The contours of Trump’s Senate trial are starting to take shape as the ceremonial elements got underway, with the Senate’s longest-serving Democrat expected to preside over the trial and Democrats still weighing whether to pursue witnesses during proceedings that could take up a chunk of February.
Chief Justice John Roberts will not be presiding like he did for Trump’s first impeachment trial, according to two sources familiar with the matter. Instead, Sen. Patrick Leahy, the president pro tempore of the Senate, is expected to preside, the sources said. The Constitution says the chief justice presides when the person facing trial is the current president of the United States, but senators preside in other cases, one source said.
As the fourth Senate impeachment trial of a president in US history gets underway, there are still two big questions looming over the Democrats’ impeachment case: Whether they will seek witnesses and how long the trial will take. The answers to both are still not known yet, according to multiple sources familiar with the matter.
Senate Majority Leader Chuck Schumer did not answer Monday whether he was open to having witnesses appear as part of Trump’s impeachment trial, saying that “hopefully” Democrats would be able to negotiate with Republican Leader Mitch McConnell on the structure of proceedings.
“We’ll see what happens. We don’t know what the requests are on either side yet, of the managers or the defense,” the New York Democrat said.
Trump is still working on filling out his legal team, and one lawyer who had been approached declined to join on Monday. Sen. Lindsey Graham, a South Carolina Republican, said he spoke to Trump on Sunday while the former President was golfing in Florida.
Asked about Trump’s mindset and preparations ahead of his second impeachment trial, Graham said, “Well, I think he’d like to get it over with.” Graham said he “wouldn’t think” Trump would come back from Florida for the proceedings, again emphasizing the desire for a quick trial.
The exact time frame of the trial itself, which will begin the week of February 8, is also unknown, but multiple impeachment managers have said they don’t think it will go as long as the 21 days of Trump’s trial in 2020. The expectation is still, however, that it will take up much of February and wrap up by month’s end, if not sooner.
While the delivery of the impeachment article kicked off the trial Monday evening, though the substance of the arguments are still two weeks away, while the Senate turns back to confirming President Joe Biden’s Cabinet and potentially taking up the President’s Covid-19 relief package.
As the managers lined up to walk to the Senate, Raskin turned around to face the other impeachment managers, patted his chest and said, “Proud of you guys.”
Leahy to preside over trial
The likelihood that Leahy will oversee the trial has raised questions about whether he will also be eligible to vote, but constitutional experts say that nothing would stop him from doing so.
“He’s a sitting senator, he still gets to vote. Nothing in the Constitution would preclude him from voting,” said Frank Bowman, a University of Missouri law professor who has written extensively about impeachment.
Leahy told reporters Monday that he’s “up to the responsibility” of presiding, and his role will be to make sure “the procedures are followed.”
“I’m not presenting the evidence, I’m making sure the procedures are followed,” Leahy said when asked about being a frequent critic of the former President. “I don’t think there’s any senator who over the 40-plus years I’ve been here would say I’m anything but impartial in ruling on procedure.”
The Vermont Democrat declined to say when the decision was made that he would preside over the Senate trial. Asked Monday if Roberts had turned down an invitation to preside, Leahy said: “You can ask the chief justice that.”
Roberts, however, declined to comment. “The chief justice has no comment,” Supreme Court spokeswoman Kathy Arberg said.
Senators to be sworn in Tuesday
The scheduling leading up to the trial’s arguments was resolved Friday after a week’s worth of uncertainty over when House Speaker Nancy Pelosi would send the article to the Senate, thanks to a deal reached between Senate leaders.
Under the agreement, Trump’s legal team and the House managers will have two weeks to exchange pre-trial briefs before arguments begin. Senators will be sworn in as jurors on Tuesday.
The deal gives something to both Schumer and McConnell, who are still at odds over a power-sharing agreement in the 50-50 Senate.
The schedule gives Trump’s legal team time to prepare for the trial. Trump is still working to assemble a full legal team, people familiar with the matter told CNN on Monday, even as he has begun to craft a defense strategy with Butch Bowers, the South Carolina lawyer who has agreed to represent him in the historic proceedings.
Bowers, a respected lawyer from Columbia, South Carolina, who once worked in the Justice Department under President George W. Bush, has been in conversation with Trump in recent days, according to two people familiar with the matter. Bowers was connected to Trump by Graham, who is also helping to add new lawyers to the team.
Charlie Condon, a former South Carolina attorney general, has been approached about joining the legal team, two people familiar with the matter told CNN. In a brief statement to CNN on Monday evening, Condon wrote: “I am not representing former President Trump. Thanks.”
Republicans make a constitutional argument
“I think it’s time to move on from this impeachment trial,” said Sen. Roger Marshall, the newly elected Republican from Kansas. “The impeachment trial is unconstitutional.”
“It makes no sense whatsoever that a president or any official could commit a heinous crime against our country and then defeat Congress’ impeachment powers by simply resigning, so as to avoid accountability and a vote to disqualify them from future office,” Schumer said Monday.
“I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense. If not, what is?” Romney said of Trump’s actions inciting the pro-Trump mob that attacked the Capitol.
This story and headline have been updated with additional developments Monday.
CNN’s Joan Biskupic, Jeff Zeleny, Ali Zaslav, Annie Grayer, Kristin Wilson, Ryan Nobles, Jessica Dean and Kaitlan Collins contributed to this report.