Trump team brief also previews a menu of legal arguments it says support the argument that the Senate should not convict Trump. 

These include the Senate lacking jurisdiction to hear a trial of a former president; that Trump's speech was protected by the First Amendment; that the House ignored due process in "rushing to issue an Article of Impeachment"; that Chief Justice John Roberts will not oversee the trial, and that the House weaves together a plethora of independent allegations into a single article of impeachment. 

Trump's team and the House impeachment managers will submit another round of briefs next Monday. These will be the House managers' reply to Trump's answer today, and the Trump team's pre-trial brief. 

The impeachment trial will then start in earnest next Tuesday. 

Fox News' John Roberts and Jacqui Heinrich contributed to this report.