Mr Trump spoke to a Save America rally nearby the US Capitol on January 6, where Congress and Senate members certified Joe Biden’s election victory, ahead of his supporters rioting in the Government building. Congress passed an article of impeachment against Mr Trump just eight days after the Capitol riots, accusing the former President of inciting the violence in Washington.
Bruce Castor and David Schoen have filed their first former response to the charge and claimed Mr Trump’s comments are protected under the First Amendment.
The lawyers stated Mr Trump was expressing his “opinion” the US election was “suspect”, which is allowed under constitutional free speech laws in the US.
They added: “It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states elections laws and procedures were changed by local politicians or judges without necessary approvals from state legislatures.”
Mr Trump repeatedly claimed he “won” the “rigged” election, and told the crowd at the Save America rally: “We won this election, and we won it by a landslide.”
The defence seeks to back down from the former President’s insistence the election was fraudulent, which he made without evidence.
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The lawyers then argue impeaching Mr Trump now he is no longer President is unconstitutional, and said House members “rushed” to charge him without due process.
Their brief said: “It is denied that the quoted provision currently applies to the 45th President of the United States since he is no longer ‘President’.
“The constitutional provision requires that a person actually hold office to be impeached.”
Despite the former President telling supporters to “fight like hell” against the results of the election, the lawyers also denied the remarks incited the mob.
Their brief added: “It is denied that the 45th President engaged in insurrection or rebellion against the United States.
“The 45th President believes and therefore avers that as a private citizen, the Senate has no jurisdiction over his ability to hold office and for the Senate to take action on this averment would constitute a Bill of Attainder.”
It follows Mr Trump’s original impeachment legal team walking out on the cases a week before the trial starts.
According to US outlet Axios, Mr Trump and former attorney Butch Bowers fell out over legal fees.
Lindsey Graham, South Carolina Republican Senator, said to the outlet: “I think there was some problems getting money for it, but it wasn’t [just] that.
“Just too many cooks in the kitchen.”
Jason Miller, a senior adviser to Mr Trump, added: “These guys are no longer relevant. We have our lawyers in place, we have a solid team, and we’re looking ahead.”
In order to convict Mr Trump on “incitement of insurrection”, 67 senators will need to vote for the article of impeachment.
Last week, 45 Republican Senators voted against the impeachment trial, and argued it is unconstitutional to impeach a President after their time in office.