As the Senate trial of Donald Trump begins on Tuesday, it will start with a debate over the constitutionality of prosecuting a former president, as reported by the Associated Press. According to the report, this argument could prove to be influential on Republicans who are likely to vote for Trump's acquittal but have concerns about appearing to condone his behavior that led to his impeachment. Trump is facing a charge of "incitement of insurrection" for his role in the attack at the U.S. Capitol on January 6 in an effort to overturn the results of the 2020 presidential election.
Trump's defense team will launch their efforts by arguing that since he is no longer the head of state, he is not constitutionally eligible to be impeached. The argument has been echoed by Republican lawmakers including Kentucky Sen. Rand Paul, who forced a vote on the issue in January. While the measure did not pass, it did receive the support of 45 Republican senators. The result proves the difficulty the prosecution team will face in their efforts to convict Trump, which requires support from two-thirds of the chamber, or 67 votes. Only five Republican senators voted to declare that the trial was constitutional -- Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania.
The lawyers for Trump have previously described the push to impeach him as "political theater" and will also argue that he deserves no blame for the events at the Capitol. They will claim that Trump's speech on January 6 was simply him expressing his rights under the First Amendment and there was no issue with him encouraging the protests.
The filings by House Democrats show that they will argue that the former president's actions on January 6 are indefensible and qualify as a betrayal of every American.
"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," it read.
No witnesses are expected to testify during the trial, with senators instead presented with graphic videos from the day along with clips of Trump refusing to concede during the weeks following the election. The defense plans to counter the argument with clips of Democrat politicians making their own fervent speeches. Trump has declined to testify and will remain at his residence in Florida throughout the proceedings.
If the vote on the trial's constitutionality passes, Wednesday will see the opening arguments. Each side will be granted 16 hours for their presentations. Following the opening arguments, the trial will stretch into the weekend and possibly next week as deliberations and closing arguments take place.