The Senate on Tuesday affirmed the constitutionality of Donald Trump’s second impeachment trial over the objections of his legal team, which contended that moving forward with the proceedings would be unconstitutional.
Six Republicans joined every Democrat in voting, 56-44, to sustain the trial. Sen. Bill Cassidy (R-La.), who voted to dismiss the trial last month, reversed his stance and joined GOP Sens. Susan Collins (Maine), Mitt Romney (Utah), Ben Sasse (Neb.), Pat Toomey (Pa.) and Lisa Murkowski (Alaska) in breaking with the party to move forward with the trial.
A number of Republicans were critical of the Trump team’s arguments. Still, the result bodes poorly for Trump’s ultimate conviction, which will need a two-thirds vote in the Senate.
Bruce Castor, Trump’s lead attorney, said after the proceedings that he was unconcerned about criticism of his presentation or the fact that an additional Republican voted to go ahead with the trial.
“I don’t think anything of it,” Castor said. “If it leaks down to 34, then I’ll start to worry.”
The trial opened shortly after noon with a graphic and emotional video shown by House impeachment managers of the assault on the U.S. Capitol on Jan. 6 that resulted in the deaths of five people, including a Capitol Police officer. The 13-minute video montage was spliced with statements from Trump before and during the riot urging his supporters to “fight” to overturn the certification of the 2020 election in Congress.
House impeachment managers then argued on behalf of the constitutionality of holding an impeachment trial for a former president. They pointed to previous Senate trials of former government officials and warned that not holding Trump accountable in this case would set a precedent for future presidents to commit high crimes and misdemeanors at the very end of their term and escape consequences.
“You don’t need to be a constitutional scholar to know the argument President Trump asks you to adopt is not just wrong, it’s dangerous,” Rep. Joe Neguse (D-Colo.) said, adding: “There is no January exception to the impeachment power, that presidents can’t commit grave offenses in their final days and escape any congressional response.”
Trump lawyer David Schoen, meanwhile, argued that “only a sitting president may be impeached, convicted and removed.”
“Presidents are impeachable because presidents are removable. Former presidents are not,” Schoen added.
But the House impeached Trump while he was still president. Moreover, the Senate in the late 19th century held a trial for William W. Belknap, a corrupt Secretary of War, after he had already resigned. Trump’s lawyers did not address those two points in their opening arguments on Tuesday.
Scores of constitutional scholars have sided with the House managers on the question of trying a former president, including conservative lawyer Chuck Cooper.
Some Republican senators were critical of Castor’s presentation in particular, even if most of them ultimately voted to dismiss the trial.
Sen. John Cornyn of Texas said the Trump attorney “just rambled on and on and on and didn’t really address the constitutional argument,” adding that his speech was “not one of the finest” he had seen.
Murkowski, one of the six GOP senators who voted to sustain the trial, said she couldn’t figure out where Castor was going. “I don’t think he helped with us better understanding where he was coming from on the constitutionality of this.”
Collins also said she was “perplexed” by the presentation.
“It did not seem to make any arguments at all, which was an unusual approach to take,” she added.
But Cassidy seemed to be the most disappointed with Trump’s team. He called their presentation “disorganized” and said it was “almost like they were embarrassed” to weigh in on the constitutionality of the trial. The Louisiana Republican said the House managers presented a “compelling” argument and credited them with citing precedent, the Constitution, and legal scholars.
“The other side is doing a terrible job on the issue at hand. As an impartial juror, I’m going to vote for the side that did the good job,” Cassidy said.
Cassidy’s vote did not sit well with the Louisiana Republican Party, which quickly issued a statement saying they were “profoundly disappointed” with the senator.
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