Senate leaders reach agreement on impeachment trial rules
(CNN) -- The second impeachment trial of former President Donald Trump begins this week as Senate leaders reached an agreement Monday, giving the impeachment managers and Trump's lawyers up to 16 hours each to present their cases and creating the option for a debate and vote to call witnesses -- if the House impeachment managers seek it.
Senate Majority Leader Chuck Schumer announced on the Senate floor Monday that the trial rules had been agreed to by Senate Republicans and Democrats, as well as the House managers and Trump's legal team. The Senate will vote on the rules on Tuesday, and the trial will kick off with a four-hour debate on the constitutionality of the proceeding followed by a vote, which is expected to pass with a majority vote.
"The structure we have agreed to is eminently fair," Schumer said. "It will allow for the trial to achieve its purpose: truth and accountability."
Both Trump's lawyers and the House managers exchanged another round of pretrial legal briefs on Monday ahead of the beginning of the trial, in what amounted to a preview of the arguments that senators will hear on the floor in the coming days.
The House managers will begin their presentation at noon ET Wednesday, with up to 16 hours to make their case to the Senate over two days. Then Trump's lawyers will have two days to give their presentation, followed by a session in which senators can ask written questions to both legal teams read by the presiding judge, just like in previous impeachment trials, Schumer said Monday.
At the request of the managers, there will be an option to hold a debate and vote on calling witnesses. Trump's attorney David Schoen, an observant Jew, had originally requested there be no trial proceedings during the Sabbath, after 5 p.m. ET, on Friday through Saturday but withdrew that request later Monday evening.
"We are finalizing a resolution that's been agreed to by all parties -- the House managers, the former President's counsel, Leader McConnell and I -- that will ensure a fair, honest, bipartisan Senate impeachment trial of Donald Trump," Schumer said Monday, adding that if the managers want to call witnesses, "There'll be a vote on that -- that's what they requested."
The Shabbat break could mean that Trump's team uses less than 16 hours, because the rules allow for eight hours per day over two days, and the trial as currently scheduled would only be in session for five hours on Friday, the first day for Trump's team to present.
Senate Minority Leader Mitch McConnell on Monday praised the agreement that was reached, saying that it "preserves due process and the rights of both sides."
"It will give senators as jurors ample time to review the case and the arguments that each side will present," McConnell said.
When the trial begins, the House impeachment managers intend to make their case both to the public and the 100 senators who are jurors for the trial that Trump is responsible for last month's deadly riot at the US Capitol. They've been diligently preparing a presentation for when the trial gets underway Tuesday, relying on the hours of video footage available from January 6 to try to illustrate in visceral detail how the rioters were incited by Trump and his months of lies that the election was stolen from him.
While convicting Trump with a two-thirds vote is highly unlikely, the case will serve as the first detailed public accounting of how rioters temporarily halted Congress from certifying President Joe Biden's win, violently attacked police officers and actively sought out then-Vice President Mike Pence and House Speaker Nancy Pelosi as they ransacked the Capitol.
Trump's legal team plans to argue that Trump did not incite the rioters, and that the trial of a former President is unconstitutional after the House rushed to impeach Trump without giving him the chance to mount any defense.
'Political theater' vs. 'overwhelming' evidence
On Monday, Trump's legal team accused Democrats of creating "political theater" as they argued in a pretrial brief that the upcoming Senate impeachment trial was unconstitutional because Trump is no longer president.
"This was only ever a selfish attempt by Democratic leadership in the House to prey upon the feelings of horror and confusion that fell upon all Americans across the entire political spectrum upon seeing the destruction at the Capitol on January 6 by a few hundred people," Trump's lawyers wrote Monday.
"Instead of acting to heal the nation, or at the very least focusing on prosecuting the lawbreakers who stormed the Capitol, the Speaker of the House and her allies have tried to callously harness the chaos of the moment for their own political gain," the brief added.
The 75-page legal brief from Trump's attorneys expands upon their initial response to the House's impeachment last week, in which they argued that the trial was unconstitutional, that Trump didn't incite the rioters and that his speech spreading false conspiracies about widespread election fraud is protected by the First Amendment. Trump's team argued that his declaration on January 6 for his supporters to "fight like hell" was rhetoric being used in a "figurative" sense, and the managers ignored Trump's comments about remaining peaceful.
"It was not and could not be construed to encourage acts of violence," Trump's lawyers wrote.
The House managers responded to Trump's lawyers on Monday in a five-page, pretrial brief that pushed back on the contention that the trial was unconstitutional and Trump's speech did not incite the rioters at the Capitol on January 6. The brief, which was written in response to Trump's filing last week, argued that Trump's reliance on the First Amendment was "utterly baseless" and it was provable Trump lied about election fraud.
"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," the House managers wrote.
"The evidence of President Trump's conduct is overwhelming. He has no valid excuse or defense for his actions. And his efforts to escape accountability are entirely unavailing," they added.
The House managers have one more filing due Tuesday morning at 10 a.m. ET to respond to Monday's brief from Trump's team.
During Trump's first impeachment trial, senators were required to sit at their desk during the lengthy arguments, though they didn't always do so. But this year, senators won't be required to remain at their desks due to the Covid-19 pandemic and social distancing.
A Senate official familiar with the planning said there will be seats reserved for senators in the public gallery above the chamber and the Senate's "marble room" that's just off the floor, where the trial will be shown on television. Senators will have to be on the Senate floor to vote.
'I think it's very unlikely'
On the eve of the trial, there appears to be little uncertainty about the final outcome. Even Republican senators open to voting to convict Trump say they recognize the votes aren't there for a guilty verdict, which would require 17 Republican senators to join every Democrat to vote for conviction. Last month, 45 of the Senate's 50 Republicans voted in favor of a procedural motion to dismiss the trial on constitutional grounds.
"I think it's very unlikely, right?" Sen. Pat Toomey of Pennsylvania asked on CNN's "State of the Union" Sunday.
Toomey is one of the Republican senators whom Democrats hope to convince to vote to convict Trump at the conclusion of the trial, after 10 House Republicans voted in favor of impeachment last month.
The other key Republican senators who voted with Toomey and the Democrats that the trial was constitutional are: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Ben Sasse of Nebraska. It's unclear if any other Republicans are considering voting to convict Trump.
"I don't know of anyone that their mind is not made up ahead of the impeachment trial," Sen. James Lankford, an Oklahoma Republican, said Monday. "The first question on the issue of constitutionality, that drives a lot of it and everything else. I think people are pretty locked down."
Democrats' case will rely on video of the rioters themselves on January 6 as well as their comments, laid out in subsequent indictments, of how they were inspired by Trump to attack the Capitol and attempt to stop the peaceful transfer of power.
Their case will also focus on Trump's comments, both in the months leading up to the riots where he spread baseless conspiracy theories about election fraud, and on January 6 when he spoke before his followers marched to the Capitol.
House GOP to help defend Trump publicly
In their legal filing last week, Trump's team argued that his speech was protected by the First Amendment, and he did not incite the rioters who attacked the Capitol. But perhaps the bigger argument his lawyers plan to make -- and the one that Senate Republicans are likely point to in an acquittal vote -- is that the trial of a former official is not constitutional.
Still, there have been legal scholars on both sides of the aisle who say that a trial is constitutional, as Trump was impeached by the House while he was still president and the Constitution gives the Senate the power to bar someone from holding future public office, in addition to removing officials from office.
Republican lawyer Charles Cooper, who represented former Trump national security adviser John Bolton during Trump's first impeachment when Bolton resisted testifying, wrote in a Wall Street Journal op-ed Sunday that the Constitution does not bar the Senate from trying a former President.
"The senators who supported Mr. Paul's motion should reconsider their view and judge the former president's misconduct on the merits," Cooper wrote.
A group of House Republicans allied with Trump are reprising their role at the former President's second impeachment trial to defend him in the public debate. Roughly a half-dozen House Republicans are aiding Trump's legal defense by planning to speak to reporters during breaks in the impeachment trial, according to a source familiar with the matter.
That's what the House Republicans did during Trump's first impeachment trial last year, when they would speak to television cameras not far from the Senate chamber during breaks in the proceedings, speaking along with Trump's lawyers. Senators from both parties would often be waiting in the wings to offer their take on the day's events, too.
The House members taking part in the effort to publicly defend Trump during the trial include Reps. Jim Jordan of Ohio, Lee Zeldin of New York, Elise Stefanik of New York, Mike Johnson of Louisiana, Matt Gaetz of Florida and Andy Biggs of Arizona, according to the source. While House members can't join Trump's legal team as a member of Congress -- Gaetz suggested last week he'd resign if asked to be part of Trump's legal team -- they can take part in the de facto impeachment trial spin room.
Jordan's Judiciary Committee staff is also helping the members with their prep for the trial. The Judiciary Committee Republican general counsel, Steve Castor, is a cousin to one of Trump's attorneys, Bruce Castor. Bruce Castor told a Pennsylvania radio station last week it was a connection that helped put him in touch with Trump before he was hired for the trial.
Debate over witnesses looms over start of trial
Unlike Trump's first impeachment, which was a complicated story about an effort for Ukraine to investigate Biden and the halting of US security aid, the impeachment managers are telling a story that senators know all too well after they were forced to flee the Senate after the rioters overran Capitol Police and closed in on the chamber.
It's why the managers may not call any outside witnesses in the trial, unlike the first trial when the push for testimony was a central focus. The House managers last week sought testimony directly from Trump, but his lawyers quickly rejected that proposal, and Democrats are unlikely to seek a subpoena.
The trial rules being finalized by Senate leaders would offer House managers the option to seek a vote on calling witnesses, but that's only keeping open the possibility -- it's not an indication on its own that the managers plan to do so.
Democrats' desire for witnesses who might be able to corroborate Trump's thinking and actions while the riots were unfolding is running into many Senate Democrats' wishes for a quick trial so they can move onto passing Biden's Covid-19 relief package. The problem for the managers is it's unclear who they could call as a witness voluntarily who could speak to Trump's mindset. Even if the Senate voted to subpoena a witness who was in the White House on January 6, there could be a court fight over executive privilege that would delay the trial.
Still, some Senate Democrats say they don't want to hamstring the managers for the sake of speed. Because Democrats control the Senate, they have the votes to allow for witnesses without GOP support, unlike in the 2020 trial.
"I think we should be consistent," Sen. Chris Murphy, a Connecticut Democrat, said on "Fox News Sunday" about Senate Democrats' push in the first trial to subpoena witnesses.
"This time, we saw what happened in real time," Murphy added. "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."
This story and headline have been updated with additional developments Monday.
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