Trump's second impeachment trial will run at least into next week as Senate gives both sides 16 hours to make their case: Ex-president's attorneys call it 'theater' and Dems say he committed 'worst constitutional crime ever'
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
Thursday: Democrats end their case against Trump
Friday noon: Donald Trump's team begin their defense with up to 16 hours to make their case on Friday and Saturday. An original plan to observe the Jewish sabbath in deference to Trump's attorney David Schoen has been dropped after he said it was unnecessary
Saturday: Trump's team ends their defense case
Sunday: 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.
Unknown but as early as Presidents Day: 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.
Donald Trump's second impeachment trial will run at least into next week as the Senate gave both sides 16 hours each to make their cases.
Senate Majority Leader Chuck Schumer and Senate GOP leader Mitch McConnell announced a deal on the Senate floor Monday afternoon on how the trial will proceed. The two leaders noted all sides - Democrat and Republican, Trump defense and House impeachment managers - agreed on the procedure.
The well of the Senate was ready for the trial to begin on Tuesday afternoon - with tables for the prosecution and defense set up around the dais.
Trump's attorneys praised the agreement on how the trial will be run.
'President Trump and his counsel are pleased that there was bipartisan support on how to structure the impeachment trial. We appreciate that Senate Republican leadership stood strong for due process and secured a structure that is consistent with past precedent. This process will provide us with an opportunity to explain to Senators why it is absurd and unconstitutional to hold an impeachment trial against a private citizen,' he and his legal team said in a statement.
Senators will have to vote on whether or not to call witnesses, under the agreement. And each side would have up to 16 hours over two days to present their cases.
It also includes a four-hour debate on the constitutionality of the trial on Tuesday, followed by a vote on that question, similar to a vote led by Republican Senator Rand Paul last month.
The presentations will begin at noon on Wednesday, going up to 16 for the House prosecutors and 16 hours for the Trump defense team.
Starting Friday at 5 p.m. and all day Saturday, the trial will pause for the Sabbath, at the request of Trump's attorney David Schoen, an observant Jew.
The trial would reconvene Sunday afternoon.
'The structure we have agreed to is imminently fair,' Schumer said Monday on the Senate floor.
'I’m pleased Leader Schumer and I were able to agree to a fair process and estimated timeline,' McConnell said Monday on the Senate floor. 'This structure has been approved by both former President Trump's legal team and the House managers.'
Ahead of the announcement on logistics, Trump's lawyers lasted the trial as 'political theater' and charged Democrats cannot constitutionally impeach a former president.
The House impeachment team countered that Trump committed the 'most grievous constitutional crime ever.'
The two sides gave preview to their forthcoming legal arguments the day before Trump's second impeachment trial is scheduled to begin in the Senate.
Trump's attorneys argued in their 78-page brief that the House impeachment managers are bringing an illegal case against the former president and claim his speech the morning of January 6th was not a call to insurrection.
'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 Jan. 6 by a few hundred people,' attorneys Bruce Castor, David Schoen, and Michael T. van der Veen wrote.
Trump attorney Bruce Castor was seen in the Capitol on Monday
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
The Democratic House impeachment managers, led by Rep. Jamie Raskin, argued Donald Trump committed the 'most grievous constitutional crime ever'
Trump's lawyers charge Democrats impeached Trump for 'their own political gain.' Democrats, along with 10 House Republicans, charged Trump on one count of impeachment - inciting the insurrection - after the MAGA riot that left five dead and a wake of destruction in the Capital.
'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,' they wrote.
'In bringing this impeachment in the manner in which they did, namely via a process that violated every precedent and every principle of fairness followed in impeachment inquiries for more than 150 years, they offered the public a master’s class in the art of political opportunism,' they argued.
House impeachment managers released a simple response: 'The House states that each and every allegation in the Article of Impeachment is true,' the managers, led by Democratic Rep. Jamie Raskin of Maryland, wrote in their four-page response.
'His incitement of insurrection against the United States government - which disrupted the peaceful transfer of power - is the most grievous constitutional crime ever committed by a President,' they charged of Trump.
'The House will establish at trial that President Trump merits conviction and disqualification to hold and enjoy any office of honor, trust or profit under the United States,' they added.
The brief from Trump's lawyers outlines their dueling defense arguments: The trial is unconstitutional and Trump did nothing wrong.
'In the past, Congress has acknowledged and exercised its duty to not impeach when an official is no longer in office. In the case involving the impeachment of President Richard M. Nixon, Congress decided not to impeach because he resigned from office,' the attorneys write.
Trump cannot be impeached because there is no office to remove him from, they argue.
'The only purpose of impeachment is to remove the President, Vice-President, and civil officers from office. When a President is no longer in office, the objective of an impeachment ceases,' they write.
They also argue the trial violates Trump's first amendment right to free speech and that the House rushed the impeachment process - Trump was impeached one week after the riot - which was a violation of due process.
'House Democrats completed the fastest presidential impeachment inquiry in history and adopted the Article of Impeachment over strong opposition and with zero due process afforded to Mr. Trump, against Constitutional requirements and centuries of practice,' they state.
They also throw references to two of Trump's favorite complaints: that then-President Barack Obama and Vice President Joe Biden 'spied' on his 2016 campaign and that Hillary Clinton should be locked up.
'This is a dangerous slippery slope that the Senate should be careful to avoid,' the attorneys write of the Senate trying Trump while he doesn't hold federal office.
'Were it otherwise, a future House could impeach former Vice President Biden for his obstruction of justice in setting up the Russia hoax circa 2016. While he could not be removed from the Vice Presidency because his term ended in 2017, he could be barred from holding future office. The same flawed logic the House Managers advance could apply to former Secretary of State Clinton for her violations of 18 U.S.C § 793. Impeachment cannot and should not be allowed to devolve into a political weapon,' they argue.
The FBI ran a counter intelligence operation of Trump's 2016 presidential campaign to see if Russia was trying to influence the election. Clinton was investigated by the FBI for using a private email server but was never charged with wrong doing.
Donald Trump's lawyers blasted the impeachment trial as 'political theater' and charged Democrats cannot constitutionally impeach a former president
Senate Majority Leader Chuck Schumer announced the bipartisan deal on how the trial will be conducted
Senate GOP Leader Mitch McConnell announced that all sides supported the agreement: 'This structure has been approved by both former President Trump's legal team and the House managers'
Trump's lawyers also argue he did not incite the crowd to attack the Capitol when he held a rally outside the White House on the morning of the insurrection.
'President’s Trump speech on January 6, 2021 was not an act encouraging an organized movement to overthrow the Unites States government,' they say.
They then go into detailed analysis of Trump's speech that morning.
'Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and 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. The only reference to force was in taking pride in his administration’s creation of the Space Force,' they claim.
They note the FBI, in its investigation, found the insurgency was planned days in advance.
'House Leadership simply cannot have it both ways. Either the President incited the riots, like the Article claims, or the riots were pre-planned by a small group of criminals who deserve punishment to the fullest extent of the law,' they write.
Democrats have countered that Trump's claims since Election Day - that the contest was fraudulent and stolen - stoked the flames of the attack.
Trump's second impeachment trial will begin Tuesday with a debate over whether it's even legal and will take Saturday off so one of his Jewish lawyers can observe the Sabbath.
Meanwhile, Democrats are struggling with impeachment managers' desire to call witnesses and party leadership wanting a speedy process. Trump, last week, declined an invitation from the impeachment managers to testify.
President Joe Biden is staying out of it.
Upon his return to the White House on Monday, after spending the weekend in Wilmington, Biden declined to answer when asked if Trump should lose his political rights: 'He got an offer to come and testify, he decided not to. Let the Senate work that out.'
The president is keeping a packed schedule while the Senate hears evidence. He'll visit the Pentagon on Wednesday and the National Institute of Health on Thursday.
And White House press secretary Jen Psaki said Monday that Biden won't watch the proceedings because 'we keep him pretty busy.'
'He will leave the pace and the process and the mechanics of the impeachment proceedings up to members of Congress,' she said at her daily press briefing.
Meanwhile, Democratic congressional leadership feels witnesses are not necessary since the actions and fallout Democrats are accusing the former president of inciting happened in plain sight and the prosecution could rely mostly on video.
Sources familiar with the nine impeachment managers' plan say they will use clips edited to dramatically intertwine Trump's remarks on January 6 with the ensuing Capitol riots shortly after in a blockbuster movie style sequence, Politico reported.
Schumer argued privately that Trump's alleged crimes took place in the public eye and can be shown and proven through video and tweets.
Donald Trump's lawyers argue his January 6th speech is protected under the first amendment and was not a call for insurrection
President Joe Biden declined to talk about the trial when he returned to the White House on Monday
Some of the Democratic managers wanted to call Capitol Police officers who clashed with rioters last month, others wanted to hear from Trump officials who were with him in the midst of the riots
With this course of action, the whole proceedings in the upper chamber are expected to be completed in as little as a week – with the most likely outcome being Trump walking away unscathed, again.
'The story of the president's actions is both riveting and horrifying,' lead impeachment manager Jamie Raskin of Maryland told The New York Times on Sunday.
'We think that every American should be aware of what happened,' the Democratic representative continued, 'that the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal office is to make sure that such an attack on our democracy and Constitution never happens again.'
Video clips weren't impeachment managers' first choice for presenting evidence.
Several managers wanted first-hand testimony to prove their case – while Schumer, House Speaker Nancy Pelosi and Joe Biden's administration are eager to get the trial over with and go forward with the Democratic agenda.
Those against calling witnesses feel especially strong about the matter as it becomes increasingly clear the second impeachment effort against Trump will fall in the upper chamber.
Some of the managers argued calling witnesses could help sway some Republicans – although they even conceded it wouldn't pull over the 17 needed to successfully convict the former president for 'incitement of insurrection.'
Among the proposed witness list were Capitol Police officers to tell their stories about fighting off the pro-Trump mob, while others floated inviting Republican officials in Georgia who say they were pressured by the former president to change the state's presidential election count. There were also talks of calling former White House officials who observed Trump in the midst of the riots – including those who resigned in the fallout.
Also last week, the House impeachment managers formally requested Trump testify under oath in his Senate impeachment trial.
'You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense,' Raskin wrote to Trump on Thursday.
'In light of your disputing these factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021,' he continued.
The Maryland representative said Trump's testimony, which would include and direct and cross examination, could be held privately or publicly at any time this week.
'We would be pleased to arrange such testimony at a mutually convenient time and place,' Raskin said.
Trump's team responded with a public release claiming the latest was just a 'publicity stunt' from Democrats.
'Your letter only confirms what is known to everyone; you cannot prove your allegations against the 45th President of the United States, who is now a private citizen,' the statement put out by Trump's defense lawyers David Schoen and Bruce Castor read.
Some Democrats still advocating for witness testimony say while it may not change the outcome of whether Trump is convicted, it could at least potentially deter parts of the GOP electorate that still support him.
Democrats argue Trump 'incited an insurrection' in his speech before the riots where he said: 'You'll never take back our country with weakness,' urging supporters to 'fight like hell'
Impeachment managers also tried to compel the former president to testify, to which his lawyers responded was confirmation 'you cannot prove your allegations against' Trump
In a January 6 rally outside the White House, Trump continued to pedal his claims of election fraud to a crowd of thousands of his supporters who descended on Washington, D.C. to protest Congress certifying the Electoral College outcome for Joe Biden.
'You'll never take back our country with weakness,' Trump said during his speech before the Capitol storming as he urged supporters to 'fight like hell'.
Privately, 45 Republicans have already said the impeachment process is in itself unconstitutional because Trump is no longer president – exhibiting their clear desire to get the trial over with and vote against conviction.
Kentucky Senator Rand Paul told 'Fox News Sunday' over the weekend the Senate impeachment trial is 'over before it starts' as Democrats need at least 17 Republicans to cross the line
'Is there any chance that the Senate will vote to convict Donald Trump?' Fox News' Chris Wallace asked Paul on Sunday.
'Zero chance of conviction,' the Republican senator responded. '45 Republicans have said it's not even a legitimate proceeding so it's really over before it starts.'
Another Republican argument against impeachment is that Trump's words were protected by free speech.
Paul said Sunday that free speech, a fundamental of the First Amendment of the Constitution, should not be punished.
'Are we going to impeach, and potentially criminally prosecute people for political speech when they say, 'Get up and fight for your country, let your voices be heard.'? Has nobody in this country heard of figurative speech?' Paul lamented.
He also argued that if Democrats want to use speech to prosecute people, they need to look within their own ranks.
'I think if we're going to criminalize speech and somehow impeach everybody who says, 'Oh, go fight to hear your voices heard,' I mean really we ought to impeach Chuck Schumer then,' Paul said during his interview on 'Fox News Sunday.' 'He went to the Supreme Court, stood in front of the Supreme Court and said specifically, 'Hey Gorsuch, hey Kavanaugh – you've unleashed a whirlwind and you're going to pay the price. You won't know what hit you if you continue with these awful decisions.'
'This inflammatory wording, this violent rhetoric from Chuck Schumer was so bad that the Chief Justice, who rarely says anything publicly, immediately said this kind of language is dangerous as a mob tried to invade the Supreme Court,' he added.
Republican Senator Rand Paul said Sunday the impeachment trial is a 'partisan farce' that has 'zero chance of conviction'
'So if people want to hold President Trump accountable for language, there has to be a consistent standard,' Paul said.
'And to my mind, it's a partisan farce because they're not doing anything to Chuck Schumer, not doing anything to Representative Omar, not doing anything to Maxine Waters. It's just not fair. It's just partisan politics under a different name.'
Trump's impeachment defense attorneys said Friday they also plan to show video during the trial this week showing Democrats inciting violence in the midst of the Black Lives Matter riots over the summer and also in general using 'inflammatory rhetoric' to encourage action against Republicans and Trump supporters.
'Well, you know, 2020 was somewhat of an unusual year, and it wasn't all due to COVID,' Trump's defense attorney Bruce Castor told Fox News on Friday, referencing the riots that overtook the country following the death of George Floyd and subsequent nationwide protests and riots.
'There's an awful lot of tape of cities burning and courthouses being attacked and federal agents being assaulted by rioters in the street cheered on by Democrats throughout the country – and many of them in Washington using, really the most inflammatory rhetoric that's possible to use,' he told Fox's Laura Ingraham.
'And certainly there would be no suggestion that they did anything to incite any of the actions.'