What to expect from Senate impeachment trial of Trump

ABC consultant Kate Shaw discusses the constitutionality of impeaching a former president, Sen. Patrick Leahy’s role at the trial, and former President Donald Trump’s potential defenses.
4:27 | 01/26/21

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Transcript for What to expect from Senate impeachment trial of Trump
And for more on the senate trial had we not bring an ABC news consultant Kate channel professor Cardozo law school. Thanks so much for joining us Kate now some Republicans are questioning whether it's constitutional to impeach and convict a former president who's now a private citizen. Are Democrats on firm legal footing here. Well Lindsay it's definitely uncharted territory. But I'm so it's a couple things one. It's certainly true that we've never impeached a former president but impeachment has been very rare in our 230 year history anyway prior to president from there it only been two presidential impeachment. But there have been impeachment and trials of other former federal officials just not former president so including cabinet secretary in the nineteenth century. So what the precedent is there at the senate has looked at this question of whether it has the power to hold trials for former officials. And has concluded that yes it dies so so I eat you know there is an argument that because it is novel it is unconstitutional but. It seems to me that the text of the constitution is inconclusive. Our history supports former officials being subject to impeachment. And there just practical arguments if it were impossible to true to impeachment trial of former federal official. You'd essentially just insulate misconduct even egregious misconduct but happened to occur late enough in the president's term so. For all the three all these reasons I do think that the Democrats are very solid constitutional footing here. And how the change will it be for senator Patrick Leahy a Democrat who's been critical child to preside over this trial is so Chief Justice chief Justice Roberts who oversaw last trial. Well so the constitution is clear that when a sitting president is tried and the Chief Justice shall preside so of course last year when president trump as the peach for the first time. Chief Justice Roberts presided. But former presidents aren't addressed in the constitution in terms of impeachment. So well you know during an open question about who would preside. And the senate seems to have made the determination that he even ask chief Justice Roberts under these circumstances. We'll put him in a typical position and since there's no requirement that he presided. Not an ordinary member of the senate which is exactly how things would occur. If it were another federal officials being impeached it would be the vice president or another senior member of the senate who would preside that's how other impeachment trials. I have typically occurred and it one thing I'll say is it. But that the constitution gives the Chief Justice the power to preside when the president is being impeached. Presumably because the vice president ordinarily presides as the president of the senate. But if it's a president being tried the vice president if it's that presidents vice president would presumably be in an awkward position. And we actually don't have that scenario here so there's no reason it would need to be chief Justice Roberts. And play along with me for a moment here Kate let's say hypothetically you're an attorney for former president trump. What kind of defense would you mount and also what kind of new evidence could we here at this trial. Well I think that the arguments are breaking woman few lines of parlance the you know one process arguments break that conversation we were just happened that day his team well I am sure argued that the senate lacks the power to hold this trial at all but the whole thing has unconstitutional. I presume able also argue that some of the speech that is at the heart of its impeachment charge write the speech at the January 6. Rally that preceded the storming of the capital was protected speech potentially protected by the First Amendment. I'm baby argue that that these proceedings are happening too quickly to the president doesn't have time to prepare a defense. You can imagine an argument that because these senators were witnesses to the events at issue in the impeachment that it will be impossible for him to get an impartial trial. And in what else is at a buyer representing president trump I might try to open up conversations about the possibility of a censure. Right something that is not a conviction but that would allow with the senate to express condemnation. Of the conduct. And simply to end the trial that's something that has been done before president Andrew Jackson was censured. There were discussions when Bill Clinton was facing impeachment about whether a congressional censure. Might be a possible substitute for the impeachment trial in of those discussions. I'm work fruitful but it's been considered before so I might approach the senator that house impeachment managers and Senate Leadership to say. What about a censure particularly if there are some expression of remorse or apology so far of course we have heard anything to that fact but no and that's for my legal. Some Republicans though have suggested that censure would be the more appropriate punishment but. We will stand by for news case Shaw thank you so much as always.

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

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