Divided chamber finds process constitutional during emotional day as Democrats recount Capitol attack
After nearly four hours of debate in the same chamber that was invaded by pro-Trump rioters on 6 January, the senators, now seated as jurors and sworn to deliver “impartial justice”, voted 56 to 44 on the question of whether there was a constitutional basis for putting an impeached former president on trial. Six Republicans joined all Democrats in an early victory for the prosecution that undermined one of the central pillars of Trump’s defense.
Trump is the first president to face an impeachment trial after leaving office, and the only president in American history to be impeached twice. But the assault on the Capitol, an event that one House impeachment manager called the “the framers’ worst nightmare come to life”, shook the nation and the world as loyalists to the former president stormed the seat of the American government in an effort to prevent Congress from formalizing Joe Biden’s victory. Though they ultimately failed, the domestic attack left five people dead and America’s commitment to a peaceful transfer of power tarnished.
Republicans’ near-uniform opposition to holding a trial strongly suggested that there were not enough votes in the chamber to convict the de-platformed, one-term president even after he brazenly sought to overturn his election defeat with baseless claims of a stolen election. At least 17 Republicans would have to join all Democrats to find Trump guilty of high crimes and misdemeanors. A conviction would allow the Senate to disqualify him from ever again holding office.
Last month, only five Republicans joined Democrats to defeat an attempt to dismiss the impeachment charge as unconstitutional. Senator Bill Cassidy, a Republican of Louisiana, was the only member to switch his vote, leaving open the possibility that some lawmakers could yet change their minds.
Republicans have largely coalesced around the argument that the Senate did not have the authority to hold the trial because impeachment was intended to lead to a president’s removal from office, a position that has allowed them to avoid weighing in on whether Trump’s conduct amounted to an impeachable offense. But that view has been challenged by constitutional scholars, including the leading conservative lawyer Charles Cooper, who argued that the claims were unfounded.
Citing these scholars, writings by the nation’s framers and historical precedents, the House impeachment managers warned that allowing Trump to escape punishment would establish a “January exception” for a president to betray the oath of office in their last month.
House Democrats opened the trial with a searingvideo of the Capitol siege that threatened the lives of the former vice-president, Mike Pence, members of Congress, and everyone working in the building that day. The video pulled from the extensive visual recordings from rioters, reporters and witnesses to create a reel juxtaposing the president’s incendiary speech to supporters at a rally near the White House with scenes of mayhem and violence on Capitol Hill. There, Trump encouraged his supporters to “fight like hell” and march to the Capitol to make their voices heard before lawmakers certified Biden’s victory.
The cries and chants from the video echoed through the chamber, where just over a month ago rioters sat in the dais and swung from the balcony. It concluded with a tweet from Trump, sent only moments after the building was secured on 6 January: “Remember this day forever!”
“You ask what a high crime and misdemeanor is under our constitution? That’s a high crime and misdemeanor,” the congressman Jamie Raskin of Maryland, the leader of the House Democrats prosecuting the case, told the silent chamber, after playing the video. “If that’s not an impeachable offense, then there is no such thing.”
In their rebuttal, Trump’s defense team argued that the impeachment trial was not only unconstitutional but would “open up new and bigger wounds across the nation”.
Accusing Democrats of abuse of power, Trump’s lawyer David Schoen said the party was fueled by their “hatred” of Trump and their determination to see him impeached. He played a video compilation of Democratic politicians calling for Trump’s impeachment as early as 2017.
“This trial will tear this country apart, perhaps like we have only seen once before in American history,” he said, warning: “If these proceedings go forward, everyone will look bad.”
In a meandering defense that reportedly left Trump enraged, his lead lawyer Bruce Castor denounced the Capitol assault as “repugnant”, praised the senators as “patriots” and concluded by suggesting that if the former president had committed a crime, the punishment should be criminal prosecution, not impeachment.
“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.”
The trial will resume on Wednesday with the substantive arguments over the sole charge of “incitement of insurrection”. Each side has 16 hours to present its case, and the trial is expected to stretch into the holiday weekend. Prosecutors have promised to present new evidence to prove that Trump was “singularly and directly responsible” for the Capitol attack.
Trump’s lawyers have argued that the president’s claims of voter fraud and his fiery rhetoric to the crowd on 6 January were not only protected under the first amendment, but similar to language used by Democrats to rally their own supporters. In pre-trial briefings, they emphasized his instruction that the crowd march “peacefully” to the Capitol.
Trump, who left Washington for his Mar-a-Lago resort on the day of Biden’s inauguration, has refused a request by Democrats to testify voluntarily at his trial. It appears unlikely that the House managers will call witnesses, appealing instead to the collective memories of the senators who lived through the harrowing afternoon.