Senate Republicans overwhelmingly back failed challenge to impeachment trial, hinting at Trump acquittal

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Bart Jansen, USA TODAY
·11 min read
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WASHINGTON – Senators who were sworn in Tuesday for the impeachment trial of former President Donald Trump are grappling with what rules will govern the case as they judge whether he incited a riot at the Capitol that forced them to flee to safety while vandals rummaged through their mahogany desks.

As they chart out how the trial will work, Senate Republicans hinted at their final vote.

Sen. Rand Paul, R-Ky., proposed a motion Tuesday to declare the trial unconstitutional because Trump has already left office, but it was rejected on a 55-45 vote. The vote suggested Trump may be acquitted because a two-thirds majority – or at least 67 votes – is needed for conviction, and more than one-third of the chamber voted that the trial is unconstitutional.

"We're excited about it," Paul said after the vote. "It was one of the few times in Washington where a loss is actually a victory."

Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania joined Democrats in killing Paul's motion. Collins said the vote indicated Trump would probably be acquitted.

“I do the math, but I think that it’s extraordinarily unlikely the president will be convicted,” Collins said.

The chamber wrestles with a trial that's unusual in a number of ways. It's the first time a president has been impeached twice. It's the first time a president has been tried after leaving office. And senators are witnesses in addition to jurors – as well as the presiding officer.

Sen. Patrick Leahy of Vermont, the longest-serving member of the Democratic majority, is presiding over the trial rather than Supreme Court Chief Justice John Roberts. Roberts presided over Trump's first trial, but the Constitution calls for the chief justice to preside only over trials of sitting presidents.

The trial is scheduled to resume Feb. 9 after House members who serve as prosecutors – called managers – and Trump's defense team each file written arguments in the case.

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House Democrats were joined by 10 Republicans to impeach Trump Jan. 13, charging that he incited the insurrection by repeatedly claiming falsely that he won the election. Trump argued that his speech outside the White House to supporters Jan. 6 was "appropriate" and that he can't be held responsible for the violence at the Capitol that left five dead.

Millions watched on national television as a mob supporting Trump smashed windows and doors at the Capitol. The intrusion interrupted the House and Senate and their counting of Electoral College votes that confirmed Joe Biden won the presidential election.

The Senate must decide whether to call witnesses or gather other evidence. Potential witnesses include Georgia election officials Trump pressured to overturn the state's results and rioters who entered the building.

Senate Majority Leader Chuck Schumer, D-N.Y., said he was negotiating the details with Minority Leader Mitch McConnell, R-Ky.

"We’ll see what happens," Schumer said. "We don’t know what the requests are on either side yet – of the managers or the defense."

The main evidence is likely to come from Trump: his speech exhorting the mob to march to the Capitol because “if you don’t fight like hell, you’re not going to have a country anymore," his tweets previewing a “wild” time and his inaction as violence unfolded.

“I think the principle witness is going to be Trump himself,” said Jimmy Gurule, a Notre Dame law professor and former federal prosecutor.

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The ultimate verdict will be political. In a Senate with 50 Republicans and 50 lawmakers who caucus with Democrats, a vote of two-thirds of the Senate is required to convict. Lawmakers have called it a vote of conscience.

“He roused the troops. He urged them on to fight like hell,” House Speaker Nancy Pelosi, D-Calif., said of Trump. “He sent them on their way to the Capitol. He called upon lawlessness.”

Republicans called it pointless to impeach Trump after he left office. Though Trump spoke forcefully, the language was no more harsh than regular political speech, they argued.

Sen. Lindsey Graham, R-S.C., said the trial could be conducted in a few days to argue points of law because “the public record is your television screen.”

"I don't think he believes he played a role in the defiling of the Capitol,” Graham said of Trump. “I think the argument that the election was stolen was overdone and got people ginned up, I think he's responsible for that. But people's decision to come here and take over the place, that lies with them.”

House Speaker Nancy Pelosi, D-Calif., says President Trump "called upon lawlessness."
House Speaker Nancy Pelosi, D-Calif., says President Trump "called upon lawlessness."

What arguments are likely?

The heart of the case will be about whether Trump's language incited the violence.

Gurule, the former federal prosecutor, said the nine House members who will serve as prosecutors would probably quote from Trump’s speech in which he implored listeners to confront lawmakers and fight to take back the country.

“That’s not language that would have indicated a peaceful protest,” Gurule said. “He was imploring them to participate in violent conduct."

Gurule said managers would probably note that Trump didn’t say anything publicly for hours to restore calm as violence unfolded.

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“The implication there and the reasonable inference to be drawn is that he condoned it,” Gurule said.

Gurule noted that on Dec. 19, Trump tweeted an invitation to protest election results Jan. 6, which he said “will be wild!”

“Wild is not a term I would use to describe a peaceful protest,” Gurule said. “His words are going to be evidence used against him.”

Republicans argued that Trump’s speech near the White House on Jan. 6 before the crowd headed down Pennsylvania Avenue to lay siege to the Capitol wasn’t enough to incite violence. Lawmakers said phrasing Trump used such as “fight hard” to win back the country is typical of any political speech.

A Supreme Court case – Brandenburg v. Ohio – found the First Amendment protects speech unless it is likely to incite imminent lawless action. The case involved a Ku Klux Klan member giving a speech with racial slurs and indicating “it’s possible that there might have to be some revengeance taken.”

Rep. Greg Steube, R-Fla., cited the Brandenburg decision during the impeachment debate to argue that Trump’s speech was protected because he didn’t “incite or provoke violence when there is a likelihood that such violence will ensue.”

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Democrats quoted different parts of the speech to argue for impeachment. Rep. Jim McGovern, D-Mass., said Trump told the crowd, “We are going to have to fight much harder. You will never take back our country with weakness.”

Some Republican senators have already made their decision on whether Trump should be convicted.

“I do not at this point see an impeachable offense that would rise to the constitutional level that we've looked at,” said Sen. Roger Wicker, R-Miss.

Constitutional challenges

In one of the first disputes about the trial, Republicans contended it is unconstitutional to pursue Trump. His removal is no longer at stake after he left office Jan. 20.

“I'd make that argument,” said Graham, a former military lawyer. “The president looks forward to getting this behind him, believes it’s unconstitutional and damages his presidency, but you know he's going to have his day in court, and that's the way the system works.”

Republicans complained about Leahy presiding, rather than Roberts. Paul called the trial “a sham impeachment” if the chief justice doesn’t preside.

Sen. Josh Hawley, R-Mo., called Trump’s rhetoric “inflammatory” and “irresponsible,” but he called the trial unconstitutional for pursuing a former president without the chief justice presiding.

“I think it's clearly unconstitutional,” Hawley said. “To me, this is an incredibly abusive process.”

Democrats said the trial is necessary to punish Trump, potentially to bar him from future office if he is convicted. Judges and former Secretary of War William Belknap were tried after leaving office, which Democrats said was appropriate because otherwise, officials would resign to avoid punishment.

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Pelosi said avoiding impeachment late in a presidential term would offer a get-out-of-jail-free card for misbehavior.

“Just because he's now gone – thank God – you don't say to a president, ‘Do whatever you want in the last months of your administration,’” Pelosi said.

Sen. Richard Blumenthal, D-Conn., said another important prospect from the trial – if Trump is convicted – is to block him from holding office.

“Whether somebody resigns or runs out the clock, it makes no difference,” Blumenthal said. “They can still be held accountable, and there's nothing in the spirit or the letter of the impeachment provisions in the Constitution that argues against it.”

President Donald Trump boards Marine One on the South Lawn of the White House on Jan. 20  en route to his Mar-a-Lago resort in Florida.
President Donald Trump boards Marine One on the South Lawn of the White House on Jan. 20 en route to his Mar-a-Lago resort in Florida.

Federal courts stay 'far away'

Trump could contest the constitutionality of the trial in the Senate, but Democrats would probably vote to reject his plea.

Trump could then litigate in federal court, but courts are reluctant to get involved in impeachment because the Constitution says, "The Senate shall have the sole Power to try all Impeachments.”

In 1993, the Supreme Court ruled that an impeachment case against a federal judge wasn’t reviewable by the courts because impeachment is a political question. Chief Justice William Rehnquist wrote that opening the courthouse door to reviewing impeachment, even for a president, would “expose the political life of the country to months, or perhaps years, of chaos.”

“This lack of finality would manifest itself most dramatically if the President were impeached,” Rehnquist wrote. “The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated."

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Tara Grove, a University of Alabama law professor and former Justice Department lawyer and federal appellate clerk, said that unless the Supreme Court reverses that decision, courts will shy away from impeachment cases.

“I think the justices would rather stay as far away from this proceeding as humanly possible,” Grove said. “And they have a precedent on point that would strongly suggest that they stay out of it.”

Protesters attack the Capitol on Jan. 6.
Protesters attack the Capitol on Jan. 6.

Senate must decide whether to call witnesses

Lawmakers are familiar with the events that sparked the impeachment after the counting of Electoral College votes was interrupted and lawmakers evacuated.

But senators must decide whether to hear from witnesses to flesh out the case. Republicans who controlled the Senate for Trump’s first trial voted against hearing witnesses then. It’s an open question whether they will be called this time.

“I think that the core of this case is Trump's incendiary and inciting words, the words out of his own mouth,” Blumenthal said. “But his intent to do harm, to cause injury and maybe even death, may come from witnesses who were with him when he was watching the assault on the Capitol, so witnesses can corroborate and powerfully document what we know.”

Sen. Joe Manchin, D-W.Va., said "it would be great" if there were witnesses and more evidence. Manchin said Trump must be allowed to defend himself properly.

“If they try to rush it through, I think it'd be a big mistake,” Manchin said.

Witnesses could include rioters, many of whom were quoted as saying Trump invited them to the Capitol. Rioters chanted, "Hang Mike Pence" in reference to the vice president and "Where's Nancy?" in search of the House speaker. They might fight Senate subpoenas while criminal cases are pending.

Another potential witness is Georgia Secretary of State Brad Raffensperger whom Trump urged in a call to “find 11,780 votes” – one more than he needed to win the state. The call is part of what the article of impeachment charges were repeated attempts by Trump to baselessly question the results of the 2020 election.

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“My guess is that they will play at least excerpts of the taped conversation with the secretary of state in Georgia,” Grove said.

Avoiding witnesses could allow both sides to focus on the legal arguments of whether Trump’s behavior merits conviction for inciting an insurrection. Republicans could shorten the recital of details about the riot. Democrats could return faster to Biden’s agenda, including confirmation of nominees and his $1.9 trillion COVID-19 relief proposal.

“I don’t think it will take as long as the last one,” said Rep. Jamie Raskin, D-Md., the lead House prosecutor and a constitutional scholar.

“It should be a quick trial really, quite frankly,” Graham said.

This article originally appeared on USA TODAY: Donald Trump impeachment trial to begin as Senate mulls witnesses