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Senate sets stage for rapid Trump impeachment trial

Senate Majority Leader Charles E. Schumer (D-N.Y.) on Capitol Hill this month.
Senate Majority Leader Charles E. Schumer (D-N.Y.) on Capitol Hill this month. (Salwan Georges/The Washington Post)

The Senate on Monday prepared to launch a historic second impeachment trial of former president Donald Trump on the accusation that he instigated the deadly Jan. 6 Capitol riot, with Democratic and Republican leaders agreeing on a rapid timetable that could bring the proceedings to a close within a week.

The charge is serious, and the circumstances are unprecedented — it is the first impeachment trial for an ex-president as well as the first time any president has been impeached and tried twice. But there is little drama surrounding its outcome: Most Republican senators have signaled that they will not be voting to convict a former president.

Under a deal negotiated by Senate Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.), there still exists the possibility that senators could vote after four days of arguments to extend the trial by calling witnesses and examining testimony that could shed additional light on Trump’s actions and motivations surrounding the events of Jan. 6.

Senate Majority Leader Charles E. Schumer (D-N.Y.) on Feb. 8 said that “all parties” had agreed to the parameters for the upcoming impeachment trial. (Video: U.S. Senate)

But that appeared exceedingly unlikely Monday, with Democrats wanting to move quickly to pass President Biden’s $1.9 trillion pandemic relief proposal and Republicans seeking to get past the internally divisive debate over Trump as soon as possible. Several Senate aides, speaking on the condition of anonymity to describe internal discussions, said they expect an acquittal vote as soon as next Monday, which is Presidents’ Day.

Schumer said Monday that the deal would “allow for the trial to achieve its purpose: truth and accountability” — and force Republicans to go on the record.

“The merits of the case against the former president will be presented, and the former president’s counsel will mount a defense,” Schumer said. “Ultimately, senators will decide on the one true question at stake in this trial: Is Donald Trump guilty of inciting a violent mob against the United States, a mob whose purpose was to interfere with the constitutional process of counting electoral votes and ensuring a peaceful transfer of power?”

In a new filing Monday, the nine House impeachment managers said the evidence for Trump’s conviction was already “overwhelming” and promised to prove their case.

“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.

McConnell and Trump’s defense team also praised the trial agreement in brief statements.

“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,” Trump’s lawyers said, hours after they filed a 78-page legal brief — their most complete legal defense of Trump’s conduct to date.

In it, they relied heavily on the 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 congressional certification of Biden’s election win.

Read: Trump’s impeachment trial brief

Also 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 “silence a political opponent and a minority party” through impeachment.

“The Senate must summarily reject this brazen political act,” Trump attorneys Bruce L. Castor Jr., David Schoen and Michael T. 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.”

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 false claim that he, not 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, 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 a brief filing Monday, the managers blasted that free-speech argument as “utterly baseless,” saying that Trump’s false claims and incendiary 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 Democratic 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.”

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 trial 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 Chief Justice John G. Roberts Jr. presiding.

Trump’s case will feature broad legal questions about whether his actions violate the Constitution

This time, Democrats are in charge, and senators of both parties are eyeing a more rapid proceeding. Instead of Roberts, Sen. Patrick J. Leahy (D-Vt.) — the Senate president pro tempore — is expected to preside.

Once the rules for the trial are adopted, the proceedings will begin Tuesday with a four-hour debate over whether the Constitution allows the Senate to try a president who has already left office.

Trump’s legal team, some legal scholars and many Republican lawmakers have embraced arguments that it is unconstitutional to do so. In a signal that 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 an additional 12 Republicans would have to be persuaded that the trial is constitutionally permissible for the managers to have any hope of conviction.

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. That view got an important endorsement Sunday from an influential Republican lawyer, Charles J. Cooper, who argued in a Wall Street Journal op-ed that removal was only a “mandatory minimum” punishment for an official with an impeachment conviction.

“Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders,” wrote Cooper, who has represented numerous prominent conservative politicians and causes. He is currently representing House Republicans in a constitutional challenge to a proxy voting system instituted by Democrats.

Can a former president be subject to an impeachment trial?

After the debate, senators on Tuesday will vote on the constitutional argument against impeaching a former president. While there are almost certainly enough votes to clear that initial hurdle, an outcome short of a 67-vote majority could reinforce the likelihood of an acquittal and put the proceedings on a glide path to a final verdict.

Following the vote on constitutionality, opening arguments would kick off Wednesday, with House managers and the Trump defense team each entitled to up to 16 hours, spread over two days, to present their cases.

The weekend schedule was thrown into flux Monday evening, when Trump lawyer Schoen withdrew a request to recess the trial Friday evening through Saturday so he could observe the Jewish Sabbath. Instead, Schoen said in a letter to the Senate that he has chosen not to participate during that interval.

Schoen said he changed course because of a concern “about the delay in the proceedings in a process that I recognize is important to bring to a conclusion for all involved and for the country” and said “adjustments” had been made on the Trump defense team to allow for late Friday and Saturday sessions.

When the defense completes its arguments, senators would then be entitled to a four-hour period in which they could present written questions. That would be followed by two hours of debate on whether the parties should be permitted to subpoena witnesses or documents, followed by a vote on that question.

Should the Senate vote to subpoena witnesses or documents, the trial schedule would be upended, and senators would probably have to negotiate a new timetable for completion of the trial, which would be likely to extend the proceedings for weeks.

It could pose a difficult dilemma for Democrats who pushed strenuously — and unsuccessfully — for witnesses and documents during the first Trump impeachment. Now, with the trial putting a Democratic president’s governing agenda on hold, they are taking a different view.

“The core of the case here is the president’s own words that incriminate him, show his guilty intent, his undeniable actions — not just speech — in inciting an assault on the Capitol,” Sen. Richard Blumenthal of Connecticut told reporters last week.

Sen. Joe Manchin III (W.Va.), a moderate Democrat who has strongly criticized Trump’s actions surrounding the Capitol riot, said Monday that witnesses would be more appropriate in a potential criminal trial rather than in the Senate proceedings, which he called a “political trial.”

“The purpose is basically for history to know the seditious insurrection that happened and [Trump] being very much involved and responsible,” he said. “That’s what the trial will show.” Members of the Trump defense team and Republican lawmakers, meanwhile, have warned that if Democrats allow the managers to call witnesses, they could call witnesses of their own — extending the trial even further.

“You open up Pandora’s box if you call one witness,” Sen. Lindsey O. Graham (R-S.C.), who has advised Trump on his impeachment defense, said in a Fox News interview this month.

Should the Senate vote to skip witnesses, the proceedings would move quickly to four hours of final argument and then to an optional period of private Senate deliberations before a final vote on conviction.

Impeachment whip count: Where Democrats and Republicans stand

In last year’s trial — on abuse of power and contempt of Congress charges concerning Trump’s attempts to force Ukraine to investigate Biden’s son — the Senate chose not to deliberate as a group before holding the final votes. Trump was acquitted on both articles, with only one Republican, Sen. Mitt Romney of Utah, voting to convict.

This time, several other Republicans are thought to be in play for a possible conviction vote — starting with the five who backed the constitutionality of trying a former president in last month’s test vote: Romney and Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Ben Sasse (Neb.) and Patrick J. Toomey (Pa.). But that group falls far short of the 17 Republican votes that would be needed, in addition to 50 Democratic votes, to secure a conviction.

Sen. Tim Kaine (D-Va.) floated a possible Trump censure resolution last month — a suggestion that quickly sputtered. But he said at a Washington Post Live event Monday that he thought the weight of the trial could stir enough support for an option beyond conviction or acquittal.

“The evidence could be so graphic that it might make some Republicans say, ‘We have to do something,’ and Democrats . . . might decide, maybe it shouldn’t be impeachment or nothing, maybe there is an alternative we could consider,” Kaine said. “So I think it’s still very much a live option.”

Tom Hamburger and Paulina Firozi contributed to this report.