The second impeachment trial of former President Donald Trump begins this week as Senate leaders are closing in on an agreement that would give each side up to 16 hours to present their cases and the potential for a debate and voting on calling witnesses if the House impeachment managers seek it, according to a person familiar with the talks.
Both Trump’s lawyers and the House managers exchanged another round of pretrial legal briefs on Monday ahead of the beginning of the trial, in what amounted to a preview of the arguments that senators will hear on the floor in the coming days.
Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell are finalizing the trial organizing resolution that will lay out the rules of the proceedings. While the agreement is not set, it would include a four-hour debate on the constitutionality of the trial on Tuesday, followed by a vote on that question.
Beginning Wednesday at noon ET, the impeachment managers and Trump’s defense team would have up to 16 hours per side to make their presentations, the person said, down from the 24 hours each side was given for Trump’s first impeachment trial.
At the request of the managers, there would be an option to hold a debate and vote on calling witnesses. And at the request of Trump’s attorney David Schoen, an observant Jew, there would be no trial proceedings during the Sabbath, after 5 p.m. ET, on Friday through Saturday. Then the trial would reconvene on Sunday afternoon.
“We are finalizing a resolution that’s been agreed to by all parties — the House managers, the former President’s counsel, Leader McConnell and I — that will ensure a fair, honest, bipartisan Senate impeachment trial of Donald Trump,” Schumer said on Monday, adding that if the managers want to call witnesses, “There’ll be a vote on that — that’s what they requested.”
When the trial begins, the House impeachment managers intend to make their case both to the public and the 100 senators who are jurors for the trial that Trump is responsible for last month’s deadly riot at the US Capitol. They’ve been diligently preparing a presentation for when the trial gets underway Tuesday, relying on the hours of video footage available from January 6 to try to illustrate in visceral detail how the rioters were incited by Trump and his months of lies that the election was stolen from him.
While convicting Trump with a two-thirds vote is highly unlikely, the case will serve as the first detailed public accounting of how rioters temporarily halted Congress from certifying President Joe Biden’s win, violently attacked police officers and actively sought out then-Vice President Mike Pence and House Speaker Nancy Pelosi as they ransacked the Capitol.
Trump’s legal team plans to argue that Trump did not incite the rioters, and that the trial of a former President is unconstitutional after the House rushed to impeach Trump without giving him the chance to mount any defense.
‘Political theaters’ vs. ‘overwhelming’ evidence
On Monday, Trump’s legal team accused Democrats of creating “political theater” as they argued in a pretrial brief that the upcoming Senate impeachment trial was 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 Monday.
“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 added.
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. Trump’s team argued that his declaration on January 6 for his supporters to “fight like hell” was rhetoric being used in a “figurative” sense, and the managers ignored Trump’s comments about remaining peaceful.
“It was not and could not be construed to encourage acts of violence,” Trump’s lawyers wrote.
The House managers responded to Trump’s lawyers on Monday in a five-page, pretrial brief that pushed back on the contention that the trial was unconstitutional and Trump’s speech did not incite the rioters at the Capitol on January 6. The brief, which was written in response to Trump’s filing last week, argued that Trump’s reliance on the First Amendment was “utterly baseless” and it was provable Trump lied about election fraud.
“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.
“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,” they added.
The House managers have one more filing due Tuesday morning at 10 a.m. ET to respond to Monday’s brief from Trump’s team.
During Trump’s first impeachment trial, senators were required to sit at their desk during the lengthy arguments, though they didn’t always do so. But this year, senators won’t be required to remain at their desks due to the Covid-19 pandemic and social distancing.
A Senate official familiar with the planning said there will be seats reserved for senators in the public gallery above the chamber and the Senate’s “marble room” that’s just off the floor, where the trial will be shown on television. Senators will have to be on the Senate floor to vote.
‘I think it’s very unlikely’
On the eve of the trial, there appears to be little uncertainty about the final outcome. Even Republican senators open to voting to convict Trump say they recognize the votes aren’t there for a guilty verdict, which would require 17 Republican senators to join every Democrat to vote for conviction. Last month, 45 of the Senate’s 50 Republicans voted in favor of a procedural motion to dismiss the trial on constitutional grounds.
“I think it’s very unlikely, right?” Sen. Pat Toomey of Pennsylvania said on CNN’s “State of the Union” Sunday. “I mean, you did have 45 Republican senators vote to suggest that they didn’t think it was appropriate to conduct a trial. So, you can infer how likely it is that those folks will vote to convict. I disagreed with their assessment. I think it is constitutional.”
Toomey is one of the Republican senators that Democrats hope to convince to vote to convict Trump at the conclusion of the trial, after 10 House Republicans voted in favor of impeachment last month.
The other key Republican senators voted with Toomey and the Democrats that the trial was constitutional: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Ben Sasse of Nebraska.
Democrats’ case will rely on video of the rioters themselves on January 6 as well as their comments, laid out in subsequent indictments, of how they were inspired by Trump to attack the Capitol and attempt to stop the peaceful transfer of power.
Their case will also focus on Trump’s comments, both in the months leading up to the riots where he spread baseless conspiracy theories about election fraud, and on January 6 when he spoke before his followers marched to the Capitol.
‘100 witnesses present’
In their legal filing last week, Trump’s team argued that his speech was protected by the First Amendment, and he did not incite the rioters who attacked the Capitol. But perhaps the bigger argument his lawyers plan to make — and the one that Senate Republicans are likely point to in an acquittal vote — is that the trial of a former official is not constitutional.
Still, there have been legal scholars on both sides of the aisle who say that a trial is constitutional, as Trump was impeached by the House while he was still president and the Constitution gives the Senate the power to bar someone from holding future public office, in addition to removing officials from office.
Republican lawyer Charles Cooper, who represented former Trump national security adviser John Bolton during Trump’s first impeachment when Bolton resisted testifying, wrote in a Wall Street Journal op-ed Sunday that the Constitution does not bar the Senate from trying a former President.
“The senators who supported Mr. Paul’s motion should reconsider their view and judge the former president’s misconduct on the merits,” Cooper wrote.
Unlike Trump’s first impeachment, which was a complicated story about an effort for Ukraine to investigate Biden and the halting of US security aid, the impeachment managers are telling a story that senators know all too well after they were forced to flee the Senate after the rioters overran Capitol Police and closed in on the chamber.
It’s why the managers may not call any outside witnesses in the trial, unlike the first trial when the push for testimony was a central focus. The House managers last week sought testimony directly from Trump, but his lawyers quickly rejected that proposal, and Democrats are unlikely to seek a subpoena.
“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, and those will be the House and Senate members,” House Intelligence Chairman Adam Schiff, the lead impeachment manager during Trump’s first impeachment, said on NBC’s “Meet the Press.” “Whether you need additional witnesses will be a strategic call for the House managers.”
Debate over witnesses looms over start of trial
The trial rules being finalized by Senate leaders would offer House managers the option to seek a vote on calling witnesses, but that’s only keeping open the possibility — it’s not an indication on its own that the managers plan to do so.
Democrats’ desire for witnesses who might be able to corroborate Trump’s thinking and actions while the riots were unfolding is running into many Senate Democrats’ wishes for a quick trial so they can move onto passing Biden’s Covid-19 relief package. The problem for the managers is it’s unclear who they could call as a witness voluntarily who could speak to Trump’s mindset. Even if the Senate voted to subpoena a witness who was in the White House on January 6, there could be a court fight over executive privilege that would delay the trial.
Still, some Senate Democrats say they don’t want to hamstring the managers for the sake of speed. Because Democrats control the Senate, they have the votes to allow for witnesses without GOP support, unlike in the 2020 trial.
“I think we should be consistent,” Sen. Chris Murphy, a Connecticut Democrat, said on “Fox News Sunday” about Senate Democrats’ push in the first trial to subpoena witnesses.
“This time, we saw what happened in real time,” Murphy added. “President Trump sent that angry mob to the Capitol on live TV, so it’s not as important that you have witnesses, but if the House managers want witnesses, we should allow them to be able to put them on.”
This story and headline have been updated with additional developments Monday.