Democratic impeachment managers set to have their bid to call witnesses refused by the Senate

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. 

Ahead of the announcement on trial logistics, Trump’s lawyers lasted the impeachment trial as ‘political theater’ and charged Democrats cannot constitutionally impeach a former president while 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 legal team filed a 78 page brief, the Democratic House impeachment managers responded with a four-page one of their own.  

Trump’s attorneys argue 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.

They 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. 

‘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. 

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.

Senators will also have to vote on whether or not to call witnesses, under a deal being worked out between Schumer and McConnell. Schumer announced the terms of the bipartisan deal on the Senate floor Monday afternoon. The resolution outlines how the trial will be conducted.

‘The structure we have agreed to is imminently fair,’ he said. 

Under the terms of the deal, 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. 

‘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.’

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.