Trump Impeachment: What Exactly Is Donald Trump's Defense?

The second impeachment trial of former President Donald Trump opens Tuesday with a basic question: Is a former president subject to impeachment under the Constitution?

Trump’s legal team plans to argue that the Senate “lacks jurisdiction” to try him and that he is not guilty of “incitement of insurrection" since used the word “peacefully” at the Jan. 6 rally that later resulted in a mob invading the Capitol building. Trump's lawyers will also argue it is not constitutional to put Trump on trial because he is no longer in office and that his comments were protected by free speech.

Trump is charged with inciting a violent attack on the Capitol with his speech that repeated false claims he was the winner of the Nov. 3 presidential election. He had told his supporters to "fight like hell."

Sen. Rand Paul, R-Ky., forced a Jan. 26 vote to block the trial because of the constitutional question. All but five of the 50 Republicans in the Senate voted with Paul.

The result of that vote makes it unlikely House impeachment managers, who are prosecuting the former president, will be able to get the two-thirds majority (67 votes) necessary to convict Trump.

Trump is one of three presidents to be impeached, along with Andrew Johnson in 1868 and Bill Clinton in 1998, and is the first president to be impeached twice.

Trump was impeached in 2019 on two articles: obstruction of Congress and abuse of power. Trump was acquitted on both articles, with the vote almost entirely along party lines. Utah Sen. Mitt Romney was the only Republican who joined Democrats and independents in voting to convict.

House impeachment managers are expected to present their case as if it were the prosecution of a violent crime.

"When you have such a serious charge, sweeping it under the rug will not bring unity – it will keep the sore open, the wounds open," said Senate Majority Leader Chuck Schumer, D-N.Y. "You need truth and accountability. I believe the managers will present a very strong case."

Republicans have argued the impeachment is political theater. They also say the trial will serve to keep the nation divided along political lines.

After Tuesday's opening statements, the sides will have up to four days to make their cases.