• Bloomberg


The Senate affirmed the constitutional basis of former U.S. President Donald Trump’s second impeachment trial, clearing the way for arguments to begin on whether he incited an insurrection by inflaming the mob that stormed the U.S. Capitol last month.

After four hours of arguments from House of Representatives impeachment managers and Trump’s defense team, the Senate voted 56-44 to proceed with the trial, rejecting the former president’s contention that it is unconstitutional to try an official who is no longer in office.

Six Republicans joined with Democrats in voting to continue to the trial: Lisa Murkowski of Alaska, Bill Cassidy of Louisiana, Susan Collins of Maine, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania. Still, that is far short of the 67 votes that would be required for a conviction. Opening arguments are set to begin at noon on Wednesday.

Trump was impeached by the House on a single article accusing him of incitement of insurrection for stoking the anger of his supporters, leading to the mob storming the U.S. Capitol on Jan. 6 as Congress was certifying the Electoral College count that delivered the presidency to Joe Biden.

Trump’s lawyers had argued that his impeachment by the House was a politically motivated attempt to remove him as a challenger to Democratic power rather than a constitutional remedy for any wrongdoing.

"We are really here because the majority of the House of Representatives do not want to face Donald Trump as a political rival,” attorney Bruce Castor said as the former president’s defense team argued that the Senate’s impeachment trial is unconstitutional.

‘January exception’

Another Trump lawyer, David Schoen, said that Democrats have an "insatiable lust for impeachment.” During his presentation, Schoen played a video showing a procession of Democrats in Congress demanding Trump’s impeachment starting as early as 2017.

Rep. Jamie Raskin of Maryland, the lead House impeachment manager, argued that there is no "January exception” to holding a president accountable for his actions just before leaving office.

U.S. President Donald Trump, accompanied by first lady Melania Trump, on Jan. 20 | PETE MAROVICH / THE NEW YORK TIMES
U.S. President Donald Trump, accompanied by first lady Melania Trump, on Jan. 20 | PETE MAROVICH / THE NEW YORK TIMES

In their presentation, the House impeachment managers moved quickly to the core of their argument through a vivid and dramatic video of the former president’s supporters rampaging through the U.S. Capitol and attacking police officers.

The edited video juxtaposed Trump’s address to the crowd before the attack near the White House in which he urged supporters to march to the Capitol with scenes of the mob overwhelming barriers and lawmakers evacuating the House chamber. The screams and yells echoed through the Senate as the video played on large monitors.

"If you don’t fight like hell you’re not going to have a country any more,” Trump said to the crowd in the recording. As the mob surged to the Capitol, shouts of "Traitor Pence,” a reference to then-Vice President Mike Pence who was presiding over the electoral vote count, and "No Trump, no peace,” could be heard.

Trump was impeached "for doing that,” Raskin said as the video ended. "If that’s not an impeachable offense, then there’s no such thing.”

Castor and Schoen asserted that the Senate has no jurisdiction to try citizen Trump, saying that the Constitution offers only removal from office and disqualification from holding future office as the penalties for impeachment.

Castor defended Trump’s speech to a crowd of supporters before the attack on the Capitol as protected by the First Amendment.

If Trump were convicted, the Philadelphia attorney said, partisan impeachments over political speech could become commonplace.

‘Missed opportunity’

Many GOP senators criticized the former president’s defense team.

Murkowski said that the House impeachment managers "presented a pretty good legal analysis.” But she faulted Trump’s lawyers, particularly Castor.

"I couldn’t figure out where he was going,” she said. "I don’t think he helped give us a better understanding where he was coming from on the constitutionality of this. And I felt that Mr. Schoen did a better job. But I think they had a missed opportunity with their first attorney there.”

Cassidy said the presentations mattered in his vote to proceed with the trial.

"Anyone who listened to those arguments would recognize that the House managers were focused,” he said. "Anyone who listened to President Trump’s legal team saw they were unfocused, they attempted to avoid the issue, and they talked about everything but the issue at hand.”

Republican Sen. John Cornyn of Texas, who voted to dismiss the case, said Castor "just rambled on and on and on and didn’t really address the constitutional argument.”

"I thought we had a good day,” Castor responded.

Constitutional question

The trial got underway with senators taking their seats at mahogany desks where they were admonished to remain silent as both sides present their cases. Democratic Sen. Patrick Leahy, the senior member of the majority party, gaveled the proceeding to order at 1 p.m, taking the place at the chamber’s marble dais that Chief Justice John Roberts occupied during Trump’s first impeachment trial a year ago. Roberts isn’t required to preside because Trump is no longer in office.

Republican senators have advanced the constitutional question as the main justification to vote for Trump’s acquittal, though most of them have avoided directly defending his actions leading up to and on Jan. 6 when his supporters stormed the U.S. Capitol.

It would require at least 17 Republicans to vote to convict Trump at the trial’s conclusion to reach the needed two-thirds majority, and that appears to be unlikely.

Sen. Roy Blunt of Missouri, a member of Minority Leader Mitch McConnell’s leadership team, said he will be voting to acquit Trump at the end of the trial because he views the proceedings as unconstitutional.

"I’m going to vote like I voted the other day through the trial,” he told reporters. "I don’t think it’s constitutional. I don’t think we should be doing it.”

Blunt said he believes the trial will end on Saturday or Sunday.

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