The second impeachment trial of former President Donald Trump begins in the Senate on Tuesday, where senators will be confronted with the violent events of the January 6 riot and whether Trump is culpable for inciting the insurrectionists that attacked the Capitol and placed their lives in danger.
The managers intend to lay out a “devastating” case that Trump is responsible for the riot, from his actions in the weeks leading up to it and his failure to act to stop it, senior aides to the House impeachment team said Tuesday.
The aides would not tip their hand on whether they might call witnesses at the trial, but they told reporters that the managers’ argument would be a detailed and compelling case that leaves no doubt about Trump’s guilt. The managers planned to present new evidence, the aides said, but they would not elaborate.
The case would be like a “violent crime criminal prosecution,” one aide said.
Trump’s lawyers have countered that Trump did not incite the rioters, and that his speech about the election was protected by the First Amendment.
The historic impeachment trial has a number of firsts: It’s the first time in US history a president will be tried in the Senate court of impeachment for a second time. And it’s the first time that a former president will face the prospect of conviction and disbarment of office.
Ahead of the opening arguments, the House impeachment managers filed their final pretrial legal brief that rebutted the Trump team’s filing from Monday, in what amounts to a preview of the arguments that will play out in the Senate in the coming days.
Democratic senators came away from a conference call this morning with Senate Majority Leader Chuck Schumer under the belief that a final vote on conviction could occur Sunday or Monday if there are no witnesses, according to multiple senators on the call.
House managers have not yet requested witnesses but are preserving that option in case they need witnesses’ testimony to rebut an argument made by the Trump team, which would extend the length of the trial into at least next week. The timing is also a bit uncertain because it’s unclear how much time the Trump team will use, but they’re not expected to use their full 16 hours.
On the trial’s opening day, which begins at 1 p.m. ET, Trump’s title of former president will be front and center. After the Senate approves the rules of the trial, the Senate will hear from the House impeachment managers and Trump’s team about whether the trial itself is constitutional.
After four hours of debate, the Senate will vote on the matter. While that vote could halt the trial if the Senate voted it was unconstitutional, a similar procedural vote forced by GOP Sen. Rand Paul of Kentucky failed 55-45 last month.
The House’s lead impeachment manager, Jamie Raskin of Maryland, will kick off the House’s two-hour presentation, followed by Joe Neguse of Colorado and David Cicilline of Rhode Island, the aides said.
The House aides argued that once the Senate votes on Tuesday on the matter, which only needs a majority vote, the constitutional question should be considered settled like any other trial motion.
But while Democrats are sure to win this vote, the constitutionality question looms over the entirety of the trial, because Republicans have coalesced around the argument as a reason to acquit Trump. Conviction requires two-thirds majority, or at least 17 Republican senators to join all members of the Democratic caucus.
Democrats have argued there’s plenty of precedent to hold the trial for Trump, who was impeached by the House while he was still in office. They’ve pointed to legal scholars from both sides of the political spectrum saying the Senate has jurisdiction to convict Trump, as well as the Senate precedent holding trials previously for former officials who were impeached.
“The Framers’ intent, the text of the Constitution, and prior Congressional practice all confirm that President Trump must stand trial for his constitutional crimes committed in office,” the House managers wrote in a legal brief Monday. “Presidents swear a sacred oath that binds them from their first day in office through their very last. There is no ‘January Exception’ to the Constitution that allows Presidents to abuse power in their final days without accountability.”
Trump’s lawyers and many Republican senators, however, say they believe the trial is unconstitutional because Trump is no longer president.
“The Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds,” Trump’s lawyers wrote in their pretrial legal brief filed Monday.
Last month, five Republican senators voted against Paul’s motion to dismiss the trial, and it’s not clear if there have been any shifts. In a key sign showing the hurdles for convicting the former President, Missouri Sen. Roy Blunt, a member of Senate GOP leadership, said Monday he believes the proceedings are unconstitutional and he’s seen nothing that will change his mind so far.
Blunt said he will vote the same way Tuesday on the constitutional question as he will on the ultimate acquittal vote.
“I don’t know of anyone that their mind is not made up ahead of the impeachment trial,” said Sen. James Lankford, an Oklahoma Republican. “The first question on the issue of constitutionality, that drives a lot of it and everything else. I think people are pretty locked down.”
Unlike the last trial, senators will not be required to sit at their desk throughout the proceedings, due to the Covid-19 pandemic. They will be able to instead watch from the gallery above the Senate chamber or in a room off the floor that will show the trial on television. Masks will not be required on the floor, unlike on the House floor, but the expectation is the managers and Trump’s lawyers will wear masks unless they are speaking.
Senators are not allowed to speak during the trial as jurors.
After Tuesday’s debate and vote, the House managers will have 16 hours over two days to make their presentation beginning Wednesday, followed by two days for Trump’s lawyers. Senators will then have four hours to ask questions submitted in writing to both sides, and the Senate could debate and vote on whether to subpoena witnesses, though it remains unclear whether any will be sought at trial.
The Senate was initially going to recess for Shabbat on Friday evening, but Trump’s lawyer David Schoen withdrew that request, and the trial will not break on Friday evening and Saturday. The Senate has also scheduled a session for Sunday afternoon, if the trial is still going.
This story and headline have been updated with additional developments Tuesday.