budget committee. watch live wednesday on c-span, watch live and on-demand at c-span .org and aren't listen on the free c-span radio app. you are watching c-span2 your unfiltered view of government. c-span2 was created by america's cable television comedy and today were brought to you today by these television companies who provide c-span2 two viewers as a public service. >> the impeachment trial of former president donald trump continues today when legal arguments begin and charged with america's incitement of insurrection. watch live impeachment trial coverage beginning on 1:00 p.m. on c-span2. >> as you heard many of the colors express many constitutional issues being expressed by the callers and by the legal teams themselves ass

they go on to the activities today here to walk us through some of them. debbie rose, president of the constitution center. good morning to you too good morning. >> host: walk us to the big constitutional issues at play. >> guest: well, there are two. one is the senate have the jurisdiction under the constitution to try a former president and the second is president trump guilty of high crimes andes misdemeanors incitg insurrection. on the first question the people who question jurisdiction led by senator rand paul say you can't try a former president because the penalty for impeachment is removal from office and his qualification told a future office and if you can't do those then you are impeached. the arm and on the other side is that the senate has tried former in voted inore and 1876 to try former secretary of war who resigned before being impeached. and also there were two

penalties for conviction and one is removal and the other is qualification and it would not make sense for them to avoid dislocation from office just by resigning moments before his trial takes place. in the end, listeners should listen carefully to these called the jurisdictional arguments and you can make up your own mind but remember ultimately it is up to the senate to decide and this is an open question, it's never happened before in american history because no former president has ever been tried. don't imagine that the u.s. supreme court will decide this question for the senate. u.s. supreme court has said that the senate has almost complete discretion under its sole power to try impeachment and to structure the trial in any way it wishes so if the senate votes to go ahead and hold the trial after four hours of debate today there is an extremely small possibility, i would say, almost nonexistent that the u.s. supreme court would suddenly stop in and say you have to stop job because you made the wrong

decision.yo one finalna thing to say about this up in court, one of the previous callers just said that the fact that the chief justice is decided not to participate so that he doesn't approve of the trial. ani don't think we can draw that conclusion fromlu his decision t to participate. his decision says merely he doesn't think that the constitution requires a chief justice to preside over the trial of a former president. it doesn't tell us whether he thanks that the trial of a former president is unconstitutional or whether he thanks that the supreme courtin should intervene in any way in the second guessing of the rules of the trial. i think i better stop there. >> host: second question is incitement. as far as what has to be proven i know this isn't a legal case but there are legal aspects but what has to be proven ultimately to make that charge of incitement. >> you're absolutely right. it is not arele legal case and impeachment is a mix of political and legal and ultimately constitutional judgments.

if it were a legal case and of the president were being tried before incitement than the test comes from 819629 case called the brandenburg case and the question is was his speech directed to and likely to incite imminent violence in the house managers decided words like you have to fight like hell or you won't have a country like this anymore and pointing to the capital, go mart on the capital and can be week as examples that if you meet the legal test for incitement now this is an important point that the overwhelming authority and precedents suggest you don't have to have a technical crime to be guilty of a heim crime or misdemeanor. alan dershowitz has tried to argue that you need a technical violation of the v law but most people don't agree on that point so even if the senate concluded that president trump didn't meet the legal standard for incitement and could not be convicted in a criminal court they might still conclude thatnc it is a high crime or

misdemeanor to incite insurrection by supporters to march violently on the capital to overturn the election results. and i will be the crux of the thsubstantive debates. the question is is not only president trump speech on you have to fight like hell but his comments leading upo to the election and those of his lawyers and his children and other supporters saying the election was illegitimate and therefore it had to be violently stopped and did all that add up to an effort by the president of the united states to incite supporters violently to overturn the results of a violent election. in supporters of impeachment will say as several senators did that if this isn't impeachable than what is? it's an effort to overturn an election with false claims about fraud that lead to violence in the storming of the capital and that's not a high crimes and misdemeanors so it's hard to not

think of what could be. but we will probably focus mostly on the first amendment. the president has free-speech rights and is allowed to express his views that the election was overturned and allowed to tell the supporters to do whatever they can to fight for the right as they see it and therefore it would be a violation of his free-speech rights to call it a high crime and misdemeanor. >> talk about how many senators it takes to approve and impeachment talk aboutt that second vote, if that should happen in a second vote of keeping him from running from an other office and why that has to be a separate vote. >> it takes two thirds of the senators to vote to convict him of high crimes and misdemeanors and that number votes to convict then removal from office which is the first penalty is automatic and basically two thirds say he's guilty and automatically removed from office and since he's not out of office the automatic penalty can't happen.

but then you need a separate vote to disqualify him from holding future office and that only requires a majority, not two thirds so the senate but they have to convict him first. you get two thirds voting to convict and then only a majority saying that has to be just call abide in the future. >> our guest is the president ceo of the constitutional center and go to his website at constitution center .org to find out what the constitution says on a number of things but particularly as far as impeachment is going and jeffrey rosen talking to us about that. as always, thank you for your time. >> guest: thank you. >> the second impeachment trial for donald trump is set to resume at 1:00 p.m. eastern. majority leader schumer talked about today session earlier today here is a portion of his comments. >> but first i want to say a word on impeachment. the senate has a solemn responsibility to try and hold donald trump accountable for the most