Attorneys for former president Donald Trump slammed the impeachment case against him, calling it "political theater" from Democrats and asking the Senate to dismiss the case in a brief filed on the eve of the trial beginning.

What You Need To Know

  • Former president Donald Trump's attorneys asked the Senate to dismiss the case against him, slamming it as "political theater" from Democrats

  • Trump is being charged with "incitement of insurrection" for his role in the Jan. 6 riot at the U.S. Capitol

  • President Joe Biden demurred when asked if the Senate should be able to bar Trump from holding office again: "Let the Senate work that out," 

  • Trump's attorneys claim that the case is unconstitutional since he no longer holds office; a number of notable conservate legal scholars have argued against that

"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 attorneys wrote in the brief. 

Trump is being charged with "incitement of insurrection" for his role in the Jan. 6 riot at the U.S. Capitol as the House and Senate met to certify the results of the November election, which left 5 dead, including a Capitol Police officer.

"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," the lawyers argue.

In response, the House Impeachment Managers filed a replication brief, which said, "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."

"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," they went on to say. "There must be no doubt that such conduct is categorically unacceptable. The House will establish at trial that President Trump merits conviction and disqualification to hold and enjoy any office of honor, trust, or profit under the United States."

The attorneys argue that Trump was utilizing his First Amendment rights by disputing the election results, and claim that the trial is not consitutional, saying that the Senate cannot try Trump since he has left office.

That argument, which Kentucky Sen. Rand Paul highlighted when he forced an unsuccessful vote on the issue in the Senate last month, is being disputed by notable conservative legal scholars, including conservative constitutional attorney Charles J. Cooper.

In a Wall Street Journal op-ed, Cooper references a provision in the U.S. Constitution that says that "the president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

He writes that, "the trial’s opponents argue that because this provision requires removal, and because only incumbent officers can be removed, it follows that only incumbent officers can be impeached and tried. But the provision cuts against their interpretation. It simply establishes what is known in criminal law as a 'mandatory minimum' punishment."

"Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders," Cooper added, "it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders."

Meanwhile, speaking to reporters at the White House after returning from Delaware, President Joe Biden demurred when asked if the Senate should be able to bar Trump from holding office again.

"Let the Senate work that out," he said.

When asked about the former president testifying in the trial, Biden said, "he got an offer to come and testify, he decided not to."

Trump’s second impeachment trial is opening with a sense of urgency, both by Democrats who want to hold him accountable for the violent Capitol siege and Republicans who want it over as quickly as possible.

The trial will begin in earnest Tuesday with a debate and vote on whether it’s even constitutional to prosecute the former president, an argument that could resonate with Republicans keen on voting to acquit Trump without being seen as condoning his behavior.

Under a draft agreement between Senate Majority Leader Chuck Schumer and Senate Republican Leader Mitch McConnell, the proceedings will break Friday evening for the Jewish Sabbath at the request of Trump’s defense team and resume on Sunday. There will likely be no witnesses, and the former president has declined a request to testify.

The proceedings are expected to diverge from the lengthy, complicated trial that resulted in Trump's acquittal a year ago on charges that he privately pressured Ukraine to dig up dirt on a Democratic rival, Joe Biden, now the president. This time, Trump's Jan. 6 rally cry to “fight like hell” and the storming of the Capitol played out for the world to see. While Trump very well could be acquitted again, the trial could be over in half the time.

So far, it appears there will be few witnesses called, as the prosecutors and defense attorneys speak directly to senators who have been sworn to deliver "impartial justice"as jurors. Most are also witnesses to the siege, having fled for safety that day as the rioters broke into the Capitol and temporarily halted the electoral count certifying Biden’s victory.

Instead, House managers prosecuting the case are expected to rely on the trove of videos from the siege, along with Trump’s incendiary rhetoric refusing to concede the election, to make their case. His new defense 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," said Rep. Adam Schiff (D-CA), who led Trump’s first impeachment trial. "Whether you need additional witnesses will be a strategic call."

The Associated Press contributed to this report.