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.
The House managers will file a response to Trump’s initial filing by 12 p.m. ET, giving them an opportunity to push back on the claims that both Trump and most Senate Republicans are making that the trial itself is unconstitutional.
The parameters of the trial — which will be the first time in US history a former president is tried — still have not been set. Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell are negotiating the organizing resolution, which will dictate how long each side will have to make their arguments and how witnesses could be considered. The Senate will vote on the resolution before the trial’s arguments get underway, and both Democrats and Republicans are hopeful it will have bipartisan support.
All sides expect a shorter trial than Trump’s three-week impeachment trial in 2020, but the exact length of time for arguments is still undecided.
‘I think it’s very unlikely’
The other key Republican senators voted with Toomey and the Democrats that the trial was constitutional: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Ben Sasse of Nebraska.
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.
‘This is all about a political theater’
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.
“This is all about a political theater,” former Trump White House chief of staff Mark Meadows told Fox News’ Maria Bartiromo on Sunday. “It’s really about Democrats trying to once again make a political point. Listen, this whole impeachment is designed to remove someone from office. President Trump is a private citizen at this point.”
“We have the unusual circumstance where on the very first day of the trial, when those managers walk on the floor of the Senate, there will already be over 100 witnesses present, and those will be the House and Senate members,” House Intelligence Chairman Adam Schiff, the lead impeachment manager during Trump’s first impeachment, said on NBC’s “Meet the Press.” “Whether you need additional witnesses will be a strategic call for the House managers.”
Debate over witnesses looms over start of 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.”
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