Breaking down day 3 of impeachment arguments

ABC News' and Cardozo Law School professor Kate Shaw discusses whether GOP senators have a basis to acquit, and whether former President Donald Trump could face criminal jeopardy after the trial.
4:03 | 02/12/21

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Transcript for Breaking down day 3 of impeachment arguments
Ever more now we bring an ABC news contributor in Cardozo law professor Kate Sean thanks so much for joining us Kate and we're still hearing arguments of the impeachment was unconstitutional because trump is no longer in office that without a -- the investigation trump was denied due process in the Trump's speech is protected by the First Amendment. Are there are merits to these claims. Well we'll have to see how the former president's team presents those arguments starting tomorrow. But I continue to find them pretty on persuasive so as to jurisdiction right whether the senate has the power to hold a trial for an ex official I don't know. Do it just seems to me it can't be the case that presidential misconduct. Late indefinite term is not subject to the sanction of impeachment write the constitution. Contains this remedy for official misconduct. Just this sort and it just can't be right. That if you do it made enough in a term you escape this kind of accountability. Due process you know I think the president's team did have time to prepare case I'm sure they could've had more but you know the managers I am sure would be facing accusations. That date slow walked these charges they should have brought them sooner if we were you know looking at a trial in March or April. And finally on the First Amendment and I thought that congressman raskin was really effective today in making the case. That the First Amendment doesn't really have any applicability in these proceedings at all. So even if you were a private citizen you certainly don't have an absolute right to say whatever you want you don't have a right to incite violence. But even putting that to decide. No public officials have very different first amendment rights then the rest of us and so for better or worse public school teachers or police officers. Can be subject to pretty serious sanctioned based on the things they say. And the First Amendment doesn't have much to say about as when they do. And so you know the idea so it's true but in a senior federal government officials as well when the president comes senior cyber security official. I made a public statement that the election was free and fair and there wasn't widespread fraud. President trump fired him. And nobody thought that was a First Amendment problems so do public officials sometimes face consequences for their speech. And in my view that's what impeachment is a consequence of the fact that it's speech. You know rhetoric at the court the case to me is not particularly relevant but we'll have to see how the defense you know gets kind of lead out starting tomorrow. It just a little while ago we heard from senator crane Larry than federal prosecutors are Democrats are free to pursue criminal charges in a court of law of the senate conviction fails. Is there any precedent for former president's facing criminal charges in court. And how do you Kennedy arguments that you've heard so far this week would play out if this were taking place in an actual courtroom do they have a case. He it is interesting you've heard a number of Republican senators say things along those lines. So you don't former presidents no there isn't any square kind of president on point there have been charges. And trials of former vice presidents so Aaron Burr was tried actually not for killing Alexander Hamilton but for treason. Vice president Spiro Agnew Nixon's first vice president a plea guilty to tax evasion charges as he was leaving the vice presidency. You know its fee it's likely he or at least it's possible that. President Nixon himself might have faced criminal charges a lot of White House staff members and campaign officials had already pled guilty or been convicted for their involvement in Watergate. But he was pardoned by president Ford which took that possibility off the table so you know it's certainly possible to criminally charge and try and ex president. And I do think that the evidence that we've been hearing this week would make it powerful case for you know either incitement of insurrection which is a statutory crime that. Or seditious conspiracy. You know I so it's hard very hard to know if he people's get a conviction intend state of mind these are always difficult things to prove. But I do think there'll be a judgment call to be made by the bite and Justice Department and whether it would set a dangerous precedent to charge an ex president there is certainly an argument that would. Or whether would set a more dangerous precedent for there to appear to be no real accountability. For these events so that's I think going to be probably subject of real debate inside the fight injustice department spray really interesting arguments being made on both sides K Shaw. Thanks so much.

This transcript has been automatically generated and may not be 100% accurate.

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