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Impeachment Briefing: Trump’s Trial Starts Tomorrow

This is the Impeachment Briefing, The Times’s newsletter about the impeachment investigation. Sign up here to get it in your inbox.

  • Mr. Trump’s lawyers submitted a 78-page brief to the Senate outlining the arguments they plan to make. You can read the full document here. (You can also read the 80-page brief the House impeachment managers — i.e., the prosecution — filed last week.)

  • The defense brief describes the trial as “political theater” ungrounded in constitutional law. It argues that the Senate has no jurisdiction to try a former president, and that even if it did, it would be wrong to blame Mr. Trump for the behavior of a “small group of criminals” — the rioters who stormed the Capitol on Jan. 6 in an effort to undo his electoral loss.

  • The House impeachment managers filed a five-page response asserting that “each and every allegation in the Article of Impeachment is true, and that any affirmative defenses and legal defenses set forth in the Answer” — meaning the defense brief — “are wholly without merit.”

  • Senate leaders reached an agreement on the rules of the trial, which could turn out to be extremely short.

Exactly two weeks ago, the House delivered its article of impeachment to the Senate.

Senators were sworn in as jurors the next day and voted, 55 to 45, to reject a Republican attempt to dismiss the trial as unconstitutional. This was technically a victory for Democrats, but the narrow margin suggested that there would not be enough Republican support to convict Mr. Trump.

Lawmakers then voted for a two-week postponement, endorsed by Senators Chuck Schumer and Mitch McConnell, the Democratic and Republican leaders.

The Senate mostly turned to other business, including confirming several of President Biden’s cabinet nominees, but there was still some impeachment-related action behind the scenes: The House managers filed their prosecutorial brief on Tuesday and then asked Mr. Trump to testify under oath. He refused.

The House impeachment managers argued in their brief last week that Mr. Trump — through his two-month campaign to delegitimize the results of the election, culminating in a speech on Jan. 6 in which he exhorted his supporters to fight — was “singularly responsible” for the riot at the Capitol.

They also argued that Mr. Trump’s behavior was exactly the sort of thing that the founders had in mind when they created the impeachment process.

“The framers of the Constitution feared a president who would corrupt his office by sparing ‘no efforts or means whatever to get himself re-elected,’” the brief says, quoting from the Constitutional Convention of 1787. “If provoking an insurrectionary riot against a joint session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”

Mr. Trump’s lawyers countered that it would be wrong to hold him personally accountable for his supporters’ actions, and insisted that he wasn’t encouraging violence when he said, “If you don’t fight like hell, you’re not going to have a country anymore.” They also argued that Mr. Trump had a First Amendment right to express his “opinion” that the election results were fraudulent, an argument that a bipartisan group of 144 constitutional lawyers called “legally frivolous.”

But to a striking degree, Mr. Trump’s lawyers and congressional allies have focused not on the merits of the case but on procedure — namely the idea that the Senate has no right to try Mr. Trump because, as a former president, he is a “private citizen.”

This argument relies on a narrow interpretation of the law: essentially, that former presidents can’t be tried because the Constitution doesn’t explicitly say that they can be. Many legal scholars disagree, including Charles J. Cooper, a prominent conservative lawyer. Mr. Cooper noted in an op-ed in The Wall Street Journal on Sunday that the Constitution lets the Senate bar convicted officials from any future public office, and argued that it therefore “defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.”

The proceedings will begin on Tuesday with four hours of debate on whether the Senate has jurisdiction to try Mr. Trump. Senators will then vote on that question. A simple majority — 51 votes — is all that’s needed to proceed, and Democrats should have no trouble getting that.

Then, assuming the Senate decides it has jurisdiction, the prosecution and defense will each have up to 16 hours to present arguments starting on Wednesday. The trial will pause from Friday evening through Saturday, because one of Mr. Trump’s lawyers observes Shabbat, and then reconvene on Sunday.

A key part of the House impeachment managers’ strategy will be to try to force Republicans to engage with the facts of Mr. Trump’s behavior and the details of what happened on Jan. 6 — to try, in other words, to prevent them from falling back on procedural objections. Democrats are likely to rely heavily on video footage from the riot, and on vivid personal accounts like the one Representative Alexandria Ocasio-Cortez, Democrat of New York, shared last week.

In some respects, they are trying to recapture the mood of the days immediately after the riot, when the fury at Mr. Trump was bipartisan and it seemed there might actually be 67 votes to convict him in the Senate.

A final vote could happen as soon as next week. To convict Mr. Trump, at least 17 Republican senators would have to join all 50 Democrats. That’s very unlikely, but if it did happen, the Senate could then vote by a simple majority to bar Mr. Trump from future public office.

  • Charlie Savage, a longtime Washington correspondent for The Times, wrote about the two men, David I. Schoen and Bruce L. Castor Jr., who will take center stage as Mr. Trump’s defense lawyers.

  • Nicholas Fandos, who will be our go-to reporter during the trial, spoke with Times Insider about covering two impeachments in less than two years.

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