Second Trump Impeachment Trial Opens With Debate Over Senate's Power - WSJ

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WASHINGTON—House Democratic impeachment managers alleging that Donald Trump incited an insurrection at the Capitol were set to clash with defense lawyers Tuesday over whether a president can be tried after leaving office.

The first session in the second impeachment trial of Mr. Trump will feature presentations from both sides over the Senate's authority to hear the case, followed by a vote on the matter, which requires a simple majority and is expected to pass in the Democratic-controlled chamber.

The measure is expected to draw some Republican votes, as five GOP senators, including Sen. Mitt Romney of Utah and Sen. Susan Collins of Maine, have previously sided with Democrats on a question related to the constitutionality of trying the former president.

The House voted to impeach Mr. Trump last month, alleging he encouraged the mob that stormed the Capitol on Jan. 6 as part of a last-gasp effort to overturn President Biden's election victory. The article of impeachment points to a speech Mr. Trump gave at a rally preceding the riot where he urged supporters to "fight" and march to the Capitol.

Sixty-seven votes are required to convict Mr. Trump, meaning at least 17 Republicans would need to join all 50 Democrats. Only a handful of Republicans have indicated they could vote guilty.

The Democratic impeachment managers, led by Rep. of Maryland, are set to   argue that a president isn’t exempt   from a trial just because impeachable actions occurred in the final weeks of the administration.

“Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term,” impeachment managers argued in a brief last week. “Allowing presidents to subvert elections without consequence would encourage the most dangerous of abuses.”

But Mr. Trump’s lawyers—Bruce L. Castor Jr., David Schoen and Michael van der Veen— say the trial is improper .

“The purpose of impeachment is to remove someone from office, and unequivocally, this impeachment trial is not about removing someone from office, as Mr. Trump left office on January 20, 2021,” they wrote. “He is now both factually and legally, a private citizen.”

Legal experts have noted that removing a president from office isn’t the only consequence of impeachment; after a guilty verdict, the Senate could also vote to disqualify a person from holding future office on a simple majority vote. Democrats have said they plan to do so if Mr. Trump is convicted.

On Monday, Mr. Trump’s lawyers said he didn’t incite the crowd and that the rioters who breached the Capitol “did so of their own accord and for their own reasons.”

The lawyers said that in Mr. Trump’s speech that day he used the word “fight” a “little more than a handful of times and each time in the figurative sense,” making no explicit mention of rioting. The lawyers said the president was exercising his First Amendment rights.

The impeachment managers, acting as prosecutors during the trial, responded in their own five-page brief, saying Mr. Trump “has no valid excuse or defense” for his actions. “His efforts to escape accountability are entirely unavailing.”

On Tuesday, up to four hours of debate are allotted for the question of whether it is within the bounds of the Constitution to hold a trial for a president who is out of office but whose alleged crimes occurred during his tenure. A Congressional Research Service report from January concluded that while the matter is open to debate, the weight of scholarly authority agrees that former officials can be impeached and tried.

“I am so open to hearing what people have to say about it,” Sen. Bill Cassidy (R., La.) said Monday night. Mr. Cassidy had sided last month with 44 other Republicans by backing an attempt by Sen. Rand Paul (R., Ky.) to challenge the   constitutionality of trying a former president .

While that vote was seen as a gauge of Republican support for convicting Mr. Trump, it wasn’t a direct vote on constitutionality, as senators were voting on whether to debate or withdraw the question. Several Republicans made this distinction at the time.

“I voted for allowing debate on this issue and against tabling this important discussion,” said Sen. Rob Portman (R., Ohio), shortly after the vote. “As the trial moves forward, I will listen to the evidence presented by both sides and then make a judgment based on the Constitution and what I believe is in the best interests of the country.”

If senators vote to move forward with the trial, Mr. Trump’s defense and the House managers will both get up to 16 hours per side for presentations over several days. Both sides will also have the option to call for a debate and vote on calling witnesses. Democrats last week asked Mr. Trump to testify, which the former president’s lawyers shot down.


Mr. Castor said he didn’t see a need for witnesses but that if Democrats moved to call them, the defense would likely do so, too.