Trump lawyers argue former President did not incite riots by telling supporters to ‘fight like hell’

Donald Trump’s legal team accused House Democrats Monday of engaging in “political theater” and argued that the upcoming Senate impeachment trial is unconstitutional because Trump is no longer President.

“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,” Trump’s lawyers wrote in a second pretrial brief filed Monday.

LIVE UPDATES: Trump’s second impeachment trial starts Tuesday

“Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers 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,” the brief states.

The House managers will have an opportunity to push back on the Trump team’s latest round of pretrial arguments.

On Monday, they filed their response to Trump team’s initial pretrial brief, rebutting claims that both the former President and most Senate Republicans are making that the trial itself is unconstitutional.

The Democrats’ legal briefing was in response to last week’s filing from the Trump team, and is a preview of the arguments that will be made in the Senate when the trial begins on Tuesday.

“The evidence of President Trump’s conduct is overwhelming. He has no valid excuse or defense for his actions. And his efforts to escape accountability are entirely unavailing,” the House managers write. “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 from Monday says that 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 write.

Trump lawyers claim ‘fight like hell’ comments were not literal

The 75-page legal brief from Trump’s attorneys expands upon their initial response to the House’s impeachment last week, in which they argued that the trial was unconstitutional, that Trump didn’t incite the rioters and that his speech spreading false conspiracies about widespread election fraud is protected by the First Amendment.

Specifically, the brief filed Monday claims that Trump urged those gathered on January 6 to be peaceful and argues that his call for the crowd to “fight like hell,” was not meant to be taken literally.

“And if you don’t fight like hell, you’re not going to have a country anymore,” Trump said at the time.

“Of the over 10,000 words spoken, Mr. Trump used the word ‘fight’ a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence,” Trump’s lawyers wrote.

“To characterize this statement alone as ‘incitement to insurrection’ is to ignore, wholesale, the remainder of Mr. Trump’s speech that day, including his call for his supporters to ‘peacefully’ making their ‘voices heard,'” they added.

Trump’s lawyers also sought to distance the former President from those who committed acts of violence on January 6 by claiming they did so on their “own accord.”

“The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted,” they wrote.

Last week, House Democrats filed their own initial pretrial brief, which provided the impeachment managers’ most detailed argument to date for why Trump’s actions surrounding the January 6 attack on the Capitol warranted his second impeachment in a little over a year, making him the first president in US history to have been impeached twice.

The impeachment managers charged that Trump’s actions in the months leading up to January 6 of baselessly claiming the election was stolen from him created the conditions for a violent mob to be aimed “like a loaded cannon down Pennsylvania Avenue” to attack the Capitol.

“President Trump created a powder keg on January 6. Hundreds were prepared for violence at his direction. They were prepared to do whatever it took to keep him in power,” the managers wrote. “All they needed to hear was that their President needed them to ‘fight like hell.’ All they needed was for President Trump to strike a match.”

On Monday, House Democrats pushed back on the Trump legal team’s contention that Trump’s false claims the election was stolen from him were protected by the First Amendment and could not be proven inaccurate.

“President Trump’s repeated claims about a ‘rigged’ and ‘stolen’ election were false, no matter how many contortions his lawyers undertake to avoid saying so,” the House managers wrote.

This story has been updated with additional developments Monday.