Trump Impeachment Trial Opens With Debate Over Senate's Power

 WASHINGTON—House Democratic impeachment managers alleging that Donald Trump incited an insurrection at the Capitol were set to clash with defense lawyers Tuesday over whether a president can be tried after leaving office.

The first session in the second impeachment trial of Mr. Trump will feature presentations from both sides over the Senate’s authority to hear the case, followed by a vote on the matter, which requires a simple majority and is expected to pass in the Democratic-controlled chamber.

The measure is expected to draw some Republican votes, as five GOP senators, including Sen. Mitt Romney of Utah and Sen. Susan Collins of Maine, have previously sided with Democrats on a question related to the constitutionality of trying the former president.

he House voted to impeach Mr. Trump last month, alleging he encouraged the mob that stormed the Capitol on Jan. 6 as part of a last-gasp effort to overturn President Biden’s election victory. The article of impeachment points to a speech Mr. Trump gave at a rally preceding the riot where he urged supporters to “fight” and march to the Capitol.

There are points in common between Mr. Trump’s first impeachment, in 2019, and his second last month: In both instances, the Democratic-majority House accused Mr. Trump of abusing his position in an attempt to prevent Joe Biden from attaining the presidency.

The earlier impeachment alleged, among other offenses, that Mr. Trump withheld military aid from Ukraine in an unsuccessful effort to get its leaders to announce they were investigating Mr. Biden and his son, Hunter Biden. Mr. Trump was acquitted by the Senate, after only one Republican, Sen. Romney, joined Democrats in voting guilty.

Sixty-seven votes are required to convict Mr. Trump, meaning at least 17 Republicans would need to join all 50 Democrats. Only a handful of Republicans have indicated they could vote guilty.

Aides said impeachment managers plan to introduce new evidence in the trial as they try to tie Mr. Trump’s actions to the day’s violence.

“We plan to fully utilize all the evidence available in all the forms, including evidence that nobody has seen before,” one aide told reporters. The presentation “will be more like a violent crime, criminal prosecution, because that is what it is,” the aide said.

On Tuesday, the Democratic impeachment managers, led by Rep. Jamie Raskin of Maryland, are set to argue that a president isn’t exempt from a trial just because impeachable actions occurred in the final weeks of the administration.

“Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term,” impeachment managers argued in a brief last week. “Allowing presidents to subvert elections without consequence would encourage the most dangerous of abuses.”

The Senate has tried former officials in the past, the most prominent being William Belknap, who resigned as secretary of war shortly before the House impeached him on corruption charges in 1876.

But Mr. Trump’s lawyers—Bruce L. Castor Jr., David Schoen and Michael van der Veen—say the trial is improper.

“The purpose of impeachment is to remove someone from office, and unequivocally, this impeachment trial is not about removing someone from office, as Mr. Trump left office on January 20, 2021,” they wrote. “He is now both factually and legally, a private citizen.” The Belknap case, they argue, is of uncertain relevance because he was acquitted, possibly because some senators doubted they had jurisdiction over him.

The Constitution is silent on whether impeached officials can avoid trial by leaving office before Senate proceedings begin. Legal experts have noted that removing a president from office isn’t the only consequence of conviction in an impeachment trial; after a guilty verdict, the Senate could also vote to disqualify a person from holding future office on a simple majority vote. Democrats have said they plan to do so if Mr. Trump is convicted.

On Monday, Mr. Trump’s lawyers said he didn’t incite the crowd and that the rioters who breached the Capitol “did so of their own accord and for their own reasons.”

The lawyers said that in Mr. Trump’s speech that day he used the word “fight” a “little more than a handful of times and each time in the figurative sense,” making no explicit mention of rioting. The lawyers said the president was exercising his First Amendment rights.

The impeachment managers, acting as prosecutors during the trial, responded in their own five-page brief, saying Mr. Trump “has no valid excuse or defense” for his actions. “His efforts to escape accountability are entirely unavailing.”

On Tuesday, up to four hours of debate are allotted for the question of whether it is within the bounds of the Constitution to hold a trial for a president who is out of office but whose alleged crimes occurred during his tenure. A Congressional Research Service report from January concluded that while the matter is open to debate, the weight of scholarly authority agrees that former officials can be impeached and tried.

“I am so open to hearing what people have to say about it,” Sen. Bill Cassidy (R., La.) said Monday night. Mr. Cassidy had sided last month with 44 other Republicans by backing an attempt by Sen. Rand Paul (R., Ky.) to challenge the constitutionality of trying a former president.

While that vote was seen as a gauge of Republican support for convicting Mr. Trump, it wasn’t a direct vote on constitutionality, as senators were voting on whether to debate or withdraw the question. Several Republicans made this distinction at the time.

“I voted for allowing debate on this issue and against tabling this important discussion,” said Sen. Rob Portman (R., Ohio), shortly after the vote. “As the trial moves forward, I will listen to the evidence presented by both sides and then make a judgment based on the Constitution and what I believe is in the best interests of the country.”

If senators vote to move forward with the trial, Mr. Trump’s defense and the House managers will both get up to 16 hours per side for presentations over several days. Both sides will also have the option to call for a debate and vote on calling witnesses. Democrats last week asked Mr. Trump to testify, which the former president’s lawyers shot down.

Mr. Castor said he didn’t see a need for witnesses but that if Democrats moved to call them, the defense would likely do so, too.

Write to Siobhan Hughes at siobhan.hughes@wsj.com, Lindsay Wise at lindsay.wise@wsj.com and Jess Bravin at jess.bravin@wsj.com

Siobhan Hughes, Lindsay Wise, Jess Bravin

Trump Impeachment Trial Opens With Debate Over Senate's Power