Senate Puts Trump on Trial in Historic Second Impeachment Case for Inciting Capitol Insurrection

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The historic second impeachment trial of former President Donald Trump marks the first time a president will face impeachment after leaving office, and many Republicans claim the trial of a former president is unconstitutional. But most legal experts disagree. “Of course the Senate can conduct this trial,” says Alan Hirsch, author and chair of the Justice and Law Studies program at Williams College. He says doing otherwise would give presidents a “get-out-of-impeachment-free card” at the end of their terms. Since the U.S. was founded, the Senate has conducted just three other presidential impeachment trials: Andrew Johnson in 1868, Bill Clinton in 1999 and Donald Trump in 2020. The House’s second impeachment of Trump came a week before his term ended for inciting the deadly insurrection in the U.S. Capitol on January 6, which was aimed at stopping lawmakers from counting the Electoral College votes.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Well, history is being made today. The second impeachment trial of a U.S. president, of former President Donald Trump, begins today in the Senate. Since the founding of the United States, the Senate has conducted just three other presidential impeachment trials: Andrew Johnson in 1868, Bill Clinton in 1999 and Donald Trump last year, in 2020. Trump is the first president to face an impeachment trial after leaving office. The House impeached Trump a week before his term ended for inciting the deadly insurrection on the U.S. Capitol on January 6th, which was aimed at stopping lawmakers from certifying the Electoral College votes.

Trump’s defense team claims it’s unconstitutional to try a former president, but the argument has been rejected by many constitutional law experts, including the prominent conservative lawyer Charles Cooper. In a piece in The Wall Street Journal, Cooper wrote, “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders,” unquote. Trump’s defense team also claims the former president did not, quote, “direct anyone to commit unlawful actions.”

Well, on Monday, Senate Majority Leader Chuck Schumer defended the impeachment process.

MAJORITY LEADER CHUCK SCHUMER: A president cannot simply resign to avoid accountability for an impeachable offense, nor can they escape judgment by waiting until their final few weeks in office to betray our country. The impeachment powers assigned to the Congress by the Constitution cannot be defeated by a president who decides to run away or trashes our democracy on the way out the door. … Ultimately, senators will decide on the one true question at stake in this trial: Is Donald Trump guilty of inciting a violent mob against the United States, a mob whose purpose was to interfere with the constitutional process of counting electoral votes and ensuring a peaceful transfer of power?

AMY GOODMAN: The Senate impeachment trial will begin today at 1 p.m. Eastern. We’ll be live-streaming the trial, gavel to gavel, at democracynow.org for the next week or as long as it takes. Today’s session will focus on the constitutionality on the Senate trying a former president. Then, beginning Wednesday, House impeachment managers and Trump’s defense lawyers will each be given 16 hours over two days to make their arguments. The trial could end early next week. It remains unclear if witnesses will be called.

We’re joined now by Alan Hirsch, chair of the Justice and Law Studies program at Williams College in Massachusetts. He’s also author of several books, including A Short History of Presidential Election Crises (And How to Prevent the Next One) and Impeaching the President: Past, Present, and Future.

Professor Hirsch, it’s great to have you with us. What stands out about this historic impeachment trial that begins today?

ALAN HIRSCH: Well, Amy, as you said, today is going to be devoted to the question of whether the Senate even has the authority to conduct the trial, the Republicans claiming — Trump’s attorneys claiming that the Senate lacks jurisdiction. So, if 51 senators say that the Senate has jurisdiction, which is almost sure to happen, the trial will continue. It will reach the merits, starting tomorrow. However, unless a two-thirds majority, 67, find that they have jurisdiction, there is no chance of Trump being convicted. So we have a situation where if 35 Republican senators or more claim that the Senate lacks jurisdiction, the trial will go on, but it will be Alice in Wonderland — verdict first, trial later. So, it’s really crucial, what happens in the next day.

JUAN GONZÁLEZ: Well, Professor Hirsch, what about this issue of whether the Senate can legally try a president after leaving office? What’s your reading of the law?

ALAN HIRSCH: I am with the overwhelming majority of scholars who believe that, of course, the Senate can conduct this trial, that, otherwise, you would be giving a president a get-out-of-impeachment-free card. At the end of his administration, he could do whatever he wanted, including the kinds of things President Trump did, and then simply resign the office or run out the clock; the Senate would have no authority to do anything; and he could run for office again. That just seems completely contrary to public policy and common sense.

And the other thing I would emphasize, people on the other side say, “How can you impeach a president who isn’t even in office?” The truth is, he was impeached when he was in office. So now the only question is whether you can conduct a trial of a president who has been impeached while he was in office. I think you might be able to make a colorable argument that when the president is out of office, he’s not subject to impeachment. I don’t think it’s a strong argument, but one can imagine it. But the argument that a president who has already been impeached can leave, through resignation or his term ending, and then not be subject to these legal processes and then be free to run again really makes very little sense to me.

JUAN GONZÁLEZ: And what’s your sense of the kind of evidence that the House managers will present during the trial?

ALAN HIRSCH: So, good question. And —

JUAN GONZÁLEZ: Will there be actually witnesses, from what you can tell?

ALAN HIRSCH: Right. So, a couple of things. Amy mentioned that there have been three impeachment trials. The only one in which there were live witnesses were the Andrew Johnson trial. Now, for it to be a real fact-finding body, you really do need witnesses.

But having said that, if you just read the House managers’ brief — and I recommend that your listeners and viewers do, because it really is a terrific, thorough piece of work — you will see that the Trump team is going to have an extraordinarily difficult time defending particularly with respect to the issue of how he conducted himself once the Capitol had been stormed.

His lawyers will be able to make a semi-reasonable argument that nothing he said explicitly incited the insurrection, that he didn’t intend to incite the insurrection. These arguments are, again, at least colorable. But how do they defend him for sitting back after the Capitol had been stormed, when he is being urged by multiple people to take action, and allegedly he’s watching television and seemingly pleased with what is going on? It really seems to me that it’s going to be a case of trying to defend the indefensible.

But having said that, neither I, your listeners, nor the Senate should take as gospel what is in the House managers’ brief. This is why you have a trial. And in order to establish what Trump was doing, that’s not going to be on tape. We will see his speech on January 6th. We will see people storming the Capitol. We will even see some of them saying they are following Trump’s wishes. But we won’t see Trump doing nothing after the Capitol has been stormed. We won’t see conversations in which he says, “Oh, let’s let it go for a while. I’m kind of pleased with this.” Witnesses could establish that that’s what happened. And that’s where I believe witnesses would be most potent, although the last I’ve heard, Senator Schumer doesn’t want to call witnesses. I hope he reconsiders that view.

AMY GOODMAN: I mean, Professor Hirsch, this is the key point. I’m sure many people who deeply care about civil liberties and free speech are concerned that if someone says something and then someone else goes and commits a violent act and says it was because of what this guy said, that that is — they’re concerned about making those links. But the point that he said in his speech, “I’m going to be marching with you, going with you” — of course, he then scurried back to the White House in the safety in the Oval Office, and he watched what happened. Are we going to learn about these conversations, Republican after Republican calling him, that — calls he would not take, begging him to say something? But he didn’t just not say anything; he did issue a statement. Despite the fact that his defense lawyers now are going to say he was horrified by the violence that was committed, in fact, he did make a statement at the time we saw the desecration of the Capitol. He called them “patriots” and said, “I love you.”

ALAN HIRSCH: I am in heated agreement. And as I said, I think that is the most vulnerable aspect of his behavior. I would also add, you mentioned that there will be arguments that there’s not a direct enough link between his words and the mob’s actions. Even if that were true — and that’s debatable — this is not a criminal trial. No one has to prove beyond reasonable doubt that he had the state of mind to incite the mob or anything like that. This is an impeachment. This is a judgment about whether this president is unfit for office based on having committed improper offenses against society itself, as Alexander Hamilton put it in The Federalist Papers. And I personally think it is very, very difficult to defend the president’s behavior as not rising to the level of an impeachable offense.

JUAN GONZÁLEZ: And, Professor Hirsch, what about the impact of the trial on the Trump base and on his continued hold over the Republican Party? Because, clearly, a lot of these Republicans who may be voting not to convict him possibly are dealing with the reality that they’re going to have to face his influence on the party in upcoming elections.

ALAN HIRSCH: Well, Juan, I think that’s on the nose, even though the political aspects of it are beyond my bailiwick. But what I will say is the trial has a two-part function. One is to see if this person can be disqualified from office based on his manifest unfitness stemming from his attack on democracy. But the other is the possible effect on the public. The public will watch this trial. And if it does chip away at the support Trump has from its base, it may effectively disqualify him from future office even if it doesn’t formally do so.

AMY GOODMAN: We’re going to leave it there for now, but, of course, we’re continuing to cover this, and Democracy Now! will be running the impeachment trial of Donald Trump, gavel to gavel, at democracynow.org, beginning at 1:00 today. Alan Hirsch, we want to thank you for being with us, chair of the Justice and Law Studies program at Williams College, author of several books, including A Short History of Presidential Election Crises (And How to Prevent the Next One) and Impeaching the President: Past, Present, and Future.

This is Democracy Now! When we come back, “Where’s the Vaccine for Ableism?” We’ll speak to two disability rights activists about growing calls to prioritize giving COVID vaccines to people with physical and mental disabilities. Stay with us.

[break]

AMY GOODMAN: The musical duo Amadou & Mariam, performing “Femmes du Monde,” “Women of the World,” here in our Democracy Now! studios. They met at a school for the blind in Mali.

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