The historic second impeachment trial will open on Tuesday, on the Senate floor that was invaded by rioters, with a debate over the constitutionality of the proceedings. In a brief filed on Monday, Trump’s lawyers assailed the case as “political theater” and argued that the Senate “lacks the constitutional jurisdiction” to try a former president after he has left office – an argument Democrats promptly rejected.
Exactly one week after the Capitol assault, Trump became the first president to be impeached twice by the House of Representatives. This week, he will become the first former president to stand trial. It would take 17 Republicans joining all Democrats in the Senate to find Trump guilty, making conviction highly unlikely.
Nevertheless, when opening arguments begin later this week, House Democrats will try to force senators to see the assault on the Capitol as the culmination of Trump’s long campaign to overturn the result of the election he lost to Joe Biden. Relying on video and audio recordings, impeachment managers, led by the Maryland congressman Jamie Raskin, will try to marshal the anger and outrage many members of Congress expressed in the aftermath of the riot, which sought to prevent them from counting electoral college votes and thereby to disrupt the transition of power.
In a 78-page brief submitted to the Senate on Monday, Trump’s lawyers laid out a two-pronged rebuttal, also arguing that his rhetoric was in no way responsible for the Capitol attack.
The senators will grapple with the constitutional question on Tuesday, when they are expected to debate and vote on the matter. Though scholars and a majority of senators say they believe the trial is constitutional, many Republicans have seized on the technical argument that a former president cannot be tried for “high crimes and misdemeanors” as a way to justify support for acquitting Trump without appearing to condone his behavior.
In their own pretrial filing on Monday, the House managers dismissed the arguments laid out by Trump’s lawyers and vowed to hold Trump accountable for the “most grievous constitutional crime ever committed by a president”.
“Presidents swear a sacred oath that binds them from their first day in office through their very last,” they wrote. “There is no ‘January Exception’ to the constitution that allows presidents to abuse power in their final days without accountability.”
In a vote last month, all but five Republican senators voted to dismiss the trial as unconstitutional. Yet Charles Cooper, a leading conservative lawyer, rejected that view in a Wall Street Journal op-ed published on Sunday.
Because the constitution also allows the Senate to disqualify former federal officials from ever again holding public office, Cooper wrote, “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders”.
The trial begins just more than a year after Trump was first impeached, for pressuring Ukraine to investigate Joe Biden’s family. He was acquitted by the Senate.
Americans are now more supportive of convicting Trump, according to an ABC News/Ipsos poll released on Sunday. It found that 56% of Americans believe the Senate should convict Trump and bar him from future office.
Though the exact framework of the trial remains uncertain, subject to negotiations between the Senate majority leader, Chuck Schumer, and the chamber’s Republican leader, Mitch McConnell, it is expected to move much faster than Trump’s first trial.
Under a draft agreement between the leaders, obtained by the New York Times, opening arguments would begin on Wednesday, with up to 16 hours for each side. At the request of Trump’s attorneys, the proceedings will break on Friday evening for the Jewish Sabbath and resume on Sunday.
The House managers are expected to forgo calling witnesses, a major point of contention during Trump’s first trial. The former president declined their request to testify, a decision Raskin said “speaks volumes and plainly establishes an adverse inference supporting his guilt”.
The managers have indicated that they intend to lay out a comprehensive case, tracing Trump’s extraordinary efforts to reverse his defeat, including a call in which he pressured the Georgia secretary of state to “find” enough votes to overturn Biden’s victory there. When it became clear that all other paths were closed, they will argue, Trump turned his attention to the certification vote on Capitol Hill, encouraging supporters to attend a rally held to protest against the result.
At that event, Trump implored them to “fight like hell” and march to the Capitol to register their discontent – words his defense team will argue are protected under the first amendment.
The House managers contend that “it is impossible to imagine the events of 6 January occurring without President Trump creating a powder keg, striking a match, and then seeking personal advantage from the ensuing havoc”.