The House impeachment managers spent much of the opening session trying to undercut a key argument of former President Donald J. Trump’s lawyers: That the trial itself is unconstitutional.
Democrats asserted early that a president can be tried for offenses committed in office, even if they are no longer serving. That power, they said, is necessary to hold presidents accountable for wrongdoing in their final weeks and to avoid avoiding responsibility with a resignation.
Most legal scholars, including some leading conservatives, agree that a former president can be tried by the Senate even after leaving office — a point Democrats seized upon during their remarks. Representative Joe Neguse of Colorado noted that Brian Kalt, a legal scholar cited repeatedly by Mr. Trump’s lawyers, publicly disputed their portrayal of his law journal article on the topic of trying former officials.
“They misrepresent what I wrote quite badly,” tweeted Mr. Kalt, a law professor at Michigan State University. “My article presented all of the evidence I found on both sides, so there was lots for them to use fairly. They didn’t have to be disingenuous and misleading like this.”
Mr. Trump’s lawyers cited Mr. Kalt’s article 15 times in their impeachment defense brief. His work is an exhaustive analysis of impeachment after leaving office, which ultimately concludes that there is sound historical, legal and constitutional basis for pursing such an action. Last month, Mr. Kalt was one of more than 170 constitutional scholars who signed a letter arguing that the former president can be convicted in an impeachment trial, even though he is no longer in office.
“Professor Kalts’s position — which they had to have known because it is in the article that they cite in the brief — is that removal is ‘not the sole end of impeachment,’’’ Mr. Neguse said. “Actually, in that same article he describes the view advocated by President Trump’s lawyers as having deep flaws.”
“This key constitutional scholar relied on by President Trump set it just right,” Mr. Neguse told the Senate.
Nearly all Senate Republicans voted last month to dismiss the proceedings, arguing that the constitution forbids a former president to be put on trial. The decision to focus on the process allows Republicans and the president’s lawyers to avoid the politically thornier issue of Mr. Trump’s role in inciting the Jan. 6 attack on the Capitol.
