The second impeachment trial of former President Donald Trump is set to begin this week as Senate leaders agreed on giving the impeachment managers and Trump's lawyers up to 16 hours each to present their cases and creating the option for a debate and vote to call witnesses.
Senate Majority Leader Chuck Schumer announced on the Senate floor Monday that the trial rules had been agreed to by Senate Republicans and Democrats, as well as the House managers and Trump's legal team. The Senate will vote on the rules on Tuesday, and the trial will kick off with a four-hour debate on the constitutionality of the proceeding followed by a vote, which is expected to pass with a majority vote.
"The structure we have agreed to is eminently fair," Schumer said. "It will allow for the trial to achieve its purpose: truth and accountability."
Both Trump's lawyers and the House managers exchanged another round of pretrial legal briefs on Monday ahead, a preview of the arguments that senators will hear on the floor in the coming days.
The House managers will begin their presentation at noon ET Wednesday, with up to 16 hours to make their case to the Senate over two days. Then Trump's lawyers will have two days to give their presentation, followed by a session in which senators can ask written questions to both legal teams read by the presiding judge, just like in previous impeachment trials, Schumer said Monday.
"We are finalizing a resolution that's been agreed to by all parties - the House managers, the former President's counsel, Leader McConnell and I - that will ensure a fair, honest, bipartisan Senate impeachment trial of Donald Trump," Schumer said Monday, adding that if the managers want to call witnesses, "There'll be a vote on that - that's what they requested."
The Shabbat break could mean that Trump's team uses less than 16 hours because the rules allow for eight hours per day over two days, and the trial as currently scheduled would only be in session for five hours on Friday, the first day for Trump's team to present.
Senate Minority Leader Mitch McConnell on Monday praised the agreement that was reached, saying that it "preserves due process and the rights of both sides."
"It will give senators as jurors ample time to review the case and the arguments that each side will present," McConnell said.
When the trial begins, the House impeachment managers intend to make their case both to the public and the 100 senators who are jurors for the trial that Trump is responsible for last month's deadly riot at the US Capitol. They've been diligently preparing a presentation for when the trial gets underway Tuesday, relying on the hours of video footage available from January 6 to try to illustrate in visceral detail how the rioters were incited by Trump and his months of lies that the election was stolen from him.
While convicting Trump with a two-thirds vote is highly unlikely, the case will serve as the first detailed public accounting of how rioters temporarily halted Congress from certifying President Joe Biden's win, violently attacked police officers, and actively sought out then-Vice President Mike Pence and House Speaker Nancy Pelosi as they ransacked the Capitol.
Trump's legal team plans to argue that Trump did not incite the rioters and that the trial of a former President is unconstitutional and the House rushed to impeach Trump without giving him enough time and chance to defend himself.
"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 January 6 by a few hundred people," Trump's lawyers wrote Monday.
"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," the brief added.
The 75-page legal brief from Trump's attorneys expands upon their initial response to the House's impeachment last week, in which they argued that the trial was unconstitutional, that Trump didn't incite the rioters, and that his speech spreading false conspiracies about widespread election fraud is protected by the First Amendment. Trump's team argued that his declaration on January 6 for his supporters to "fight like hell" was rhetoric being used in a "figurative" sense, and the managers ignored Trump's comments about remaining peaceful.
"It was not and could not be construed to encourage acts of violence," Trump's lawyers wrote.
The House managers responded to Trump's lawyers on Monday in a five-page, a pretrial brief that pushed back on the contention that the trial was unconstitutional and Trump's speech did not incite the rioters at the Capitol on January 6. The brief, which was written in response to Trump's filing last week, argued that Trump's reliance on the First Amendment was "utterly baseless" and it was provable Trump lied about election fraud.
"President Trump's repeated claims about a 'rigged' and 'stolen' election were false, no matter how many contortions his lawyers undertake to avoid saying so," the House managers wrote.
"The evidence of President Trump's conduct is overwhelming. He has no valid excuse or defense for his actions. And his efforts to escape accountability are entirely unavailing," they added.
The House managers have one more filing due Tuesday at 10 a.m. ET to respond to Monday's brief from Trump's team.
During Trump's first impeachment trial, senators were required to sit at their desks during the lengthy arguments, though they didn't always do so. But this year, senators won't be required to remain at their desks due to the Covid-19 pandemic and social distancing.
A Senate official familiar with the planning said there will be seats reserved for senators in the public gallery above the chamber and the Senate's "marble room" that's just off the floor, where the trial will be shown on television. Senators will have to be on the Senate floor to vote.
On the eve of the trial, there appears to be little uncertainty about the outcome. Even Republican senators open to voting to convict Trump say they recognize the votes aren't there for a guilty verdict, which would require 17 Republican senators to join every Democrat to vote for conviction. Last month, 45 of the Senate's 50 Republicans voted in favor of a procedural motion to dismiss the trial on constitutional grounds.