Both sides adamant on eve of Trump trial
WASHINGTON — Lawyers for former President Donald Trump assailed congressional Democrats on Monday for trying to “silence a political opponent and a minority party” through impeachment, a day before Trump is set to stand trial in the Senate on charges that he instigated the deadly Jan. 6 Capitol riot.
The House managers prosecuting the case responded in kind, vowing to prove their case in the coming days. “We live in a Nation governed by the rule of law, not mob violence incited by Presidents who cannot accept their own electoral defeat,” they said.
“The evidence of President Trump’s conduct is overwhelming,” the managers wrote. “He has no valid excuse or defense for his actions … President Trump violated his Oath of Office and betrayed the American people.”
The 78-page defense filing is the most complete legal defense of Trump’s conduct to date, and it relies heavily on a challenge to the constitutionality of impeaching a former president, as well as a First Amendment defense of Trump’s rhetoric leading up to the riot — which sought to disrupt the final congressional certification of Trump’s loss.
But, mindful that they need to persuade only 34 Republican senators to secure an acquittal, Trump’s lawyers also cast their defense in a political light, calling the
rapid impeachment effort the culmination of a long Democratic campaign to marginalize Trump.
“The Senate must summarily reject this brazen political act,” Trump attorneys Bruce Castor Jr., David Schoen and Michael van der Veen wrote. They said the lone impeachment article was “unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal.”
The defense team added: “Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic, democracy and the rights that we hold dear.”
The nine House impeachment managers filed expansive arguments in favor of Trump’s conviction last week, accusing him of “a betrayal of historic proportions” by promoting the claim that he, not Democratic candidate Joe Biden, won the November election. Trump then stoked anger among his supporters, summoning them to Washington and finally directing them toward the Capitol as Congress met to count the electoral votes, the managers said.
“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense,” they wrote, “it is hard to imagine what would be.”
Trump’s lawyers outlined their rebuttal to that charge Monday: Simply put, Trump was engaged in free speech protected by the First Amendment when he questioned the election results — highlighting “electoral integrity issues essential to his career that he has consistently advocated, a position unpopular with his political opponents.”
“The attempt of the House to transmute Mr. Trump’s speech — core free speech under the First Amendment — into an impeachable offense cannot be supported, and convicting him would violate the very Constitution the Senate swears to uphold,” they wrote.
In their brief filing Monday, the managers blasted that free-speech argument as “utterly baseless,” responding that Trump’s claims and fiery rhetoric were entitled to no such protection.
“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,’” they said, quoting the Trump defense’s words.
In sum, the managers wrote: “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.”
House prosecutors are expected to rely on videos from the siege, along with Trump’s rhetoric refusing to concede the election, to make their case. His new defense team has said it plans to counter with its own cache of videos of Democratic politicians making fiery speeches.
White House press secretary Jen Psaki said Monday that Biden will be busy with the business of the presidency and won’t spend much time watching the televised proceedings. “He’ll leave it to his former colleagues in the Senate,” she said.
RAPID SCHEDULE
The decision on whether to convict Trump and potentially bar him from future office is now in the hands of an evenly split Senate, with 67 votes out of 100 needed to secure a conviction.
The exact structure of the trial has not been finalized, and it is subject to negotiations between Senate Majority Leader Charles Schumer, D-N.Y., and Minority Leader Mitch McConnell, R-Ky., with input from both the House impeachment managers and Trump’s defense team.
But the Senate appears to be on track to hold a roughly weeklong trial, one that is likely to begin with a one-day debate on the constitutionality of the proceedings, according to a person familiar with the discussions over the trial’s format.
That rapid schedule comports with the political imperatives of both Senate Democrats, who want to move quickly to pass Biden’s $1.9 trillion pandemic relief proposal, and Senate Republicans, who want to get past the internally divisive debate over the former president as soon as possible.
The trial is set to begin today. It is already on track to be markedly different from Trump’s first impeachment trial last year, which lasted three weeks in a GOP-majority chamber, with Supreme Court Chief Justice John Roberts presiding.
This time, Democrats are in charge, and senators of both parties are eyeing a more rapid proceeding. Instead of Roberts, Sen. Patrick Leahy, D-Vt. — the Senate president pro tempore — is expected to preside.
The current discussions, according to the person briefed on them, are focused on a format that would begin the trial today with a proposed four-hour debate that would be followed by a simple-majority vote on the constitutionality question.
The person familiar with the talks spoke on the condition of anonymity to describe private negotiations.
Trump’s legal team, some legal scholars and many Republican lawmakers have challenged whether it is constitutional to hold an impeachment trial for a former president. In a signal that the theory alone could be enough to win an acquittal, 45 of 50 Republican senators backed Trump on that question in a test vote last month — meaning another 12 Republicans would have to be persuaded that the trial is constitutionally permissible in order for the managers to have any hope of conviction.
While there are almost certainly enough votes to jump past that initial hurdle, the early vote could reinforce the likelihood of an acquittal early in the trial and put the proceedings on a glide path to a final verdict.
Congressional Democrats and more than 150 constitutional scholars, including a founder of the conservative Federalist Society, say post-presidential impeachment, conviction and disqualification from holding future office are permitted.
Legal scholars, including prominent conservatives, argue that the founders never intended to exempt someone like Trump from trial — a president who was impeached while in office but left before senators could judge him. They note that the Senate voted in the 19th century to try a former war secretary and can do so now for a president who is no longer in office.
The House impeachment managers echoed that argument in their own five-page memo filed Monday rebutting Trump’s effort to dismiss the charge.
“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.”
According to the current discussions, after the vote on constitutionality, opening arguments would kick off Wednesday, with both the House managers and Trump defense team entitled to up to 16 hours to present their cases.
The trial was set to break Friday evening for the Jewish Sabbath at the request of Trump’s defense team and to resume Sunday. But Trump attorney Schoen told senators in a letter late Monday that he was concerned about a delay and withdrew the request. The schedule will probably be adjusted, according to a person granted anonymity to discuss the planning.
A person involved in the planning process said Schoen’s reversal probably will push the Senate back toward its original plan to work through Friday night and Saturday before pausing the trial Sunday.
After the opening arguments, the impeachment managers could ask the Senate to take a vote on calling witnesses. If the managers did not seek witnesses, or the Senate voted to reject the request, the Senate would likely move quickly to a vote on conviction.
One unresolved matter is whether the Senate will provide for a question-and-answer session, which occupied two days in Trump’s first impeachment trial last year. Several Democratic senators have suggested that no such session is needed this time, given lawmakers’ firsthand familiarity with the events of Jan. 6.
A presidential impeachment trial is among the most serious of Senate proceedings, conducted only three times before, leading to acquittals for Andrew Johnson, Bill Clinton and then Trump last year.
Typically senators sit at their desks for such occasions, but the covid-19 crisis has upended even this tradition. Instead, senators will be allowed to spread out, in the “marble room” just off the Senate floor, where proceedings will be shown on TV, and in the public galleries above the chamber, to accommodate social distancing, according to a person familiar with the discussions.
Information for this article was contributed by Mike DeBonis and Tom Hamburger of The Washington Post; by Lisa Mascaro, Eric Tucker, Mary Clare Jalonick, Jill Colvin and Hope Yen of The Associated Press; and by Nicholas Fandos of The New York Times.