The impeachment trial of former President Donald Trump began on Tuesday afternoon in the Senate, just over a year after he was last acquitted of high crimes and misdemeanors in his first trial. Trump has been accused of inciting the insurrection at the U.S. Capitol on Jan. 6. Though there had been debate over whether or not the trial of a former official left office was constitutional, the Senate voted to continue with the trial in the end.
According to the House Democrats leading the impeachment, Trump must be convicted and barred from ever holding office again because he spread baseless theories about election fraud and incited violence at the Capitol. However, Trump’s defending lawyers said that the Constitution does not grant the Senate the power to try former officials, and so Trump’s trial was unconstitutional.
Despite objections from the defense, the Senate voted 56-44 that the impeachment trial is constitutional. Just six Republicans voted with all 50 Democrats that the trial was legal after four hours of debate from both sides. This was expected to pass as the Senate had previously already voted 55-45 that Trump could be tried last month, although the fact that just six Republicans joined the Democrats indicates that it is highly unlikely Trump will be convicted. This is because the conviction of a federal official in the Senate requires a two-thirds majority vote, and so the Democrats would have to convince 17 Republicans to cross party lines and vote to convict, a highly, highly, improbable outcome.
The Senate Republicans who voted to proceed with the trial are:
- Susan Collins of Maine
- Lisa Murkowski of Alaska
- Mitt Romney of Utah
- Ben Sasse of Nebraska
- Pat Toomey of Pennsylvania
- Bill Cassidy of Louisiana
Cassidy was the only Republican to change his mind about the constitutionality of the trial.
The Washington Post has tabulated that 37 Republicans stand in opposition to the conviction of the former president. This means that even if every undecided senator voted to convict (the best-case scenario based on this data is a total of 63 senators voting for conviction), there would still not be enough votes to convict Trump. Not only would Democratic impeachment managers have to convince all 23 undecided Democrats and Republicans to vote to convict, they would also need to make four Republicans who have already made up their minds to join them. This is highly unlikely to happen. Sen. Ron Johnson, R-Wis., said, in response to a question asking whether or not any amount of evidence would sway his mind, “No,” and Sen. Marco Rubio, R-Fla., has declared that the trial was “absurd.”
This was despite Democrats making a very strong case for conviction in the Senate. Rep. Jamie Raskin, D-Md., the lead impeachment manager, showed the Senate an extremely moving video of rioters breaking into the Capitol and members of Congress being ushered out of the House and Senate floors. They also included clips of Trump’s words on Twitter and what he said just before the storming occurred. Raskin said, “If that’s not an impeachable offense, then there is no such thing.”
Democratic impeachment managers have also rebuked a lot of Republicans’ talking points. Rep. David Cicilline, D-R.I., said that this trial, which was presided over by the president pro tempore of the Senate (Sen. Patrick Leahy of Vermont), was not unconstitutional even if the chief justice was not presiding. This was because even though the Constitution stipulates presidential trials be presided by the Chief Justice of the United States, all other trials are presided over by the Senate’s presiding officer, which is either the vice president or the president pro tempore. Cicilline said, “Right now, Joseph R. Biden Jr. is the 46th President of the United States. As a result, the requirement that the chief justice presides isn’t triggered.”
Another impeachment manager, Rep. Joe Neguse of Colorado, said that there was precedent of the Senate trying a former federal official. In 1876, Secretary of War William Belknap was tried, but acquitted, by the Senate even after he resigned. Neguse said that this was clearly precedent that stipulated the Senate needs to hold a trial for an official even if he or she might have resigned or left office by the time the trial is held. By not holding a trial after a president left office, Democrats argued, future leaders could commit high crimes and misdemeanors in their final weeks in office to avoid being held accountable.
In contrast with the Democrats’ strong performance, Trump’s defense handled Tuesday quite poorly, so much so Donald Trump was “not happy” with his legal team, which contained two lawyers, Bruce Castor and David Schoen, an aide said.
Castor was the first of the two lawyers to speak and delivered a rambling, incoherent defense of the former president without any graphics or other aids. He referred little to Trump nor Jan. 6, but rather spoke at length about Trump’s right to free speech and about partisan impeachment cycles. At one point, he suggested that Sen. Ben Sasse, a Nebraska Republican who voted to allow the trial to proceed, “faces the whirlwind” and called Nebraska a “judicial-thinking place,” which drew a puzzled look from the senator himself. As Castor spoke, senators appeared bored or disinterested and spoke with other colleagues. Sen. John Cornyn, a Republican of Texas who is a likely “no” vote on conviction, said that “the president’s lawyer just rambled on and on,” and that the performance by the lawyers “was not one of the finest I’ve seen.”
Though Schoen gave a slightly better speech in front of the Senate, at one point accusing Democrats of hiring a movie company to produce the video documenting the events that occurred on Jan. 6 and showing a video of Democratic senators calling for Trump’s impeachment for the past four years, Trump was still extremely dissatisfied with his trial team’s performance.
A Trump aide said that on a scale of one to 10, the president’s anger at his defense was about an eight.
The legal team was hastily put together about two weeks before this trial when many of his initial lawyers quit in protest because Trump refused to sign a letter guaranteeing that they will be paid, even though he has already raised millions of dollars from claiming the election was “rigged.” Trump has a long history of refusing, or using someone else’s money, to pay his lawyers.
After today, Democratic impeachment managers will have 16 hours over Wednesday and Thursday to make their case, while Trump’s lawyers will have 16 hours over Friday and Saturday to make their case. Then, the Senate will decide whether or not to call up witnesses. If no witnesses are called, which is highly likely considering both sides are seeking a speedy impeachment trial, the trial could end as soon as Sunday or early next week, with a final vote to convict or acquit coming then.
And even if conviction fails, it may still have already delivered Democrats a victory. Since Democrats already knew conviction was highly unlikely, they saw this as an opportunity to publicly denounce Trump’s actions and deliver a formal record of Senate Republicans refusing to seek accountability for Trump’s actions.
The issue of Trump is likely to remain a big issue in the GOP going forward. Many members of Congress are still unwilling to break with the Donald Trump rhetoric, for fear of being primaried by Trump loyalists. In fact, it is quite likely that even without his Twitter megaphone, Trump will still remain a key driving force within the Republican Party. Only time will tell how popular the Trumpism rhetoric is—the next elections are quite a long time away—but with Trump driving out turnout so much (on both sides), congressional Republicans may see benefit in siding with Trump, especially those coming from solid red states.