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Trump’s Second Impeachment Trial Begins with Arguments over Constitutionality

Senate Majority Leader Chuck Schumer (D-NY) speaks during a news conference at the U.S. Capitol in Washington, D.C., January 26, 2021. (Al Drago/Reuters)

Donald Trump’s second impeachment trial will begin Tuesday, with Democrats set to argue that the Constitution permits them to impeach the former president for committing “incitement of insurrection,” despite his having left office.

Democrats will attempt to pin the pro-Trump rioters’s actions on the 45th president, arguing that his rhetoric in the hours before — and in the months leading up to — the electoral-vote count on January 6 stirred up supporters and led them to storm the Capitol. The unrest left five people dead, including one Capitol Hill police officer. 

Senate leaders are expected to reach an agreement that would allow each side up to 16 hours to present their cases, beginning on Wednesday at noon — a decrease from the 24 hours each side was allotted for Trump’s first impeachment trial. 

The organizing resolution being negotiated by Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell would also allow for an option to hold a debate and a vote to call on witnesses should the House managers seek to do so, according to CNN

Trump’s attorney David Schoen has requested that the trial proceedings be paused during the Sabbath — after 5 p.m. ET on Friday through Saturday — before reconvening on Sunday afternoon.

The Senate will vote on the resolution before the trial’s arguments begin. Lawmakers on both sides of the aisle are hopeful it will have bipartisan support and believe the trial will be shorter than Trump’s first impeachment trial, which lasted three weeks.

The agreement would also include a four-hour debate on the constitutionality of the trial on Tuesday, followed by a vote on whether it is constitutional. 

Trump’s lawyers are arguing that it is unconstitutional for the Senate to hold an impeachment trial for a former president and that his rhetoric is protected by the First Amendment. They also say that he did not incite the rioting and that the House rushed to impeach Trump without offering him time to prepare a defense.

The former president’s lawyers have had less than two weeks to prepare for the trial after all five of Trump’s previous impeachment lawyers abruptly left his legal team. South Carolina-based lead attorneys Butch Bowers and Deborah Barbier reportedly exited because Trump wanted them to defend his unfounded allegations of widespread election fraud and the pair were unwilling to do so, a source told the Associated Press.

Meanwhile, the House impeachment managers have accused Trump of “the most grievous constitutional crime ever committed by a President” in a brief filed on Monday in response to the Trump team’s answer to the article of impeachment.

“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 brief by the House impeachment managers reads. “There is no ‘January Exception’ to the Constitution that allows Presidents to abuse power in their final days without accountability.”

The Senate is likely to fall short of the two-thirds vote needed to convict Trump: last month 45 of the Senate’s 50 Republicans voted in support of a procedural motion to debate dismissing the trial on constitutional grounds.

Senator Pat Toomey (R., Pa.) said Sunday he thinks it is “very unlikely” that Trump will be convicted.

“I mean, you did have 45 Republican senators vote to suggest that they didn’t think it was appropriate to conduct a trial,” he said on CNN’s State of the Union. “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 was one of five Republican senators to vote along with the Democrats in favor of tabling the resolution claiming that the trial was unconstitutional. The other senators were Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, and Ben Sasse of Nebraska.

However, in the unlikely event that Trump is convicted, the Senate could then move to bar the former president from holding office going forward with a simple majority vote.

Democrats will make their case using video of the unrest on January 6 and rioters’s own statements saying how they felt called to action by Trump to attempt to stop President Biden’s Electoral College victory from being certified.

Their case will also rely upon Trump’s comments in the months leading up to the siege on the Capitol, in which he peddled unfounded claims about widespread election fraud, including on January 6 when he held a rally outside the White House and told his supporters to march down to the Capitol.

“President Trump’s incitement of insurrection was itself a frontal assault on the First Amendment. As a matter of law and logic—not to mention simple common sense—his attempted reliance on free speech principles is utterly baseless,” the impeachment managers’s brief says. “[T]o be clear, this is not a case about ‘protected speech.’ The House did not impeach President Trump because he expressed an unpopular political opinion. It impeached him because he willfully incited violent insurrection against the government.”

Trump’s lawyers argued in a filing last week that it is impossible to prove whether his claims that he had won the election were “accurate or not.”

“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false,” Trump’s lawyers said.

The House managers rejected this argument on Monday: “To call these responses implausible would be an act of charity. 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. When President Trump demanded that the armed, angry crowd at his Save America Rally ‘fight like hell’ or ‘you’re not going to have a country anymore,’ he wasn’t urging them to form political action committees about ‘election security in general.'”

The House managers last week requested testimony from Trump, but his lawyers rejected that proposal. Democrats are unlikely to seek a subpoena.

In contrast with Trump’s first impeachment trial, in which he was acquitted of abuse of power and obstruction of Congress charges, managers may not call any outside witnesses.

In this case, lawmakers saw firsthand the “insurrection” that led to the House’s passing a single article of impeachment against Trump, as lawmakers were inside the Capitol when the unrest began. Many were evacuated or forced to find shelter as rioters broke into the building.

“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,” said House Intelligence Committee Chairman Adam Schiff. “Whether you need additional witnesses will be a strategic call for the House managers.”

However, Trump’s former White House chief of staff Mark Meadows hit back against the allegations against his former boss, saying the impeachment trial is “all about a political theater” on Sunday.

“It’s really about Democrats trying to once again make a political point,” he said in an appearance on Fox News. “Listen, this whole impeachment is designed to remove someone from office. President Trump is a private citizen at this point.”

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