The U.S. Senate is a day away from starting former President Donald Trump’s second impeachment trial with many of the details still to be ironed out even as the outcome — an acquittal — is all but assured.
“We have no agenda, we have no rules, we’ve been waiting, waiting, waiting,” said David Schoen, one of the lawyers representing Trump in the trial. “We’re planning as well as we can based on the briefs in the case, but we don’t know how it’s going to proceed at all.”
Trump’s defense team, led by Schoen and Bruce L. Castor Jr. is due to file its trial brief on Monday. They previewed their case in an initial response to the Jan. 13 House impeachment that argued the trial is unconstitutional because Trump is no longer in office, and said his fiery Jan. 6 speech to a crowd of supporters near the White House didn’t incite the violence and is protected by the First Amendment.
The nine House managers serving as prosecutors said in their 80-page brief last week that it’s “unmistakable” Trump is responsible for the insurrection, and that he must be convicted and barred from holding federal office again. They will emphasize his words at the rally held before the mob descended on the Capitol, as well as his actions leading up to the attack, including his months-long attempt to overturn the election results.
No Trump Testimony
Party leaders in the Senate are still working out rules for the trial, including how much time each side will get to present its case, and whether witnesses will be called. Trump’s lawyers have already rejected a demand from the House prosecutors for the former president to testify under oath.
The trial rules will determine how much of the day is devoted to the trial. Several Democrats want to hold the impeachment trial for only part of the day so they can continue to work on the confirmation of President Joe Biden’s cabinet nominees and his COVID relief package. Members from both parties said that they want the trial to be over quickly.
Trump’s legal team is basing its defense on the constitutional question of whether a former president can be convicted of an impeachable charge, while also saying that his actions fell short of incitement and were protected by the First Amendment. Many Senate Republicans have already been making that argument, a sign that Trump is all but assured of escaping conviction, as he did in first impeachment trial a year ago.
Last week, 144 lawyers and constitutional scholars from across the political spectrum argued in a letter reported by the New York Times that Trump’s speech and conduct on Jan. 6 were not protected by the First Amendment, terming the suggestion “legally frivolous.”
Still, 45 of 50 Senate Republicans voted for a resolution declaring the trial unconstitutional because Trump is no longer in office. It would take 17 Republicans along with all 50 senators on the Democrat side to convict Trump.
‘Divide the Country’
Senator Rand Paul of Kentucky, who led the effort to have the article of impeachment dismissed on constitutional grounds, said Sunday there is “zero chance of conviction” in the Senate trial.
“It is unconstitutional, but more than anything it’s unwise and going to divide the country,” Paul said on “Fox News Sunday.”
Pennsylvania Senator Pat Toomey, one of the five Republicans who voted against Paul’s measure, said it’s “very unlikely” there will be enough votes to convict Trump. “My job is going to be to listen to both sides of this, evaluate the arguments, and make a decision,” he said on CNN’s “State of the Union” on Sunday.
While it’s still unclear whether outside witnesses will be called to testify, the senators who will act as jurors in the trial experienced the Jan. 6 attack first-hand, and the impeachment managers plan to present video evidence as a refresher.
“We saw what happened in real time,” Senator Chris Murphy, a Connecticut Democrat, said on “Fox News Sunday.” “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.”
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