Former President Donald Trump’s Senate impeachment trial begins Feb. 9, and while an acquittal is near certain as 17 Republicans would have to join all Democrats in voting to convict, testimony will be presented in the upper chamber seeking to prove Trump’s role in “incitement to insurrection” in the Jan. 6 Capitol breach.
Last month, the House voted 232–197, including 10 Republicans, to impeach Trump for allegedly inciting an insurrection. Trump has said that he didn’t issue any calls for violence during the Capitol incident. In his speech on Jan. 6, Trump called on supporters to “peacefully and patriotically” make their voices heard during the joint session of Congress, when lawmakers convened to consider electoral votes cast for the presidential candidates.
Both Republican and Democratic lawmakers have publicly stated that they want a speedy trial, as the Senate can’t move forward with its legislative priorities until the trial is complete. Many Republicans have decried the trial as a partisan exercise that will lead nowhere. Last month, during a procedural vote, 45 Republican senators voted against holding the trial, suggesting that the former president will not be convicted, as the Senate requires 67 votes for a conviction.
Trump’s lawyers have said they will argue that the impeachment trial is unconstitutional because Trump no longer holds office and will say that his speech was protected under the First Amendment. Trump’s impeachment trial will be the first of a U.S. president no longer in office.
Attorney David Schoen and Bruce Castor, a former district attorney in Pennsylvania, are heading up Trump’s legal defense team.
Harvard Law School professor emeritus Alan Dershowitz said on Feb. 6 that an effective legal defense is based on challenging the constitutionality of the allegations against Trump.
“The best arguments he can make, and his lawyers will make, are the constitutional ones, namely the Senate has no jurisdiction over a former president, and the speech was covered by the First Amendment,” Dershowitz told Newsmax.
Trump will not testify at the trial. Rep. Jamie Raskin (D-Md.), the lead House impeachment manager, asked Trump in a Feb. 4 letter to testify in person, with Trump’s legal team rejecting Raskin’s request, describing it as a “public relations stunt.”
“There is no such thing as negative inference in this unconstitutional proceeding,” Schoen wrote to Raskin. “Your letter only confirms what is known to everyone: you cannot prove your allegations against the 45th president of the United States, who is now a private citizen.”
According to a tally by The Epoch Times, 35 Republican senators have suggested or committed to voting to acquit Trump in trial. Unless Democrats can sway 17 of the 50 Republicans in the upper chamber, Trump will be acquitted.
“The trial is already over. They don’t have the votes to convict,” Sen. Rand Paul (R-Ky.) told reporters on Feb. 4. “This is just, I think, continuing to embitter the public. It’s divisive, and it does nothing to promote unity. I think it’s a big mistake on the Democrats’ part.”
If Trump were to be convicted, the Senate could hold a subsequent vote to bar him from ever holding office again. Unlike an impeachment conviction, which requires two-thirds of the Senate to be adopted, only a simple majority would be required to ban Trump from future office.
Jack Phillips and Zachary Stieber contributed to this report.