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Second impeachment trial of Donald Trump

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See also: First impeachment trial of Donald Trump
Second impeachment trial of Donald Trump
President pro tempore Patrick Leahy presides over the second impeachment trial of Donald Trump.
AccusedDonald Trump, former President of the United States
Proponents
DateFebruary 9, 2021 – present
Charges
CauseTrump's conduct before and during the storming of the U.S. Capitol; Trump–Raffensperger phone call

The second impeachment trial of Donald Trump, the 45th president of the United States, began on February 9, 2021.[1] Trump was impeached for the second time by the House of Representatives on January 13, 2021. The House adopted one article of impeachment against Trump: incitement of insurrection. He is the only U.S. president and only federal official to be impeached twice.[2] The article of impeachment addressed Trump's attempts to overturn the 2020 presidential election results (including his false claims of election fraud and his efforts to pressure election officials in Georgia) and stated that Trump incited the insurrection of the Capitol in Washington, D.C., while the Congress was convened to count the electoral votes and thus formalize the victory of Joe Biden.[3]

Trump was impeached a week before his presidential term came to an end on January 20, 2021, and he is to be tried after he has left office. There has been debate about whether a president can be impeached and tried when he is no longer in office. Although he cannot be removed from office – the usual goal of impeachment – the possibility remains of permanently barring a convicted former president from ever holding public office. The Constitution does not state whether a Senate impeachment trial may or may not be held for persons who no longer hold public office, but there is precedent that allows for an impeachment trial: in 1876, Secretary of War William W. Belknap resigned from office after he was implicated in the trader post scandal but before he was impeached; he was nonetheless impeached by the House and tried by the Senate (Belknap was acquitted, with a majority but not the required two-thirds voting for conviction).[4][5]


Trump was first impeached by the House of Representatives on December 18, 2019, on charges of abuse of power and obstruction of Congress in connection with the Trump–Ukraine scandal; he was acquitted on both counts by the U.S. Senate on February 5, 2020.[6] The charges alleged that Trump unlawfully sought to coerce Ukraine and other foreign countries into providing damaging narratives about Trump's political rival Biden, then a candidate for the Democratic presidential nomination, as well as information relating to Russian interference in the 2016 U.S. elections.[7][8]

With party control of the chamber evenly split, 17 Republican senators would need to vote to convict to secure the required two-thirds majority, assuming that all Democratic senators and the two independents caucusing with the Democrats vote to convict.[9][10] The vice president does not have a vote at the impeachment trial.

Background

Further information: Impeachment in the United States and Impeachments of presidents of the United States

Under the U.S. Constitution, the House has the sole power of impeachment (Article I, Section 2, Clause 5), and after that action has been taken, the Senate has "the sole Power to try all Impeachments" (Article I, Section 3, Clause 6). Trump is the third U.S. president to face a Senate impeachment trial, after Andrew Johnson and Bill Clinton.[11] Trump is the only federal official to be impeached twice.[12]

The Senate impeachment trial procedures are set forth under the impeachment rules adopted in 1986,[13][14] although specific rules are adopted for each trial, with the Senate majority leader exercising considerable power in setting trial procedure.[14]

House impeachment

See also: Second impeachment of Donald Trump
Wikisource has original text related to this article:

On January 11, 2021, U.S. Representatives David Cicilline, along with Jamie Raskin and Ted Lieu, introduced an article of impeachment against Trump, charging Trump with "incitement of insurrection" in urging his supporters to march on the Capitol building. The article stated that Trump had committed high crimes and misdemeanors by making several statements that "encouraged–and foreseeably resulted in–lawless action" that interfered with Congress' constitutional duty to certify the election and stated that Trump "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government," doing so in a way that rendered him "a threat to national security, democracy, and the Constitution" if he were allowed to complete his term.[15][16] A total of 218 of the 222 House Democrats co-sponsored the article of impeachment, assuring its passage.[17]

The House passed the article of impeachment on January 13, 2021, by a 232–197 vote. All 222 Democrats voted to impeach, joined by 10 Republicans (including House Republican Conference chairwoman Liz Cheney). Four Republicans did not vote, and the other 197 Republicans voted no.[18][19]

Trial delay and planning

In the days following Trump's second impeachment, Senate Majority Leader Mitch McConnell (R-KY) argued that, because the Senate was in pro forma sessions until January 19, it could not take on any business without the unanimous consent of members. According to the Senate rules for impeachment, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. Had the articles of impeachment been immediately transmitted to the Senate, Trump's trial thus would have begun on Inauguration Day, after Biden's inauguration.[20][21]

Senate Minority Leader Chuck Schumer (D-NY) called on McConnell to bring the Senate back into session immediately after the House transmits the article of impeachment, and also to advance the confirmation process for Biden's Cabinet nominees so that the incoming administration's team is in place on day one.[22] Some, including House Majority Whip Jim Clyburn (D-SC), initially suggested that the House might transmit the article of impeachment to the Senate at a later date (possibly after Biden's first 100 days as president), giving time for the Senate to consider Biden's legislative program and to confirm Biden's cabinet nominees.[21][23][24] However, House Democrats have opposed a delay, stating that Trump remains a danger while he is in office, and House Majority Leader Steny Hoyer (D-MD) said on January 14 that the article of impeachment would be transmitted to the Senate without delay.[23]

After the House impeached Trump, President-elect Biden stated, "I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation."[23] Biden said his priority is enacting a new stimulus bill and rebuilding the economy.[25] He discussed with McConnell the possibility of "bifurcating" the Senate calendar, allowing the trial to proceed while also allowing other business (such as nominations and legislation) to move forward without delay.[23] Under this plan, the Senate could split its days between the trial and other business, rather than having all its time consumed by the trial.[25][26] Former Senate Parliamentarian Alan Frumin said that Senate rules would permit such a course.[23] McConnell told Biden that he would consult with the Senate parliamentarian on such a parallel-track system.[27] Schumer, who would replace McConnell as Senate majority leader, said that a Senate trial could begin immediately.[23]

Law professor Ronald Krotoszynski has written that the Senate could speed up impeachment proceedings (completing the process in a few days, rather than a few weeks) through a process akin to civil summary judgment. This would be permissible under the Constitution, which specifies that the Senate must "try" articles of impeachment and vote to convict (remove) by a two-thirds majority, but allows the Senate to set its own trial rules or procedures on the Senate, as reaffirmed by the U.S. Supreme Court in Nixon v. United States (1993).[28]

On January 22, 2021, it was announced that House Speaker Nancy Pelosi would transfer the articles of impeachment to the Senate on January 25 with the Senate trial expected to be held during the week of February 8.[1][failed verification]

Impeachment trial of a former president

A Congressional Research Service report concluded "that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried."[29] Ahead of the trial, 150 legal scholars from across the political spectrum published a letter affirming "that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents."[30][dead link] Law professors Laurence H. Tribe and Stephen I. Vladeck argue that because removal from office is only one of the two possible consequences of a conviction (the other being disqualification for holding public office), the purpose of the trial is not nullified if the impeached person no longer holds public office.[31][32] Gregg Nunziata, a former Republican lawyer for the Senate Judiciary Committee, similarly noted that because impeachment power includes the power to disqualify the person from federal office for life, allowing officeholders to evade this by simply resigning would render "this important punishment ... a nullity."[33] Leading conservative lawyer Charles J. Cooper agreed, writing in online in the Wall Street Journal the weekend before the trial that there is no Constitutional prohibition against a post-presidency trial.[34][35] Cardozo School of Law constitutional law professor Kate Shaw argues that "Drafting history, impeachment practice, and basic constitutional design all point clearly in favor of the constitutionality of trying an ex-president."[33] Legal scholar Brian C. Kalt, who has published research about late impeachments, states that "In multiple cases, the House and Senate have proceeded as though they can impeach and try people who have already left office, and in one case the Senate took a specific vote to that effect."[33]

There is precedent for impeaching and trying a federal official who already left office ("late impeachment").[33] In 1797, the House impeached Senator William Blount for conspiracy. The Senate tried him, even though the Senate had already expelled Blount.[33] In 1876, Secretary of War William W. Belknap resigned hours before the House of Representatives voted for his impeachment with charges relating to his role in the trader post scandal, and the Senate proceeded to hold the trial, ruling by a vote of 37–29 that it did have jurisdiction after a challenge by Belknap's attorneys.[4][5][36]

Before the trial began, most Republicans in the Senate argued that the Senate lacks the constitutional authority to conduct an impeachment trial of a former president.[29] This argument has also been made by former federal appellate judge J. Michael Luttig,[37] as well as Trump's former lawyer at his impeachment trial, Harvard Law School professor emeritus Alan Dershowitz,[38] and law professor Jonathan Turley, who testified in Trump's favor at his first impeachment trial.[29]

Officers of the trial

Presiding officer

Patrick Leahy, senior U.S. senator from Vermont and President pro tempore of the Senate, presiding officer
Kamala Harris, Vice President and President of the Senate, for potential tie-breaking votes

Patrick Leahy, president pro tempore of the Senate, is presiding over the trial,[39][40] in place of Vice President Kamala Harris, the ex officio president of the Senate, who may nonetheless involve herself if any tie-breaking votes of a simple majority need to be cast.[41] Senate Majority Leader Chuck Schumer said that Chief Justice John Roberts declined to preside over the trial.[42]

Prior to the selection of Leahy as presiding officer, there was debate as to who constitutionally should hold that role. Article I, Section 3, Clause 6 of the U.S. Constitution states that the Senate has the sole power to try impeachments and that "When the President of the United States is tried the Chief Justice shall preside."[43][44] Various commentators questioned whether the chief justice must preside over the trial of former presidents.[43][45] Princeton University political scientist Keith Whittington noted that the issue is "unsettled, completely without precedent, and unspecific in existing Senate rules and precedents."[45] The University of North Carolina law professor Michael Gerhardt, an expert on impeachment, stated that he believed that, if the impeachment trial began after Trump left office, Harris, as opposed to Roberts, would preside, as Trump would no longer be president.[43] Conversely, University of Texas law professor Steve Vladeck said that "the question should be whether the impeached officer was President at the time of impeachment" and thus Roberts should preside over the trial of Trump even after he leaves office.[43] Vladeck pointed out that "if Trump resigned (or his term ended) mid-trial, it would be more than a little odd for the Chief Justice to give way to the Vice President."[45] Georgia State University law professor Neil Kinkopf's view is that "a trial of a President (even a former President) is a momentous event and having the Chief Justice preside seems more congruent with, or more fitting of, the occasion."[45]

House managers

On January 12, the day before the House debated the article of impeachment, Pelosi named nine Democratic representatives to be managers in a Senate conviction trial: Jamie Raskin (lead manager), Diana DeGette, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Joe Neguse, Madeleine Dean, and Stacey Plaskett.[46] By then, 218 members of the 222-member House Democratic caucus had signed on as sponsors of the article, assuring its passage. The managers were chosen for their expertise in constitutional law, civil rights, and criminal justice. Raskin is a former constitutional law professor at American University. Lieu is a former military prosecutor in the United States Air Force. Cicilline is a former public defender. Swalwell was a former prosecutor in California. DeGette is a former civil rights attorney. Castro, Neguse, Dean and Plaskett are all lawyers in private practice.[47]

Democrats are relying on many of the same lawyers and aides who helped assemble the first impeachment trial case, including Susanne Sachsman Grooms from the House Oversight and Reform Committee, and Aaron Hiller, Arya Hariharan, Sarah Istel and Amy Rutkin from the Judiciary Committee. The House also temporarily called back Barry H. Berke, a seasoned New York defense lawyer, to serve as chief counsel and Joshua Matz, a constitutional expert.[48]

House managers
Lead manager
Jamie Raskin
(Maryland) 		Diana DeGette
(Colorado) 		David Cicilline
(Rhode Island) 		Joaquin Castro
(Texas) 		Eric Swalwell
(California)
Ted Lieu
(California) 		Joe Neguse
(Colorado) 		Madeleine Dean
(Pennsylvania) 		Stacey Plaskett
(U.S. Virgin Islands)

Trump counsel

It had been unclear who would be on his legal team, as numerous prominent law firms have refused to represent him. The Lincoln Project has publicly pressed law firms not to do so.[38] Law & Crime reported that "essentially all respectable law firms and attorneys" were distancing themselves from him.[49]

Rudy Giuliani, as Trump's personal lawyer, was left out of early conversations about the upcoming defense, and Trump ordered his aides to stop paying Giuliani.[50][51][52] On January 18, one day after meeting with Trump, Giuliani said he would not represent Trump at the Senate impeachment trial, stating: "Because I gave an earlier speech [at the rally], I am a witness and therefore unable to participate in court or in the Senate chamber."[53] Similarly, John Eastman, who joined Giuliani on stage at the January 6 rally, was initially considered for a role on Trump's defense team, but he withdrew because his role at the rally made him a witness.[54] Pat Cipollone, Alan Dershowitz, and Jay Sekulow, who, as Trump's White House Counsel and personal lawyers, respectively, helped lead Trump's defense effort during his first impeachment over Ukraine, will not represent Trump at this second impeachment trial.[55] Other lawyers who defended Trump during his first impeachment trial, including former Florida Attorney General Pam Bondi, Eric Herschmann, Patrick Philbin and Marc Kasowitz, are not interested in joining the defense for the second impeachment trial. Some of them have privately expressed their belief that Trump's actions were indefensible.[38]

Trump and congressional Republicans considered designating two of Trump's most vociferous defenders in Congress—Jim Jordan and Elise Stefanik—to represent him at his impeachment trial. Both voted to reject electoral votes in favor of Biden, even after the president's supporters stormed the Capitol on January 6 during the counting of the electoral votes. Neither is an attorney.[49][a] Congressman Matt Gaetz suggested he’d resign his position in Congress to represent Trump if asked to be part of the legal team.[56][57]

In late January, Trump formed a defense team of five attorneys to be led by Butch Bowers, a South Carolina-based lawyer who helped former South Carolina governor Mark Sanford fight off being removed from office and who also helped former South Carolina Governor Nikki Haley during an ethics investigation.[55][58] Senator Lindsey Graham of South Carolina had arranged Trump's hiring of Bowers.[59] Subsequently, four more lawyers were named to the defense team under Bowers: Deborah Barbier, a Columbia, South Carolina, criminal defense lawyer and former federal prosecutor who has represented high-profile, controversial clients; former acting U.S. Attorney General Johnny Gasser; criminal defense attorney Greg Harris; and Josh Howard of North Carolina.[60][61][62][63] However, the defense attorneys all withdrew on January 30, one week before the trial.[63][64][65] The departures occurred after Trump clashed with his attorneys on strategy and fees. Trump wanted to focus on his false claims that the election was "stolen" from him, in contrast to the lawyers, who insisted on focusing on the legality of convicting a former president. Trump was unhappy with the fees and expenses estimated by the lawyers.[63][64][66] None of the lawyers had been paid any advance fees nor had they signed letters of intent.[64]

On February 1, after the collapse of his earlier legal team, Trump announced that David Schoen and Bruce Castor would be his new defense lawyers.[67][68]

Senators' positions

Senators' positions on conviction during trial
according to USA Today[69]
Party Support
conviction 		Oppose
conviction 		No official
statement
Democratic 38 0 10
Republican 5 35 10
Independent 2 0 0
Total 45 35 20

Senate Democrats favor the conviction of Trump, stating that the evidence is clear and straightforward. Senator Richard Blumenthal (D-CT) said: "The evidence is Trump’s own words, recorded on video. It's a question of whether Republicans want to step up and face history."[10] Senator Kirsten Gillibrand (D-NY) said, "This is a very simple allegation. It is incitement to insurrection. We could conduct a trial in a concise amount of time because the evidence that's needed is pretty direct."[9] In the run-up to the trial, a number of Republican senators opposed holding a trial.[70][71] Republican Senator Rand Paul of Kentucky continued to make false claims of election fraud.[72][73] Other Senate Republicans, such as Marco Rubio of Florida, contended that a Senate trial would be too divisive and that it would be "arrogant" for the Senate to exercise its power to bar Trump from holding office in the future.[74][75]

Assuming all Democratic senators (and the two independent senators caucusing with the Democrats) vote to convict Trump, 17 Republican senators would need to vote to secure the two-thirds majority for conviction. If Trump is convicted, then the Senate could disqualify him from holding any federal office by a simple majority vote.[9][10] As of February 9, 45 senators (38 Democrats, 5 Republicans, and 2 independents caucusing with the Democrats) supported conviction, 35 senators (all Republican) opposed conviction, and 20 senators (10 Democrats and 10 Republicans) haven't released an official statement yet. If all 20 voted to convict Trump with no official statement it would still be less then the 67 votes needed to convict.[69] Senator Lindsey Graham (R-SC) has worked to persuade other Republicans to vote against conviction.[10] Republican Senator Mitch McConnell, the former Senate Majority Leader, reportedly told senators their decision on whether to convict the outgoing president will be a "vote of conscience"[76] and told colleagues he was undecided whether he himself will vote to convict.[77] He later stated on the Senate floor that President Trump "provoked" the mob that stormed the Capitol.[78]

Pre-trial

Opening ceremonies

Nancy Pelosi signing the article of impeachment
Senator Chuck Grassley administers the oath of office to President pro tempore Patrick Leahy
Senators taking oath

Article I, Section 3, Clause 6 of the U.S. Constitution states that "The Senate shall have the sole Power to try all Impeachments." Per the Senate's impeachment rules adopted in 1986, the submission of the articles to the Senate initiated the trial.[13] Speaker Pelosi signed the article of impeachment on January 13, 2021.[79] The article was formally transmitted to the Senate on January 25, 2021.[80] On January 26, the House impeachment managers, accompanied by the clerk of the House and the acting House sergeant at arms, conducted the ceremonial procession from the House to the Senate (across the National Statuary Hall and the Capitol rotunda) to formally deliver the article of impeachment, triggering the trial.[81][82] Raskin, the lead House impeachment manager, read the article to the Senate.[81]

Senate President pro tempore emeritus Chuck Grassley (R-IA), swore in the chamber's presiding officer, Senate President pro tempore Patrick Leahy (D-VT),[83] who then swore in all senators who will act as jurors. Each senator then signed the oath book. Each is required to take the following oath or make the affirmation:[83][84][85][86]

Oath: I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws: So help me God.

Affirmation: I affirm that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws.

The acting Senate sergeant-at-arms, Jennifer Hemmingway, then read aloud the following proclamation to mark the beginning of the proceedings:

Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, the now former President of the United States.

Senator Patrick Leahy signing the summons for second impeachment of Donald Trump.

The summons to Trump was issued the same day.[83]

Rand Paul's point of order to dismiss

On January 26, Republican Senator Rand Paul forced a vote to dismiss the impeachment charge, on the basis that it was unconstitutional to try a past president. The motion was defeated 55–45, with all Democrats, both the independents, and five Republicans (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania) voting against the motion.[87][29] The vote was seen as a "test vote" and was viewed as a strong indication that the Senate would not reach the two-thirds majority required to convict Trump.[29][88]

Trial memoranda and responses

Under an agreement between Chuck Schumer and Mitch McConnell, the pre-trial briefing schedule was set.[83]

House's brief, Trump's answer, House's replication

Trial Memorandum of the House of Representatives[89]
File:Answer of President Trump to the Trial Memorandum Of The United States House Of Representatives In The Second Impeachment Trial Of President Donald John Trump.pdf
Answer of President Trump to the Trial Memorandum of the House of Representatives[90]
Replication of the House to the Answer of President Trump[91]

The House of Representatives, through the nine Democratic impeachment managers, filed an 80-page pretrial brief on February 2. The detailed brief stated that Trump was "singularly responsible" for the violent attack on the Capitol on January 6, citing his preceding campaign to undermine democracy and overthrow the election, and argued that acquitting Trump and failing to disqualify him from future office would gravely harm the nation, stating: "President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A president who violently attacks the democratic process has no right to participate in it."[92]

The impeachment managers argued that the expiration of Trump's term, and his new status as a private citizen, did not present a bar to Senate trial and conviction, writing: "There is no 'January exception' to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.[92] and that it was "unthinkable" that the Framers of the Constitution would have left the country "virtually defenseless against a president's treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck."[93] The House brief stated that "if provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be."[94]

Trump's lawyers filed a 14-page response to the article of impeachment later the same day.[94] Trump's lawyers did not explicitly embrace Trump's false claims of a "rigged" election,[94] but nevertheless echoed them, asserting that "insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president's statements were accurate or not, and he therefore denies they were false."[93] Trump's lawyers also argued that the impeachment proceeding is legally "void" because Trump is no longer president.[95][96][94] The brief asserted that prior to the January 6 riots, Trump had "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect."[94]

The House had predicted that Trump would use the First Amendment for his defense, which they countered in their brief that the First Amendment was not applicable to an impeachment trial, writing: "The First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office."[95] Quoting the standard established in Brandenburg v. Ohio (1969), a landmark decision of the U.S. Supreme Court interpreting the First Amendment,[97] the House added that "speech is not protected where it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[95] Nearly 150 leading First Amendment lawyers and constitutional scholars from across the political spectrum found Trump's First Amendment assertion "legally frivolous" and not a viable defense against conviction.[98][99]

The House submitted its replication to Trump's answer on February 8.[100]

Trump's brief, House's reply

File:Trial Memorandum of President Trump in the Second Impeachment Trial of President Donald John Trump.pdf
Trial Memorandum of President Trump[101]
Reply Memorandum of the House to the Trial Memorandum of President Trump[102]

Trump, through his attorneys Bruce L. Castor Jr., David Schoen, and Michael T. van der Veen,[103] [104] The brief asserted that Democratic leadership in the House were engaging in a "selfish attempt" to capitalize on the storming of the Capitol and its aftermath. They argued that instead of healing the nation or prosecuting lawmakers who participated in the riot, they instead intend "to callously harness the chaos of the moment for their own political gain."[104] Unusual for legal documents, Trump's lawyers invoked partisan rhetoric, writing that Democrats suffer from "Trump Derangement Syndrome"; sought to "silence a political opponent and a minority party" as part of a years-long effort; and "hunger for this political theater" that would be "a danger to our Republic [sic] democracy and the rights that we hold dear."[105]

Seeking to distance Trump from his supporters who assaulted the Capitol, his lawyers wrote that "the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted."[105] Trump's lawyers, citing discredited sources such as the conspiracy theorist The Gateway Pundit website, also falsely claimed in the brief some elements of the Capitol insurrection consisted of anti-Trump rather than pro-Trump figures.[105][106]

Trump's lawyers argued that Trump did not incite the rioters and that his comments and rhetoric about fighting was metaphorical rather than a call for violence.[104] They contended that Trump, in the rally preceding the assault on the Capitol, used the term fight in "in the figurative sense" and not "to encourage acts of violence."[104] Trump's lawyers also described some of Trump's acts, including a phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to "find" additional votes for him to overturn Biden's victory in Georgia, as merely political.[105] Trump's lawyers also repeated their free-speech argument, arguing that he could not be convicted due to the First Amendment;[105] a minority of legal scholars believe that the First Amendment applies in the impeachment context.[107]

The brief also denies that Trump took no steps to halt the violence, described him as "horrified" by the scene and asserting that there was a "flurry of activity" inside the White House constrained by "complex procedural elements".[105] Contrarily, The Washington Post cites administration officials and others in contact with Trump on that day as describing him as delighted and ignoring requests to try to restrain the mob.[108]

The brief makes 15 references to a 2001 article on impeachment by prominent legal scholar Brian Kalt, asserting that he had concluded that impeaching a former president is unconstitutional. Kalt replied that Trump's lawyers made "flat-out misrepresentations" of his work, and that he had actually concluded that there is a "solid basis" for post-presidential impeachments, having noted and rejected contrary arguments.[109]

In an unprecedented maneuver in American history, the Trump defense team declared that Trump would, if convicted by the Senate, attempt to overturn the verdict. Trump’s lawyers say the conviction would be "unauthorized" and "non-binding" – and that if Trump runs for president again, it "would be challenged in a court of law".[105] Given Nixon v. United States, it is unclear whether or to what extent a challenge to a Senate impeachment conviction would be justiciable.[107] The Supreme Court case had unanimously determined that the question of whether the Senate had properly tried an impeachment was a political question and could not be resolved in the judicial branch.[110]

The House submitted its reply memorandum on February 9th, 2021.[83][102]

Trump declines invitation to testify

Request of Jamie Raskin on behalf of the House for the testimony of President Trump[111]

In a letter to Trump attorneys on February 4, lead impeachment manager Jamie Raskin invited Trump to testify (and be subject to cross-examination) before or during the impeachment trial; the House impeachment managers argued that his testimony was needed after he disputed the House's allegations that he incited the insurrection at the Capitol.[112] The letter stated that Trump's refusal to testify would support "a strong adverse inference" against Trump.[112] The House's letter noted that there was no barrier to a former president giving testimony (and noted that Presidents Gerald Ford and Bill Clinton had testified in office, and the Supreme Court held in Trump v. Vance (2020) that Trump was not immune from legal process while serving as president).[113]

Trump's lawyers Castor and Schoen responded to Raskin the same day in a terse letter declining the invitation.[112] In their response, they called the House's request for Trump's testimony "a public relations stunt"; rejected the implication of adverse inference for refusing to have Trump testify; said that the House "cannot prove" its allegations; called the impeachment trial a "unconstitutional proceeding"; and stated that it is too serious "to try and play these games".[1][114][115]

The House impeachment managers signaled that they would not subpoena Trump's testimony, stating that there is ample other evidence (including video evidence) that supports his guilt.[116] Raskin stated that Trump's "immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt."[116]

Argument preparation

Prosecution

In preparation for the trial, House Democrats built a detailed case against Trump, emphasizing what Trump knew in advance of the attack on the Capitol on January 6 and the effect of Trump's words and actions on his rioting supporters, with the goal of showing that Trump "summoned the mob, assembled the mob, and lit the flame of this attack."[117] In a notable departure on strategy, the managers declined to discuss the logistics of their case, where in the previous impeachment trial they had engaged in numerous communication platforms to advance their position to the public. The managers also seek to apply the lessons learned in the last impeachment trial: not antagonize Republicans, use lots of video, and make succinct arguments.[48][118] The managers are preparing to conclude in a week, forgoing witnesses as they believe it would be unnecessary and hinder Biden's priorities on passing legislation and confirming nominees.[119] The managers intend to lean on evidence collected in FBI affidavits charging hundreds of the Capitol insurrectionists, many of whom cited Trump's comments as permission to storm the Capitol. On certain filings, Trump is even described as a "de facto unindicted coconspirator" for the Capitol riots and the driving force behind the breach according to Proud Boys organizer Ethan Nordean.[105] Accordingly, the House was reported to present their case like a "violent crime criminal prosecution."[120]

House impeachment managers and the staff, aided by the law firm Debevoise & Plimpton, have compiled audio and video footage of Trump's rally and the ensuing attack on the Capitol, as well as details about the injuries sustained by police.[117][121][122] The managers plan to rely heavily on video and offer an emotionally charged presentation, including numerous statements from Trump and state officials throughout the summer undermining the election, including the audio of the Trump–Raffensperger phone call; focusing on overturning the Electoral College vote count; and juxtaposing Trump's remarks, statements, and conduct on along with storming of the Capitol.[48][119][123][121][118][124]

According to the New York Times, the managers were also concerned about implicating Republican lawmakers who entertained the president's claims of election fraud, notably those who questioned and objected to the 2021 Electoral College vote count, as well as in the case of Cruz and Hawley, played a role in the Capitol storming. The managers seek to make clear that it is not his party but Trump who is on trial, so as to not alienate the GOP senators and have a chance at making an effective case.[125][48]

Defense

Trump has announced that he will not testify for the impeachment trial.[126] Castor and Schoen indicated that they intend to mount a largely technical defense, contending that the Senate lacks jurisdiction to judge a former president after he has left office because the Constitution does not explicitly say it can, giving Republicans an exit from judging Trump’s conduct. Castor and Schoen also plan to deny that Trump incited the violence or intended to interfere with Congress’s formalizing of Biden’s victory, asserting that his false claims that the election was “stolen” are protected by the First Amendment. Castor told Fox News that he would also rely on video, including the instances of riots and looting that occurred in the Black Lives Matter protests in Portland and 2020 racial unrest in American cities, and the Democrats' rhetoric to the unrest, as a source of hypocrisy.[48][127][128]

Procedural resolution

Senate Resolution 47 - Organizing Resolution[129]

On February 8, Schumer and McConnell reached an agreement on the procedural resolution for the trial, giving the impeachment managers and Trump's lawyers up to 16 hours each to present their cases and creating the option for a debate and vote to call witnesses if the House impeachment managers seek it. Schumer announced that the trial rules had been agreed to by Senate Republican and Democrats, as well as the House managers and Trump's legal team.[130] Trump's attorney David Schoen, who is of Jewish faith, originally requested to pause the trial for the Sabbath, starting on the evening of Friday, February 12, and to resume the trial on Sunday, February 14.[130][131] Senate Majority Leader Chuck Schumer and other Senate leadership agreed to this request, but Schoen later withdrew this request, saying that other Trump defense lawyers could continue the trial during this period. This will likely change the trial schedule set by the draft procedural resolution.[132]

The Senate voted, 89-11, to adopt the procedural rules for the trial on February 9, and the trial started with a four-hour debate on the constitutionality of the trial, then the Senate voted at a simple majority threshold to affirm the proceedings' constitutionality, 56-44.[133][130] The House managers began their presentation on February 10 at noon ET, with 16 hours allotted to present their case to the Senate, followed by Trump's lawyers, who also had 16 hours to present their case. There was a four-hour session in which senators asked questions to both legal teams, just like in previous impeachment trials. If the House impeachment managers so request, there would be an option to hold a four-hour debate and vote on calling witnesses. After four hours of closing arguments evenly divided, the Senate will then vote on conviction or acquittal.[133]

Constitutionality of trial and debate

In a two-hour presentation on February 9, the House managers argued that the Senate has jurisdiction to try the impeachment of Trump.[92] Castor opened the defense argument with what many criticized as a rambling 48-minute presentation.[134][135][136] He argued that the impeachment was politically motivated, and unnecessary because voters had already been "smart enough" to vote Trump out of office and, in doing so, explicitly acknowledged Biden had won a free and fair election.[137][138][139] Raskin played video footage of the Capitol storming and Trump's rhetoric to highlight the consequences if presidents could commit impeachable offenses in their last month without constitutional accountability.[140]

The statement that Biden won the election was seen to have undercut both their arguments in pre-trial briefs of Trump's repeated false claims that the election was fraudulent, stolen, and rigged; and accordingly his speech on January 6 was justified because he believed the election was fundamentally "suspect." Trump had initially made clear to advisers that he did not want his lawyers saying that Biden won the election fairly, even if it was not their main focus at the trial.[139] Accordingly, Trump was reported to be very displeased with Castor's performance.[141][142][143] Castor's argument was widely criticized for numerous bizarre and incoherent statements, such as "Nebraska, you're going to hear, is quite a judicial-thinking place."[144] Alan Dershowitz stated, "There is no argument. I have no idea what he's doing."[145]

Following the four-hour debate where both sides presented arguments on whether the trial was unconstitutional because Trump is no longer president, the Senate voted 56–44 that the impeachment trial was constitutional. The original five Republican senators voting with Democrats in the Rand Paul point of order voted in favor, along with Bill Cassidy (R-LA) who in a post interview used adjectives of focused, organized, and compelling to describe the case brought.[146] A simple majority was required to proceed. The lack of Republican support to proceed with the trial was interpreted as indicating an increased likelihood of Trump's acquittal.[147]

Opening arguments

Prosecution

Security footage, introduced as evidence by House impeachment managers, showing Vice President Mike Pence being evacuated from the Capitol after rioters breached the complex

On February 10, the impeachment managers began to present their case. They presented new footage of the attack, including police body camera footage. Citing this, Plaskett revealed that rioters came within 100 feet of where Vice President Pence was sheltering with his family, and raised the point that a gallows was constructed outside the capitol where rioters chanted "Hang Mike Pence." Citing the possession of a 950,000-volt stun gun by the man who was photographed with his feet on Pelosi's desk, as well as other evidence, Plaskett argued that the rioters intended to murder the speaker of the House. Plaskett stated that lawmakers "were put in danger because President Trump put his own desires, his own need for power, over his duty to the Constitution and our democratic process. President Trump put a target on their backs, and his mob broke into the Capitol to hunt them down."[148]

Mike Lee's motion to strike

Senator Mike Lee moves to strike portion of House managers' presentation

Immediately after the end of the first day of the opening arguments, Senator Mike Lee invoked an impeachment rule that allows senators to raise questions during the trial, including about the admissibility of evidence,[149] and moved to strike a portion of the prosecution's presentation that included characterizations of Trump's documented and reported calls to him and Senator Tommy Tuberville, claiming they were untrue. The objection caught the senators and Senate parliamentarians by surprise as, under Senate rules, they are not to ask but submit questions in writing. Leahy, who consulted with the Senate parliamentarian, pointed to a rule specific to this impeachment trial that allows the House managers to include evidence not previously in their pre-trial briefs, and denied the request. An outraged Lee demanded an appeal, and Joe Manchin demanded that Lee explain why the statements were false. The issue temporarily led to confusion as Leahy and Schumer sought to clarify the objection and restore order. Raskin agreed to withdraw that part of the presentation, and he and Schumer stated it may or may not be reintroduced the following day. The Senate adjourned thereafter.[149][150][151]

Aftermath

There is chance of potential criminal prosecution for Trump should he be convicted on his impeachment. Liz Cheney referenced a "massive criminal investigation" underway for everyone involved in the storming.[152] Georgia Secretary of State Brad Raffensperger confirmed that his office had started an investigation into Trump's attempts to overturn the state's election results, including a phone call the former president made to Raffensperger. The Fulton County district attorney Fani Willis has also started a criminal investigation into whether Trump should be charged for soliciting election fraud, a violation of Georgia state law.[153]

Public opinion

Further information: Second impeachment of Donald Trump § Public opinion polls

A Reuters/Ipsos poll released on January 22 found that 51% of Americans favored conviction of Trump in the Senate, 37% opposed, and 12% were unsure. 55% of Americans supported the Senate disqualifying Trump from holding federal office in the future; 34% opposed this step, and 11% said they were unsure.[154]

A Monmouth University poll released on January 25 found that 52% of Americans favored conviction of Trump in the Senate, while 44% opposed; 57% supported the Senate disqualifying Trump from holding federal office in the future.[155][156]

An ABC News/Ipsos poll released on February 7 found that 56% of Americans favored the Senate convicting Trump and disqualifying him from holding federal office in the future, with 43% opposed.[157]

A CBS News poll/YouGov released on February 8 found that 56% of Americans favored the Senate convicting Trump, with 44% opposed.[158]

A Hill/HarrisX poll released on February 10 found that 52% of Americans favored conviction with 48% opposed.[159]

A Vox/Data for Progress poll released on February 10 found that 12% of Republicans supported conviction compared to 82% of Democrats and 52% of independents and that 69% of Republicans said they’d be less likely to vote for a political candidate in their state if that person voted for conviction.[160]

See also

Notes

  1. ^ Jordan graduated from Ohio's Capital University Law School in 2001, but has never been admitted to the bar; Stefanik has no formal legal training.[49]

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