He’s no longer president and can’t access his favourite social media platform, but Donald Trump will still be making headlines for a few more days yet.
His historic and unprecedented second impeachment trial on begins on Tuesday. He faces a sole charge of incitement to insurrection, accused of encouraging a mob to violently storm the Capitol in a doomed and pathetic attempt to overturn the 2020 election result.
Unsurprisingly, it failed and Joe Biden is now the president of the United State. Here’s what you need to know about the trial…
What’s Trump charged with?
Trump faces a sole charge of incitement to insurrection over the January 6 Capitol siege, an attack that stunned the nation and the world after he encouraged a rally crowd to “fight like hell” for his presidency.
Rioters stormed the building trying to stop the certification of president-elect Joe Biden’s victory.
Five people lost their lives.
What will Trump’s defence say?
Trump’s defenders are preparing to challenge both the constitutionality of the trial and any suggestion that he was to blame for the insurrection.
They suggest Trump was simply exercising his First Amendment rights when he encouraged his supporters to protest at the Capitol, and they argue the Senate is not entitled to try Trump now that he has left office.
Let’s break those down.
The Constitutional argument
This hinges on the fact Trump is no longer president and therefore should not even be facing an impeachment trial.
In trial filings on Monday, lawyers for the former president lobbed a wide-ranging attack against the House case, dismissing the trial as “political theatre” on the same Senate floor that was invaded by the mob.
“While never willing to allow a ‘good crisis’ to go to waste, the Democratic leadership is incapable of understanding that not everything can always be blamed on their political adversaries,” the Trump lawyers say.
But this is unlikely to work as a defence. Even though he can no longer be removed from office, which would normally be the ultimate aim of an impeachment prosecution, Trump can be barred from holding public office in the future.
This is what the prosecution and Democrats want to see happen.
There’s a further wrinkle in the defence – one of the legal scholars quoted by Trump’s lawyers has said they have misrepresented his work “quite badly”.
Michigan State University law professor Brian Kalt told Reuters in an email that his research was “definitely not” accurately described in a 78-page document filed by Trump’s lawyers on Monday.
Kalt has in fact joined other legal scholars in arguing the Senate trial is constitutional.
The blame for the insurrection
Trump’s defence have a steep hill to climb here – First Amendment rights or not, there is plenty of video footage of Trump making a speech telling his supporters at a rally in Washington just before the riot to march on the Capitol and “fight like hell”.
Trump’s lawyers said he was speaking only in a “figurative sense” and his use of the word “fight,” the defence said, “could not be construed to encourage acts of violence”.
“Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever,” they wrote.
Unfortunately for the defence, there is also hours and hours of footage of those same supporters Trump told to “fight like hell” rioting and breaking into the Capitol.
In fact no witnesses are expected to be called during the trial, in part because the senators sworn as jurors will be presented with graphic videos of the scenes they witnessed that day, when they were forced to flee for safety.
Even more damning, individual Trump supporters who were arrested for their part in the riot have said they will testify that Trump told them to storm the Capitol as part of their own defences.