Impeachment Trial Takes Shape as Senators Return to Site of Insurrection

Trump supporters break through a police barrier at the Capitol in Washington on Jan. 6, 2021. (AP Photo/John Minchillo, File)

WASHINGTON (CN) — Heading into this week’s impeachment trial of former President Donald Trump, a picture has begun to emerge of speedy but ultimately anticlimactic proceedings in the Senate.

While the exact timing is still in flux, unnamed sources familiar with trial rules have told The New York Times there will be four hours of debate on the constitutionality of the trial starting in the Senate on Tuesday, followed by a vote. 

Lawmakers could allot up to 16 hours of debate per side with consideration for witnesses Wednesday, but it appears unlikely that witnesses will be called. 

The House impeachment team has a wealth of video evidence to present from Jan. 6 — the day a mob of pro-Trump insurrectionists laid siege to the seat of the U.S. government — and many senators themselves were in the room when the attack occurred, so they could be called on to testify. Senator Patrick Leahy, a Vermont Democrat and Senate pro tempore, will preside over the trial and shape what evidence is admitted. It is a surreal dynamic for Leahy who, along with hundreds of other lawmakers, was a target of the Jan. 6 mayhem. 

The trial is expected to stretch through to early next week but no further. Trump’s attorney David Schoen has requested that proceedings halt on Saturday in order to observe the Sabbath. An Alabama-based civil rights and criminal defense lawyer, Schoen recently represented Trump ally Roger Stone on obstruction-of-Congress charges for which Stone was convicted in November 2019. Trump is also represented by Bruce Castor, a former district attorney Montgomery County, Pennsylvania, who famously dropped a 2005 prosecution of Bill Cosby that would lead to the comedian’s conviction over a decade later. Castor later brought an unsuccessful suit against Cosby accuser Andrea Constand for defamation.

Schoen and Castor filed a brief for Trump at around 11 a.m. on Monday, chalking up the latest impeachment saga to “Trump Derangement Syndrome” and calling the process defective, rushed and unconstitutional.

“The intellectual dishonesty and factual vacuity put forth by the House Managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking justice,” Castor and Schoen wrote. “Instead, 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.

“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.”

Schoen and Castor also dipped into the constitutional challenge that Senator Rand Paul unsuccessfully raised last month over whether the Senate has the authority to carry out the trial now that Trump is out of office. 

Saying that Article II of the U.S. Constitution limits impeachment to current officials only, Trump’s defense team claims that trying him would be “nothing more than the trial of a private citizen by a legislative body.” 

“Conviction at an impeachment trial requires the possibility of removal from office,” Castor and Schoen wrote. “Without that possibility, there cannot be a trial.”

In addition to labeling the impeachment “late,” the 78-page defense brief accuses Democrats of a “misplaced” pursuit to disqualify Trump from holding future office. They say that disqualification is not the purpose of impeachment, and it is “not available simply to disqualify a former public officer from future officeholding.”

Trump’s constitutional defense faced stiff argument this weekend, however, in an opinion piece for The Wall Street Journal from prominent conservative attorney Chuck Cooper.

A onetime attorney for former Trump administration officials John Bolton and Jeff Sessions, Cooper wrote Sunday that the Constitution allows for the Senate to ban officials from holding office if convicted of an impeachable offense. Trump, having successfully been impeached already, meets the criteria. 

Democrats are expected to tackle this theory head on, saying that Trump’s trial and conviction are necessary to ensure that he cannot run for office in the future. 

Conviction is only possible, however, with a two-thirds majority in the Senate — an exceedingly unlikely prospect as it would require 17 Republicans to side with Democrats.

But most Americans want their elected representatives to convict Trump, according to a Gallup poll published Monday.

About 45% do not support conviction, but 52% of those surveyed wish to see their senators vote in favor of convicting Trump. About 89% of Democrats polled are for it. Just 10% of Republicans surveyed said they wish to see their elected lawmakers convict Trump in the Senate.

In Trump’s last impeachment trial, Utah Senator Mitt Romney was the lone Republican who voted to convict.  

Though the exact schedule of this week’s trial is still being sorted out, The New York Times has reported that impeachment managers will devote Wednesday to the timeline of Jan. 6 that ultimately led to Trump supporters and others occupying the seat of American democracy for over five hours and temporarily disrupting the ceremonial count of electoral college votes already cast overwhelmingly in favor of Trump’s then-opponent and now President of the United States Joseph R. Biden. 

Not far from the Capitol, Trump held a gathering on the morning of January 6 billed as the “Save America Rally” to promote his disproven views that the 2020 election was stolen from Republicans. 

There Trump told his supporters they would have to “fight like hell” to regain political control. The message was a continuation of one he disseminated as far back as December when just before Christmas, he tweeted on Dec. 19 there would be a “big protest” on Jan. 6. He commanded: “Be there, will be wild!”  

Eventually, the mob on Jan. 6 overpowered U.S. Capitol Police, D.C. Metro Police and other law enforcement on site. Five people died from injuries sustained during or after the siege including Brain Sicknick, a U.S. Capitol Police officer who was bludgeoned with a fire extinguisher while defending the Capitol. Ashli Babbitt, a former U.S. Air Force veteran, was shot by police as she forced entry into the Speaker’s Lobby. 

The House voted to impeach Trump within a week of the insurrection, making him the only president ever impeached twice. He was impeached previously for exerting a pressure campaign on Ukraine’s President Volodymyr Zelensky that sought dirt on Biden’s son, Hunter Biden. For that request and his refusal to cooperate once the quid pro quo was revealed, Trump was eventually charged with abuse of power and obstruction of Congress.

Now, the former reality television host is charged with the high crime and misdemeanor of incitement of insurrection, an article spurred by what Democrats say was his express encouragement of rioters to storm the Capitol and seek to overturn the results of the 2020 election.

Impeachment managers entered their latest arguments against Trump on Monday afternoon, brushing away the defense that Trump’s speech was an expression of his First Amendment right not an incitement.

“President Trump’s incitement of insurrection was itself a frontal assault on the First Amendment,” the 5-page brief states. “As a matter of law and logic — not to mention simple common sense — his attempted reliance on free speech principles is utterly baseless.” 

The defense has argued that Trump’s call to “fight like hell” on Jan. 6 was merely about election security, and they deny that Trump threatened Republican Georgia Secretary of State Brad Raffensperger on a Jan. 2 phone call. On the call, Trump begged Raffensperger to find enough votes for him to overturn the results of the election

But Monday’s brief from the impeachment managers scoffs at the former president’s suggestion there is “insufficient evidence” available to determine whether he intended to incite the crowd.

“To call these responses implausible would be an act of charity,” the trial brief states. “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.’ And when the president of the United States demanded that Georgia Secretary of State Raffensperger ‘find’ enough votes to overturn the election — or else face ‘a big risk to you’ and ‘a criminal offense’— that was obviously a threat, one which reveals his state of mind (and his desperation to try to retain power by any means necessary). The House looks forward to proving each of these points at trial.” (Parentheses in original.)

In their first round of briefs last week, the impeachment managers argued that whatever right Trump has to challenge election results in court would not give him the right “to incite violence against the government and to obstruct the finalization of election results.” 

Impeachment managers requested Trump testify during the Senate trial. but Trump declined the invitation.

“Despite his lawyers’ rhetoric, any official accused of inciting armed violence against the government of the United States should welcome the chance to testify openly and honestly — that is, if the official had a defense,” Raskin, head impeachment manager, said in a statement last week. “We will prove at trial that President Trump’s conduct was indefensible. His immediate refusal to testify speaks volumes and plainly establishes and adverse inference supporting his guilt.” 

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