Senate finds impeachment trial is constitutional, but most Republicans still disagree

Jon Ward
·Senior Political Correspondent
·8 min read

The U.S. Senate voted Tuesday that former presidents can be convicted in an impeachment trial, even after they leave office, clearing the way for several days of arguments over whether former President Trump should be found guilty of inciting the Jan. 6 assault on the U.S. Capitol.

But notably, most Republicans voted against this motion, just as they did less than two weeks ago. It was another indication that there is little chance that more than a handful of Senate Republicans are open to finding Trump guilty and barring him from holding political office in the future, which requires a two-thirds majority of 67 votes.

Only six Republicans voted to have the trial go forward, which was only one more than the five who voted similarly on Jan. 26. But a number of Republican senators also criticized the performance of Trump’s legal team.

The outcome of Tuesday’s vote was never seriously in doubt, but there was some question about whether more Republicans would vote in favor of the trial’s constitutionality than did last time. A number of conservative legal experts have publicly argued that impeaching a former president is indeed constitutional, and senators have had more time to analyze the legal arguments.

But Sen. Bill Cassidy, R-La., was the only Republican who switched his vote from January. A total of 44 Republicans voted to support the notion that Congress can do nothing to hold a president responsible for actions taken during office if they resign or leave office.

Jamie Raskin
Lead impeachment manager Jamie Raskin, D-Md. (Congress.gov via Getty Images)

The Democratic House managers who are prosecuting the case against Trump in the Senate trial focused their energies on this point: that if the Senate decides that a former president cannot be impeached for actions he or she takes while president, then that gives them a blank check to do whatever they want during their final days in office.

“We risk allowing January 6 to become our future,” said Rep. Jamie Raskin, D-Md., the impeachment’s lead manager. He said Trump’s lawyers were arguing for a “January exception” to the Constitution for future presidents. And the final days of a presidency are “when elections get attacked,” he said.

“Presidents can’t inflame insurrection in their final weeks and then walk away,” said Rep. Joe Neguse, D-Colo., one of Raskin’s fellow House managers.

And Rep. David Cicilline, D-R.I., said that the move to impeach and convict Trump was not a dispute over “forbidden” speech, or an attempt essentially to punish someone for expressing an unpopular political opinion, in this case Trump’s baseless insistence that he somehow won the November election. Rather, he said, it was an effort to censure and block from future power a former president for “inciting armed violence against the government.”

It was noteworthy that Senate Minority Leader Mitch McConnell, R-Ky., voted once again to deem the impeachment trial unconstitutional. He had signaled a month ago that he was pleased that Democrats were moving to impeach Trump, and his vote on Tuesday will be read as another step further away from that sentiment, just as the Jan. 26 vote was.

The next few days of arguments will center around whether Trump’s words, in the days and weeks leading up to Jan. 6 and on the day itself, did in fact provoke the mob to sack the Capitol. The attack left at least five people dead, including a Capitol Police officer, while at least 140 other police officers were injured.

Trump’s lawyers argue that the former president’s words were protected under the First Amendment, and that the impeachment is a partisan effort. Bruce Castor, a former prosecutor from Pennsylvania leading Trump’s legal team, said that Democrats “don’t want to face” the former president in the 2024 presidential election.

David Schoen, a civil and criminal attorney who is also part of Trump’s defense team, argued that the impeachment proceedings were “seeking to disenfranchise 74 million voters,” in a reference to the total number of votes Trump received in the 2020 election.

Bruce Castor Jr.
Bruce Castor Jr., a defense lawyer for former President Donald Trump, speaks on the first day of Trump's second impeachment trial. (Congress.gov via Getty Images)

The presentations of the two sides stood out for different reasons. Raskin began the manager’s arguments by playing a 13-minute video showing footage from Jan. 6. It began with Trump speaking on the Ellipse that day to supporters and encouraging them to go to the Capitol. It then showed his supporters making their way to the Capitol and storming the building, along with real-time reactions from lawmakers to what was happening.

The mood in the chamber was heavy and somber as lawmakers watched the replay of a day in which they were under assault and in physical danger from an out-of-control mob. Most Senators were slack-jawed and transfixed by the footage, although some Republicans — such as Florida Sen. Marco Rubio — looked down and flipped through reading material for much of the video presentation.

Sen. Kirsten Gillibrand, D-N.Y., held her right hand on her forehead, her elbow on desk, and seemed to sink lower and lower. A young staffer sitting in the back seemed to be breathing heavily. Sen. Shelley Moore Capito, R-W.Va., wiped something from her eyes.

“That may be the longest time I’ve sat down and just watched straight footage of what was truly a horrendous day,” Sen. Roy Blunt, R-Mo., told HuffPost’s Igor Bobic, who captured the now famous video of Capitol Police officer Eugene Goodman leading rioters away from the Senate chamber on Jan. 6.

The last frame of the video was Trump’s tweet at 6:01 p.m. on Jan. 6, as police were still regaining control of the Capitol complex and some lawmakers were still hiding in their offices. “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away,” Trump wrote. “Remember this day forever!” Twitter suspended Trump’s account after this message.

Raskin told the Senate that Trump “was impeached … for doing that.”

“If that’s not an impeachable offense, then there is no such thing,” he said.

After Neguse offered a precise and efficient argument on some of the finer legal points, and Cicilline spoke, Raskin offered a personal plea to the senators. He related how on Jan. 6 he was still reeling from the loss of his 25-year-old son, Tommy, to suicide a week before. The family had buried Tommy one day prior.

Rep. Joe Neguse. (via Reuters Video)
Rep. Joe Neguse. (via Reuters Video)

Kind words from colleagues that day, before the riot, gave Raskin “a sense of being lifted up from the agony.” But after the Capitol was breached, Raskin feared for his 24-year old-daughter Tabitha, and his son-in-law Hank Kronick, who had accompanied him to the Capitol that day. Raskin did not have time to reach them, and so Tabitha and Hank were forced to hide in a House office inside the Capitol, under a table in the dark, while Raskin’s chief of staff, Julie Tagen, stood guard holding a fire iron.

“They thought they were going to die,” Raskin said. He began to shed tears as he recounted his daughter’s words to him after he was finally reunited that evening. “Dad, I don’t want to come back to the Capitol,” she said.

“Senators, this cannot be our future,” Raskin said.

After he finished speaking, there was a short break, and numerous senators came forward to offer Raskin their thanks and condolences, including Sen. Tom Cotton, R-Ark., who shook Raskin’s hand and grasped his right arm.

In contrast, Trump’s attorneys were blasted by several Republican senators for the quality of their presentation.

Castor, in particular, came in for scathing criticism from Republican senators for an hour-long speech that went many different directions without accomplishing much. Castor “just rambled on and on and on and didn’t really address the constitutional argument,” Sen. John Cornyn, R-Texas, said. “That was not one of the finest I’ve seen.”

“I was perplexed by the first attorney, who did not seem to make any arguments at all,” Sen. Susan Collins, R-Maine, said.

As Castor spoke, several Republican senators had the appearance of someone standing outside on a sunny day, looking into the shadows of a darkened room: their brows were furrowed, their eyes squinting. At one point, Castor meandered into a digression about Sen. Ben Sasse, R-Neb., that made little sense to anyone.

Bruce Castor. (via Reuters Video)
Bruce Castor. (via Reuters Video)

Cassidy, the lone Republican to switch his vote from Jan. 26, said he based his vote in large part on the stark contrast between the arguments by the two sides.

“If anyone disagrees with my vote and would like an explanation I ask them to listen to the arguments presented by the House managers and former President Trump’s lawyers. The House managers had much stronger constitutional arguments. The president’s team did not,” Cassidy said.

And while Schoen came across as a far more able litigant, with more command of the issues and a less confusing speaking style, he too veered from legal arguments and assailed the motives of the House managers in biting and personal terms.

“They don’t want unity,” he said, at times shouting. “They are willing to sacrifice our national character to advance their hatred and their fear.”

Raskin ended the day by noting that the Jan. 13 House vote to impeach Trump was “the most bipartisan impeachment in history” and by telling the Senate that he and the managers did not need more time to make their case.

The trial is expected to be finished no later than early next week.

Cover thumbnail photos via Reuters Video

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