By Jan Wolfe, Richard Cowan and David Morgan
WASHINGTON (Reuters) – A legal scholar cited by Donald Trump’s lawyers in arguing that it is unconstitutional to have an impeachment trial for a former president said Trump’s defense team misrepresented his work “quite badly.”
Michigan State University law professor Brian Kalt told Reuters in an email that his research was “definitely not” accurately described in a 78-page document filed by Trump’s lawyers on Monday, the day before his second impeachment trial begins.
In the brief, Trump’s lawyers denied he had encouraged the deadly attack on the U.S. Capitol by hundreds of his supporters on Jan. 6, while disputing the constitutionality of the trial.
Kalt, however, has joined other legal scholars in arguing the Senate trial is constitutional.
“They didn’t have to be disingenuous and misleading like this,” Kalt said later on Twitter, adding that “in several places, they misrepresent what I wrote quite badly.”
David Schoen, one of Trump’s lawyers, said he had not intended to misrepresent Kalt’s work.
“Ultimately Professor Kalt did not agree with our position, but he did explain it well and we wanted to give him credit for that,” Schoen told Reuters. “I can assure you that it was never our intention to in any way mislead as to Professor Kalt’s position.”
The charge of “incitement of insurrection” passed by the Democratic-led House of Representatives on Jan. 13 focused on Trump’s speech to a crowd of supporters shortly before hundreds of them stormed the Capitol, sending lawmakers into hiding and leaving five people dead including a police officer.
Trump’s lawyers are seeking to persuade members of the narrowly divided 100-member Senate not to convict the Republican or to bar him from again serving in public office, while Democrats contend the former president has no defense.
Conviction requires a two-thirds majority, meaning 17 Republicans would need to join the Senate’s 50 Democrats in the vote. Based on preliminary votes and public comments, there appears to be little chance of that occurring..
‘NO DEFENSE FOR HIS ACTIONS’
Trump’s lawyers called the trial a “brazen political act” by Democrats with a “hunger for this political theater” with the intention to “silence a political opponent and a minority party.” Trump’s four-year term ended on Jan. 20.
“The evidence of President Trump’s conduct is overwhelming,” the nine Democratic House impeachment managers, who will serve as prosecutors, wrote in a brief. “He has no valid excuse or defense for his actions.”
Trump’s false claims that the Nov. 3 election won by Democrat Joe Biden was stolen, and his speech before the riot have left fissures in his party. Ten House Republicans voted to impeach him.
Trump’s lawyers said he was speaking only in a “figurative sense” when he told followers to go to the Capitol and “fight like hell” as Congress was formally certifying Biden’s election win.
Trump’s use of the word “fight,” the defense said, “could not be construed to encourage acts of violence.”
“Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever,” they wrote.
Trump’s lawyers said he could not be held responsible for the actions of “a small group of criminals – who had come to the capital of their own accord armed and ready for a fight.”
Several of the roughly 200 people charged following the riot have tried to shift at least some blame onto Trump as they defend themselves in court or in the court of public opinion.
Also on Monday, the office of Georgia Secretary of State Brad Raffensperger opened a probe into Trump’s efforts to overturn the state’s 2020 election results, a step that could lead to a criminal investigation by state and local authorities.
Raffensperger, a Republican, had faced calls to open a probe after Trump was recorded in a Jan. 2 phone call pressuring him to overturn the state’s election results based on unfounded voter fraud claims.
The Democratic managers ridiculed Trump’s defense argument that he was simply exercising his free-speech rights under the Constitution’s First Amendment.
“The House did not impeach President Trump because he expressed an unpopular political opinion,” the Democrats wrote. “It impeached him because he willfully incited violent insurrection against the government.”
Defense lawyers Schoen, Bruce Castor and Michael van der Veen said the Constitution “does not provide for the impeachment of a private citizen who is not in office.” A failed Jan. 26 bid to dismiss the case on that basis drew support from 45 of the 50 Senate Republicans.
“Republicans are dead wrong if they think an impeachment trial of a former president is unconstitutional,” countered Senate Majority Leader Chuck Schumer, speaking on the Senate floor on Monday.
Schumer’s office said the trial would open on Tuesday with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Trump is no longer president. Beginning on Wednesday at noon, there will be up to 32 hours of trial debate, and the Senate would vote on whether to allow witnesses if House prosecutors want any, his office said.
Trump’s office said in a statement his legal team was satisfied with the structure of the trial. Schoen sent a letter to Senate leaders late on Monday asking them to proceed with the trial over the Jewish Sabbath this weekend even though he will not participate – but the Senate schedule remained unclear.
Trump’s first impeachment trial, on charges of abuse of power and obstructing Congress arising from his request that Ukraine investigate Biden and his son Hunter, ended in February 2020 in acquittal by the then Republican-led Senate.
(Reporting by David Morgan, Rick Cowan and Jan Wolfe; Additional reporting by Makini Brice, Susan Cornwell and Karen Freifeld; Writing by Will Dunham and James Oliphant; Editing by Scott Malone, Grant McCool and Peter Cooney)