Senate agrees trial is constitutional, as Trump consolidates votes for an acquittal

Written By: Nicholas Fandos ©️ 2021 The New York Times The New York Times
Washington Published: Feb 10, 2021, 02:58 PM(IST)

Donald Trump Photograph:( Reuters )

Story highlights

The House managers faced off against a hastily assembled legal team for Trump that offered an at-times meandering defense, before ultimately arguing that trying the former president would violate the Constitution.

A divided Senate voted Tuesday to proceed with Donald Trump’s second impeachment trial, narrowly rejecting constitutional objections after House prosecutors opened their case with a harrowing 13-minute video capturing the deadly Capitol riot he stands accused of inciting.

Though the presentation stunned senators who lived through the rampage into silence, only six Republicans joined Democrats in clearing the way for the case to be heard. The 56-44 vote was the second indication in two weeks that Trump was all but certain to be acquitted.

“The result of this trial is preordained,” Sen. Ted Cruz, R-Texas, said flatly. “President Trump will be acquitted.”

Even so, the nine House Democrats prosecuting the former president aimed their opening arguments squarely at Republicans who had the power to change the outcome. They cited an array of conservative legal scholars to argue that the Senate not only had the right to try a former president for official misconduct, but an obligation. And they offered a raw appeal from the well of the Senate, where a month before lawmakers had taken shelter as the pro-Trump mob closed in.

“Senators, this cannot be our future,” said Rep. Jamie Raskin of Maryland, the lead manager, as he fought back tears. He described being locked inside the House chamber while colleagues called loved ones “to say goodbye” and his own daughter and son-in-law feared for their lives nearby.

“This cannot be the future of America,” he continued. “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.”

It was a prelude to a case that Raskin and his team will begin prosecuting in full Wednesday. They seek to prove that Trump spent his final months in office trying to overthrow the election, using baseless claims of widespread voter fraud to rally supporters in Washington and then encourage them to march to the Capitol to try to confront Congress as it met to formalize President-elect Joe Biden’s victory.

The House managers faced off against a hastily assembled legal team for Trump that offered an at-times meandering defense, before ultimately arguing that trying the former president would violate the Constitution. It began with a circuitous presentation from Bruce Castor, who complimented the compelling case made by the managers and then launched into a speech that appeared to confuse and bore some senators in both parties.

His partner David Schoen was sharper, asserting that Democrats were driven by an “insatiable lust” to destroy Trump. Schoen warned that they would instead damage the country by setting a new standard to pursue former officials, despite the fact that the House voted with bipartisan support to impeach Trump before he left office.

“Under their unsupportable constitutional theory, and tortured reading of the text, every civil officer who has served is at risk of impeachment if any given group elected to the House decides that what was thought to be important service to the country when they served now deserves to be canceled,” Schoen said.

The defense’s case drew perplexed reactions from Republicans, evidently including Trump, who — barred from Twitter and out of sight in Florida — lacks the public megaphone he frequently used to weigh in on his first trial. The performance prompted at least one Republican, Sen. Bill Cassidy of Louisiana, to side with Democrats on the vote to allow the trial to proceed.

“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,” said Cassidy, who had voted last month in favor of a constitutional objection to the trial and was the only Republican to switch his position on the matter Tuesday. He quickly drew rebukes from the Louisiana Republican Party.

The debate reflected the historic nature of the undertaking. Though in the 19th century the Senate agreed to try a war secretary after he left office, it has never before sat in judgment of a former president. Trump is also the first president ever to be impeached and stand trial twice, and certainly the only one to require a court of impeachment to don masks and meet in the middle of a deadly pandemic.

With senators in both parties eager to conclude an undertaking whose outcome was clear, they agreed to rules that would allow for an extraordinarily rapid impeachment trial, with a verdict expected as soon as this weekend. It could conclude in as little as half the time of Trump’s first trial.

The speed reflected Democrats’ fears that pausing to judge Trump would spoil the momentum behind Biden’s agenda. Republicans, too, had good reason to want the trial over with, closing a chapter that has been divisive and damaging to their party.

By embracing the defense’s arguments for dismissal, Republicans gave themselves cover to acquit Trump without judging the case on its merits. Many Republican senators have said publicly and privately that they hold Trump at least partly responsible for the assault at the Capitol, but the former president retains a singular hold on their voters and their party. A vote to convict could be politically perilous.

Others, like Sen. Mitch McConnell of Kentucky, continue to insist they will serve as impartial jurors and are open to conviction even if they voted to dismiss the case on constitutional grounds. But the two positions are difficult to reconcile.

Seventeen Republicans would have to abandon Trump to reach the two-thirds threshold to convict him. In the vote Tuesday, the six Republicans who said the trial should go forward were Cassidy, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania.

Still, it was clear the House managers had fulfilled their goal of forcing senators to stare down the reality of what unfolded on Jan. 6 and contemplate Trump’s role in the rampage. Raskin, a former constitutional law professor, had senators sitting silently in their chamber, reliving the assault through a slickly produced video — complete with graphic scenes of violence by the rioters, who were using the kinds of expletives seldom heard on the Senate floor.

At one point, the anguished screams of a police officer echoed through the Senate chamber as video showed that he was nearly crushed by the mob at the door. Raskin pointed out that five people, including an officer, had died.

His appeal followed a denser constitutional and historical argument in which Raskin warned senators that the president wanted them to create a dangerous “January exception” that would undermine the founders’ system of checks and balances. Drawing from the 1787 Constitutional Convention and political logic familiar to lawmakers, he insisted forgoing a trial would send the message that future presidents are immune from wrongdoing in their final weeks in office.

“Everyone can see immediately why this is so dangerous,” he said. “It is 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 hang on to the Oval Office at all costs and to block the peaceful transfer of power.”

The words still hung in the Senate chamber as Raskin hit play on a video montage of the assault, interspersing the president’s own speech with footage of the pro-Trump throng mobbing the Capitol and marauding through its corridors.

“He would have you believe there is absolutely nothing the Senate can do about it,” Raskin said, gesturing at the images. “No trial. No facts. He wants you to decide that the Senate is powerless at that point. That can’t be right.”

Raskin said the framers had intended just the opposite. They had been perfectly comfortable with impeaching former officials, he said.

There were other, subtler nudges to pull Republicans into the trial. The managers repeatedly referred to conservatives’ favored approaches to analyzing the Constitution, cited legal scholars associated with the conservative Federalist Society and embraced an unlikely ally, Charles J. Cooper, an influential conservative lawyer allied with congressional leaders who made a forceful argument this week in The Wall Street Journal in favor of a trial.

As Rep. Joe Neguse of Colorado walked senators through the chamber’s own precedent on the question, he said their predecessors had confronted and rejected the same argument as Trump’s in the case of the war secretary in 1876.

“Literally, they were sitting in the same chairs you all are sitting in today, they were outraged by that argument,” he said, looking out at the chamber.

The arguments from Trump’s three-person defense team, installed just two weeks ago, were less cohesive.

Perhaps to his benefit, Castor took the air out of the room after Raskin’s vivid description of Jan 6. with an ambling, and at times contradictory, monologue about the passions of the moment and senators’ love of country. After nearly an hour, he reached a conclusion, saying that as a private citizen, Trump should not be impeached, and that if the Justice Department believed he had done anything wrong, it would be prosecuting him.

“There is no opportunity where the president of the United States can run rampant in January at the end of his term and just go away scot free,” Castor said. “The Department of Justice does know what to do with such people.”

He argued that Democrats really just wanted to make sure that Trump could not run again.

Following him at the podium, Schoen took a more adversarial role. He called Sen. Patrick J. Leahy, who was presiding as the Senate’s president pro tempore in place of Chief Justice John Roberts, a biased judge. Previewing the defense's own presentation expected this week, he said that Trump’s admonition to his supporters on Jan. 6 to “fight like hell” was protected free speech.

Schoen derided the managers for hiring a “movie company” to stitch together the most gruesome scenes of the attack as if it were a “blood sport.” But he played his own video presentation of clips of Democratic lawmakers through the years calling for Trump to be impeached, as ominous music played in the background.

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