Trump Trial Moves Forward After Senators Clash Over Constitutionality

Senators upheld the constitutionality of the former president’s second impeachment trial, but the vote largely along party lines suggests he will ultimately be acquitted again.

Rep. Jamie Raskin, D-Md., right, the lead House impeachment manager, is joined by Rep. Eric Swalwell, D-Calif., left, and other managers as they prepare for the second impeachment trial of former President Donald Trump on Monday. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) — Heart-pounding scenes of the rampage by insurrectionists in the U.S. Capitol served as a gruesome backdrop for Senate debate Tuesday as lawmakers weighed the question of whether it is constitutional to impeach former President Donald Trump, now a private citizen. 

A total of 56 senators – all 50 Democrats plus six Republicans – agreed it is well within the bounds of the U.S. Constitution to impeach a former official after a decisive vote on whether Trump was subject to the Senate proceedings. However, 44 Republicans disagreed, including Senators Tom Cotton, Ted Cruz, Steve Daines, Lindsey Graham, Chuck Grassley, Josh Hawley, Cindy Hyde-Smith and Mitch McConnell. 

For anyone expecting a dry discussion over historic or scholarly text, however, the lead impeachment manager for the Senate trial warned at the outset of proceedings today that Tuesday’s debate would not be that.

“Our case is based on cold, hard facts,” Congressman Jamie Raskin, a Maryland Democrat, said on the floor of the chamber as lawmakers gathered  for a historic, if not altogether singular proceeding. 

For inciting an insurrection, the former reality television host was impeached for the second time of his presidential term on Jan. 13. It had been one week before that vote exactly that a violent mob of Trump’s supporters stormed the U.S. Capitol in a bid to stop the largely perfunctory process of counting the Electoral College votes from the 2020 election. 

The results were forgone: Joe Biden had won the election and the ceremony was just that — a ceremonial tradition signifying a peaceful transition of power in the United States. 

But it would not be peaceful on Jan. 6. 

Rioters loyal to President Donald Trump try to break through a police barrier at the Capitol in Washington on Jan. 6. (AP Photo/John Minchillo, File)

U.S. Capitol Police officer Brian Sicknick and four others died as a result of the melee, which unfolded as hundreds of officials, including Vice President Mike Pence, were quickly brought to safety. 

Speaking of Trump’s defense to the incitement article, Raskin blisteringly argued Tuesday against what the managers describe as Trump’s “January exception” theory. 

“Their argument is if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity,” said Raskin, a 30-year constitutional scholar and professor. “There is no January exception. The ‘January exception’ is an invitation to our Founders’ worst nightmare. If we buy this radical argument that President Trump’s lawyers advance, we risk allowing Jan. 6 to become our future.” 

Footage captured from both in and around the U.S. Capitol was played for several minutes Tuesday as House impeachment managers began to make their case for the constitutionality of impeaching Trump, who took civilian status Jan. 20. 

These clips showed lawmakers, unaware of the danger outside, interspersed between footage of rioters screaming, “Fuck these pigs,” “Let us in” and “There’s much more coming” as they breached the facade and forced through doorways.

One clip of a rioter shouting, “That’s what we need to have: 30,000 fucking guns up here,” was played against another of supporters chanting in unison, “No Trump, no peace.” 

Raskin also shared images of a rippling wave of bodies united together as they called out “heave, ho,” and pressed against a door that squeezed a police officer nearly to death. 

Trump’s defense team argued in a recent legal brief that conviction at an impeachment trial “requires the possibility of removal from office” and that without that possibility a trial cannot be had. 

For impeachment managers, however, that theory stands in opposition to the writings of the conservative Federalist Society, former 10th Circuit Judge Michael McConnell and even one-time Trump impeachment defender Jonathan Turley, a professor of law at George Washington University.

Representative Joe Neguse, a Colorado Democrat on the team of impeachment managers, highlighted Turley’s work on executive function theory Tuesday as it related over 140 years ago to Secretary of War William Belknap.

During Tuesday debate on the constitutionality of impeaching former President Donald Trump, lead impeachment manager Jamie Raskin cited the wisdom of William Davie, one of the Founding Fathers. (CSPAN graphic via Courthouse News)

After the House of Representatives launched an investigation of claims that he had profited off his position, Belknap tearfully resigned his post before he could be impeached. 

The House went ahead and impeached Belknap anyway, and the Senate eventually acquitted him of his charges. Another vote in the Senate quickly followed, this one finding that, regardless of his former-official status, Belknap’s impeachment was constitutional. 

“Since Belknap was no longer in office at the time of his trial, the Belknap case indicates that resignation from office does not prevent trial on articles of impeachment,” Turley wrote in 1999 for the North Carolina Law Review. 

Turley called Belknap’s impeachment a “corrective measure that helped the system regain legitimacy.”

Trump denies any responsibility for starting the Jan. 6 riot with a speech he gave the morning of — remarks that he now says are protected by the First Amendment. 

This rang hollow Tuesday for impeachment managers.

Unlike Belknap, Trump was not impeached for run-of-the-mill corruption, Neguse noted. Trump was impeached because of a violent insurrection that occurred under his watch and under his encouragement, the former attorney-turned-Colorado lawmaker argued. 

Bruce Castor, a former Montgomery County, Pa., prosecutor speaks, during a 2015 interview in Norristown, Pa. (AP Photo/Matt Rourke, File)

When taking the floor Tuesday in defense of the former president, Trump’s attorney Bruce Castor laid out a circuitous argument, devoting several minutes to a lament of political rancor, which he then tied clumsily to the fall of ancient Greece or Rome before raising questions of constitutional jurisdiction.

“The political pendulum will shift one day and partisan impeachments will become commonplace,” Castor said.

While at some points the former Pennsylvania prosecutor offered his praise for members of the Senate as “gallant” purveyors of the law and servants to their constituents, Castor also accused Democrats of overreacting to the attack.

“The real reason we are here is because Democrats don’t want to face Trump as a political rival again,” said Castor, standing just outside the chamber where blood was shed weeks earlier.

David Schoen, the other of Trump’s two attorneys, struck a more vitriolic note, reminiscent of the 45th president’s oratory during his single term.

Accusing impeachment managers of having spliced together fake footage of the Capitol for maximum impact, Schoen said Democrats saw the impeachment trial as their only chance for “partisan politicians to disenfranchise 74 million voters.”

“They don’t need to show you movies to show you the riot that happened here. … This is a process fueled irresponsibly by base hatred,” he said.

Schoen argued from a textual perspective, noting removal from office due to impeachment was a factual and legal impossibility in this case. Conviction without a removal is invalid, he said, arguing only current presidents can be impeached.

“This is the first time that the United States Senate has ever been asked to apply the Constitution’s textual identification of ‘the president’ in the impeachment provisions to anyone other than the sitting president of the United States,” Schoen said. “And of course, most significantly from a textual approach, the term specifically used is ‘the president’ not ‘a president’ and there can be only one president, the incumbent, at a time.” 

Schoen began by saying a great deal of Americans saw the impeachment process for what it was: “a chance 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,” he said. 

“They hated the results of the 2016 election and want to use this impeachment process to further their political agenda,” he said. “These elitists have mocked them for four years.” 

He warned the impeachment trial would tear the country in half, leaving millions of Americans feeling left out of politics. Accusing House impeachment managers of focusing on impeachment “like some sort of blood sport,” Schoen denied that holding Trump accountable for his actions would further unify the nation. 

“It is again for pure, raw, misguided partisanship that makes them believe that playing to our worst instincts somehow is good,” Schoen said. 

He added: “This is a process fueled irresponsibly by base hatred by these House managers and those who gave them their charge and they are willing to sacrifice our national character to advance their hatred and their fear, that one day, they might not be the party in power.”

Schoen further claimed that the Senate lacks jurisdiction to try Trump and that it afforded him no due process before the House voted to impeach, offering no explanation as to why the former president refused the chance to testify in his defense.

Earlier in his term, when impeached the first time for abuse of power and obstruction of Congress, Trump also refused to testify and withheld testimony from members of his administration.

The trial will resume Wednesday, with House impeachment managers getting 16 hours over a two-day span to present arguments plus two days allotted for Trump’s defense team. Four hours of additional rounds for questions in writing from either side will then be permitted.

Raskin on Tuesday quoted this tweet from Trump that he posted on Jan. 6 and then deleted as violence raged in and outside of the U.S. Capitol. (Image courtesy of CSPAN via Courthouse News)
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