Donald Trump‘s impeachment trial begins on Tuesday, with his legal team setting out to argue both that the trial is unconstitutional and the former president blameless for the Capitol riot, and the prosecution painting a picture of a man whose words incited a mob to attack the seat of government in an insurrection that cost five people their lives.
The nine Democratic impeachment managers for the House, which impeached Trump last month, argue that he alone was responsible for inciting the mob who interrupted the presidential electoral count.
‘The evidence of President Trump’s conduct is overwhelming,’ the nine managers, who will serve as prosecutors, wrote in a brief.
‘He has no valid excuse or defense for his actions.’
Donald Trump is the first president in U.S. history to have been impeached twice by the House
Trump’s lawyers argue his January 6 speech is protected under the First Amendment and was not a call for insurrection
Trump attorney Bruce Castor (right) was seen in the Capitol on Monday
Several of the roughly 200 people charged following the riot have tried to shift at least some blame onto Trump as they defend themselves in court or in the court of public opinion.
Lawyers for Trump argue that he was exercising freedom of speech when he told his supporters to ‘fight like hell’ to overturn his defeat.
TIMETABLE FOR THE TRUMP TRIAL
Here is how the Trump impeachment will unfold:
Tuesday 1pm: Senate comes to order with president pro tempore Patrick Leahy (D-VT) presiding over four hours of presentation – two from each side – on whether the trial is constitutional
Tuesday 5pm: Senate votes on whether it is constitutional to move forward. If there are at least 51 votes to continue, which is certain, the Senate adjourns for the day
Wednesday 9am: Deadline for motions from both sides which could be voted on before the trial begins
Wednesday 11am: Deadline for responses to motions
Wednesday noon: If there are motions, they must be voted on but if there are none the trial opens with Democratic impeachment managers beginning up to 16 hours over Wednesday and Thursday of outlining their case
Friday noon: Donald Trump’s team begin their defense with up to 16 hours to make their case
Friday 5pm: The trial adjourns because Trump’s attorney David Schoen is an observant Jew who asked for it not to sit on the Sabbath
Sunday 2pm: The Senate returns to order. If Trump’s team end their defense on Sunday, senators move to the next phase.
At this point the Democratic impeachment managers and Trump’s attorneys can ask to call witnesses if senators vote to allow them on a simple majority vote. If there are witnesses, the trial will adjourn for them to be deposed, which could delay it significantly.
If there are no witnesses Senators have four hours to ask questions of both sides.
Then the Democratic impeachment managers can put forward a motion to introduce all their background evidence and Trump’s defense have an hour to argue against with both sides getting an hour in total, followed by a vote, with Trump’s side then able to do the same.
Presidents Day: The Senate continues sitting through the federal holiday.
Unknown: Once questions are over there are two hours each for both sides to sum up. Then the Senate votes. Conviction needs a two-thirds majority: 67 senators assuming all are present.
Trump’s lawyers said he was speaking only in a ‘figurative sense’ when he told followers to go to the Capitol and ‘fight like hell’ as Congress was formally certifying Biden’s election win.
Trump’s use of the word ‘fight,’ the defense said, ‘could not be construed to encourage acts of violence.’
‘Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever,’ they wrote.
Trump’s lawyers said he could not be held responsible for the actions of ‘a small group of criminals – who had come to the capital of their own accord armed and ready for a fight.’
The arguments against conviction are expected to be persuasive with Senate Republicans, most of whom have signaled that they will vote to acquit.
The trial is expected to last into the weekend and possibly longer.
Trump’s office said in a statement his legal team was satisfied with the structure of the trial.
Schoen sent a letter to Senate leaders late on Monday asking them to proceed with the trial over the Jewish Sabbath this weekend even though he will not participate – but the Senate schedule remained unclear.
It will begin at midday on Tuesday and could go late into some evenings.
On Tuesday the former president’s legal team, led by David Schoen and Bruce Castor, will begin proceedings by arguing that only a sitting president can be impeached.
The Senate will debate the constitutionality of the trial for four hours on Tuesday and then hold a vote on whether to dismiss it.
The effort to dismiss is expected to fail, because only a simple majority of votes is needed – which the Democrats have.
The Senate is currently balanced 50:50, but Kamala Harris as vice president will cast the deciding vote.
That will allow arguments in the trial to begin on Wednesday.
Democrats point to the opinion of many legal scholars — including conservatives — who say the trial is valid under the Constitution. They point to an 1876 impeachment trial of a secretary of war who had resigned and note that Trump was impeached before he left office.
Trump’s lawyers dismiss that precedent and say language in the Constitution is on their side.
Yet on Monday one legal scholar cited by Trump’s lawyers said Trump’s defense team misrepresented his work ‘quite badly.’
Michigan State University law professor Brian Kalt told Reuters in an email that his research was ‘definitely not’ accurately described in a 78-page document filed by Trump’s lawyers on Monday, the day before his second impeachment trial begins.
Kalt has joined other legal scholars in arguing the Senate trial is constitutional.
‘They didn’t have to be disingenuous and misleading like this,’ Kalt said later on Twitter, adding that ‘in several places, they misrepresent what I wrote quite badly.’
David Schoen, one of Trump’s lawyers, said he had not intended to misrepresent Kalt’s work.
‘Ultimately Professor Kalt did not agree with our position, but he did explain it well and we wanted to give him credit for that,’ Schoen told Reuters.
‘I can assure you that it was never our intention to in any way mislead as to Professor Kalt’s position.’
Chuck Schumer, laden with bags, is pictured arriving at his office on Monday
Protesters are seen outside the Capitol on Monday night on the eve of Trump’s trial
On Wednesday at noon, the arguments will begin for and against impeachment itself.
There will be up to 32 hours of trial debate – 16 hours for each side – and the Senate would vote on whether to allow witnesses if House prosecutors want any, Chuck Schumer, the Senate Majority Leader, said.
The Democrats are expected to try and take advantage of the senators’ own experiences, tapping into their emotions as they describe in detail — and show on video — what happened as the mob broke through police barriers, injured law enforcement officers, ransacked the Capitol and hunted for lawmakers.
Defense arguments are likely to begin Friday.
While the Democrats are expected to appeal to the senators’ emotions, Trump’s lawyers have signaled they will try and tap into raw partisan anger.
They repeatedly go after the Democrats personally in the brief, describing their case as a ‘selfish attempt by Democratic leadership in the House to prey upon the feelings of horror and confusion’ and another example of ‘Trump derangement syndrome’ after four years of trying to drive him out of office.
Trump, in February 2020, holds up a newspaper showing the Senate acquittal of his first trial
After the 32 hours, Senators will be allowed to ask questions.
Then they will vote.
Five Republican senators voted with Democrats two weeks ago not to dismiss the trial on constitutional grounds. Those senators so far appear the most likely to vote to convict Trump.
The five senators, all of whom have harshly criticized the president’s behavior, are Susan Collins of Maine, Ben Sasse of Nebraska, Mitt Romney of Utah, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania.
Democrats appear to have little chance of persuading 17 Republicans to find Trump guilty, the minimum number that they would need for conviction.
But some GOP senators who voted in favor of the effort to dismiss, such as Rob Portman of Ohio and Bill Cassidy of Louisiana, have said they are coming into the trial with an open mind.
Democrats are likely to focus, too, on senators who are retiring in 2022 and will have less to lose politically if they vote to convict.
The Democratic House impeachment managers, led by Rep. Jamie Raskin, argued Donald Trump committed the ‘most grievous constitutional crime ever’
The Senate chamber on Monday was set up for Donald Trump’s impeachment trial to begin on Tuesday – tables are set up around the dais for the defense and prosecution
Trump, who is currently at Mar-a-Lago, is said to be more focused on punishing his enemies
In addition to Toomey and Portman, also retiring are Alabama Sen. Richard Shelby and North Carolina Sen. Richard Burr.
The chief justice of the United States normally presides over the trial of a president, but because Trump has left office, the presiding officer will be Vermont Senator Patrick Leahy, who is the ceremonial head of the Senate as the longest-serving member of the majority party.
Once the senators reach a final vote on the impeachment charge – this time there is just one, incitement of insurrection – each lawmaker will stand up and cast their vote: guilty or not guilty.
A second impeachment acquittal by the Senate – as expected – would be a victory for Trump, and would prove he retains considerable sway over his party, despite his efforts to subvert democracy and widespread condemnation from his GOP colleagues after January 6.
Still, acquittal may not be the end of attempts to hold him accountable.
Sens. Tim Kaine, D-Va., and Susan Collins, R-Maine, floated a censure resolution after last month´s vote made clear that Trump was unlikely to be convicted.
While they haven´t said yet if they will push for a censure vote after the impeachment trial, Kaine said last week that ‘the idea is out there on the table and it may become a useful idea down the road.’