As the U.S. Senate opens its second impeachment test of former President Donald Trump, senators will engage in political and legal issues, top constitutional lawmakers say to Al Jazeera.
“Senate impeachment and trial is a unique constitutional approach that is completely under the control of both the House and the Senate,” said Jan Baran, U.S. Supreme Court official at Holtzman Vogel Josefiak and Torchinsky in Washington.
“Whether they do the right thing by impeachment or by condemnation is ultimately within the judgment of the American people and the electorate,” Baron told Al Jazeera.
The U.S. Constitution gives Congress the same power to impose and remove a president and ban him from holding office in the future for committing “betrayal, high-profile crimes and misconduct ”. The courts have almost no say in how Congress goes on.
In an impeachment, the House of Representatives acts as a grand jury and appoints managers to prosecute him. The Senate conducts the lawsuit with individual elders acting as jurors and providing a forum to present evidence and arguments.
A two-thirds majority of the Senate must condemn, a very high bar that has never been met for a president in U.S. history.
What is Trump accused of?
The House of Representatives has been charged with former President Trump on a “terrorist incitement” charge following an attack on the U.S. Capitol by his political supporters on Jan. 6.
Trump had hosted a rally of supporters near the White House on the same day Congress met to confirm the election victory of Joe Biden. In a fiery speech, Trump had urged them to march on the Capitol.
The House article on the cost of impeachment, Trump gave a speech in which he “repeated false claims” that he had won the 2020 general election and urged the people to “fight like hell.”
The crowd was “breaking and destroying the Capitol”, killing a police officer and injuring many more, and “threatening” members of Congress.
The article maintains that Trump’s previous behavior included “attempts to validate the results of the 2020 primary election and prevent it.
Thus, the former president “threatened the integrity of the democratic system, hindered the peaceful movement of power and hindered the coequal branch of government”, the House said.
Tear gas was used to disperse crowds of protesters as they clashed with Capitol police in the wake of the Trump rally to protest the testimony of the 2020 primary election results by Congress on January 6 [File: Shannon Stapleton/Reuters]What has been the response from Trump defense lawyers?
Trump’s lawyers claim he did not provoke a riot at the U.S. Capitol last month, arguing that his impeachment with the House should be overturned by the Senate .
In a pre-trial summary filed on Feb. 8, Trump’s legal team, Bruce Castor and David Schoen, offered a strong response to Democrats’ House allegations that the former president is guilty of “incitement to terrorism. ”.
Trump’s lawyers argue that, in addition to his views being defended by the U.S. First Amendment, which guarantees freedom of speech, “not a single word explicitly incited violence or injustice or interestingly ”.
In Monday’s filing, the litany lawyers offered evidence to support the arguments they filed last week in response to the Democrats ’House impeachment article, which Trump’s accusation of “incitement”.
Is it illegal to impeach a former president?
Although never done before, the consensus among legal experts is that the House and Senate have the authority to impeach a former U.S. official, including a former president.
More than 170 constitutional law scholars signed an open letter last month concluding the Constitution approving impeachment, and Trump’s condemnation and disqualification from holding office in the future.
“The impeachment is clearly constitutional,” said Douglas Laycock, a professor of law at the University of Virginia who signed the letter.
“Leaders do not have a free opening to… try to overthrow the newly elected government at the end of their term, or commit high crime or any other misconduct simply because there is no time to complete a further trial in the Senate, “Laycock Al Jazeera said.
Supporters of former President Donald Trump made their way into the U.S. Capitol, killing one police officer and injuring dozens more, at a protest against the 2020 general election test at the Trump spoke [File: Stephanie Keith/Reuters]Did Trump’s speech incite the public to violence?
House managers will argue with the Senate that Trump appeared in front of a tight crowd, “sweeping them into the wilderness” and “targeting them directly at the Capitol”.
Trump’s lawyers can be expected to argue that the former president did not expect the people in the crowd to do anything but display peacefully outside the building with signs and slogans.
“The motivational test in the criminal courts is a pardon of speech that walks up a line of motivation because we remember that these people are kooks and there is always time to crack them, “said Michael Dorf, professor of law at Cornell Law School.
“And we want to be very careful about cracking down on them just because they build hate ideas like anarchy, communism or white supremacy,” Dorf told Al Jazeera.
Was Trump’s speech protected by the First Amendment?
The U.S. First Amendment prohibits Congress from making any law restricting free speech, the media, assembly, and religion.
House managers have argued that the principles of the First Amendment do not apply to the impeachment process and do not protect Trump from consequences for inciting an attack on the Capitol.
“There is a much broader question about the extent to which exhibitions, exhibition organization and speeches to exhibitors are protected by First Amendment rights against liability for physical harm and harm to individuals. half after the show, “said Baron.
“These are difficult issues and in recent history, certainly in the last 100 years, our judges have been very careful not to turn words and speeches into crimes,” he said. .