The second impeachment trial of Donald Trump began Tuesday with a detailed and emotional argument from the House impeachment managers for why the Senate has the constitutional authority to try the former president. Their argument featured a video of the sacking of the U.S. Capitol as directed by Trump, including footage of a rioter being shot. They described brutal violence against police officers. Rep. Jamie Raskin (D-Md.) recounted how his daughter and son-in-law, who had come to watch the counting of the electoral votes, feared for their lives amid the rampage.
Trump’s team responded with incoherence, threats and excuses ― a harbinger of what’s to come as the Senate continues its trial of the 45th president.
At the end of the day’s proceedings, the Senate voted, 56-44, that it was constitutional to hold the trial. Of the six Republicans who voted to continue, only one, Sen. Bill Cassidy of Louisiana, switched sides after previously opposing the trial, yet the vote confirms that most GOP senators are eager to let Trump off the hook for encouraging the riot.
But the House’s argument was so compelling and emotional, bringing some senators to tears, that it caused Trump’s lawyers to scramble their strategy, as attorney Bruce Castor admitted at the end of his rambling opening defense statement.
“We changed what we were going to do because we thought that the House managers’ presentation was well done,” Castor said.
After Castor’s strange and sometimes incoherent 50-minute opening speech, Trump’s defense turned to lawyer David Schoen to make a clearer, and more dangerous, argument to let Trump escape consequences. Schoen launched into an angry, culture war defense of Trump by attacking the impeachment in the exact same language that Trump used to deny the results of the 2020 election and incite the Jan. 6 insurrection for which he’s been impeached.
Trump’s impeachment, approved by 221 Democrats and 10 Republicans in the House on Dec. 18, Schoen said, was part of an agenda “by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million-plus American voters.” (These Trump voters could, of course, vote in a future election even without the former president on the ballot.)
This directly echoes Trump’s election lies that led directly to the sacking of the Capitol.
“Millions and millions of people voted for us tonight. And a very sad group of people is trying to disenfranchise that group of people, and we won’t stand for it,” Trump said on Nov. 4 in one of his first post-election lies about the results of the Nov. 3 election.
In his culture war screed featuring references to “cancel culture,” “deplorables” and the physical display of Chairman Mao’s “Little Red Book,” Schoen declared that Trump’s second impeachment trial was a purposeful, partisan ploy by the Democratic Party, now in control of the White House and both chambers of Congress, to tear the country apart and assault those who don’t support its agenda.
“[T]hey know the so-called trial will tear the country in half, leaving tens of millions of Americans feeling left out of the nation’s agenda, as dictated by one political party and now holds a power in the White House and our national legislature,” Schoen said.
He then added that this coming division had but one precedent: the Civil War. “This trial will tear this country apart, perhaps like we’ve only seen once before in our history.”
An Emotional And Constitutional Case
The first day of the impeachment trial was meant to debate the constitutionality of the Senate holding an impeachment trial of a former president. The House managers focused their case around an argument against what they called a “January exception” to the Constitution.
The “January exception,” explained Raskin, the lead manager, is what Trump’s lawyers would create if their argument that a former president cannot face a Senate trial for actions committed while in office is accepted.
“It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door ― including using violent means to lock that door ― to hold on to office by any means necessary,” Raskin said.
Such an exception would allow presidents, as Trump did, to try their best to change the results of an election they lost, including directing their supporters to march on the Capitol as members were inside counting the electoral votes for their opponent or to commit any other political crime.
“What will that mean for America?” Raskin asked. “What will the January exception mean to future generations if we grant it? I’ll show you.”
Raskin then showed a 13-minute video showing the timeline as Trump called on his supporters to march on the Capitol and the horrific violence those pro-Trump supporters committed once they stormed the building.
“The president was impeached for doing that,” Raskin said when the video ended.
What followed was a deliberate argument based on the original context and textual meaning of the Constitution’s impeachment clause in favor of the position that former officials, including the president, may be tried for impeachment for acts committed in office. This originalist argument was aided by citations to conservative lawyers including former federal appeals court judge Michael W. McConnell, Federalist Society co-founder Steven Calabresi and Chuck Cooper, who in recent days have affirmed that ex-presidents may be impeached and tried for actions taken while in office.
Raskin began with the Constitutional Convention, noting that when the Framers debating impeachment, they did so with knowledge of impeachments of ex-officials and did not dispute such impeachments at any point.
When Virginia’s George Mason raised the impeachment in England of former Governor General of Bengal Warren Hastings as an example, Raskin noted, “not a single Framer” objected.
Alexander Hamilton, Raskin noted, argued in Federalist No. 69 that the president “would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.” The governor of Delaware could be impeached only after leaving office, meaning that Congress’s power to impeach the president while in office was an expansion of the impeachment power in that state.
Beyond the era of the Framers of the Constitution, there are the precedents of impeachment of ex-officials throughout U.S. history.
Rep. Joe Neguse (D-Colo.), another House impeachment managers, explained the impeachments of former Sen. William Blount in 1798 and former Secretary of War William Belknap in 1876.
In Blount’s case, the Senate voted to dismiss the impeachment based on the understanding that members of Congress could not be impeached. But Blount notably stated that he could not make the argument that he could not be impeached and tried because he was no longer an official.
As for Belknap’s case, Neguse called it “the most important precedent this body has to consider.”
“When his case reached the Senate, this body, Belknap made the exact same argument that President Trump is making today ― that you all lack jurisdiction to try him,” Neguse said. And the Senate voted 37-29 to hold the impeachment trial of Belknap.
In addition, Neguse argued that the Constitution nowhere prohibits the impeachment and trial of ex-officials. Instead, in Article I, which covers Congress, the impeached individual is described as a “person” and a “party,” not a “civil officer,” as in Article II.
“We know the founders gave a lot of thought to the words that they chose,” Neguse said. “They could have written ‘civil officers’ here, but instead they used broader language.”
And to the question of whether the punishments for impeachment of removal from office and disqualification are linked or separate potential punishments, Neguse argued that there is no language requiring that one flows from the other.
“The Constitution does not say ‘and then’ disqualification,” Neguse said. “It doesn’t say ‘followed by’ disqualification.”
Rep. David Cicilline (D-R.I.) then argued that Trump must be impeached, convicted and disqualified from holding future office as his crime was exactly what the impeachment power was meant for.
“Impeachment is not merely about removing someone from office,” Cicilline said. “Fundamentally, impeachment exists to protect our constitutional system.”
But it was Raskin who closed the prosecution’s arguments with an emotional recounting of his experience on Jan. 6, the day of the insurrection. The day before, he had buried his middle son, Tommy, who died on New Year’s Eve. He invited his daughter and his son-in-law to come watch as he worked as a manager during the counting of the electoral votes in the House.
As the insurrectionists began to break through the Capitol’s defenses, his daughter and son-in-law hid in a congressional office. Separated from them on the House floor, Raskin hunkered down as he listened to “the sound of pounding on the door like a battering ram.”
The members fled, but his daughter and son-in-law were stuck in the office where they made what they thought could be their final phone calls. “They thought they were going to die,” Raskin said. His daughter later told him she never wanted to come back to the Capitol.
“People died that day. Officers ended up with head damage and brain damage. People’s eyes were gouged. An officer had a heart attack. An officer lost three fingers that day. Two officers have taken their own lives. Senators, this cannot be our future,” Raskin said. “We cannot have presidents inciting and mobilizing mob violence against our government and our institutions because they refuse to accept the will of the people under the Constitution of the United States.”
The Incoherence And The Belligerent
Raskin’s emotional story and forceful conclusion clearly rattled Trump’s lawyers, as Castor admitted during his opening speech. But for the first 50 minutes of Trump’s defense, Castor seemed to be making a mockery of the proceedings with an incoherent speech.
Castor ping-ponged from praising the Senate and its “gallant” men, like the long-dead Sen. Everett Dirksen (R-Ill.), whose speeches Castor listened to on vinyl records. He wondered if people knew what records were anymore. He denounced the violence of Jan. 6 but said that Trump was allowed to say whatever he wanted and that any other lawmaker should be able to endorse violence if they pleased. He praised Sen. Pat Toomey (R-Pa.) multiple times, mentioned “suburban Pennsylvania” and summarized the Bill of Rights as stating, “Congress shall make no law abridging all of these things.”
Some Republican senators were confused by Castor’s stream of non sequiturs.
“Disorganized, random,” is how Cassidy described it. “They talked about many things, but they didn’t talk about the issue at hand.”
“I was really stunned at the first attorney who presented for former President Trump,” said Sen. Lisa Murkowski (R-Alaska), who also was among the six Republicans to vote to hold the trial. “I don’t think he helped with us better understanding where he was coming from on the constitutionality of this.”
Eventually, Castor admitted that his speech was an improvisation brought about by the compelling nature of the House managers’ arguments.
Schoen then came forth with the culture war froth that plays well in conservative media soundbites. He also ran through an argument that Trump’s impeachment was an illegal “bill of attainder,” a punishment enacted by a legislature targeting a private citizen without trial. He also argued it was an infringement on Trump’s First Amendment right to free speech. Neither of these arguments had any bearing on the question of jurisdiction.
When Schoen did focus on that question, he presented multiple contradictory arguments. The most prominent one was that the impeachment by the House was unconstitutional because it offered Trump no due process as it was conducted quickly without any hearings. And then he argued that the Senate trial would be unconstitutional because Trump was now no longer in office. In other words, the process was both too fast and too slow.
This, of course, ignores the fact that then-Senate Majority Leader Mitch McConnell (R-Ky.) adjourned the Senate for the remainder of Trump’s term in office after the House impeached the president.
After Trump’s lawyers ate up their two hours of allotted time, Raskin declined to rebut at the moment. The Senate then voted to hold the trial with the six Republicans ― Cassidy, Murkowski, Susan Collins (Maine), Mitt Romney (Utah), Ben Sasse (Neb.) and Pat Toomey (Pa.) ― joining all 50 Democrats and independent in support. The final vote of 56-44 featured the same percentage of support ― 56% ― to hold the trial as the vote in 1876 in the Belknap case.
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