Second impeachment trial of Donald Trump

Wikisource has original text related to this article: Article of Impeachment against Donald J. Trump (2021)

On January 11, 2021, U.S. Representatives David Cicilline, along with Jamie Raskin and Ted Lieu, introduced an article of impeachment against Trump, charging Trump with "incitement of insurrection" in urging his supporters to march on the Capitol building. The article stated that Trump had committed high crimes and misdemeanors by making several statements that "encouraged–and foreseeably resulted in–lawless action" that interfered with Congress' constitutional duty to certify the election and stated that Trump "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government," doing so in a way that rendered him "a threat to national security, democracy, and the Constitution" if he were allowed to complete his term.[15][16] A total of 218 of the 222 House Democrats co-sponsored the article of impeachment, assuring its passage.[17]

The House passed the article of impeachment on January 13, 2021, by a 232–197 vote. All 222 Democrats voted to impeach, joined by 10 Republicans (including House Republican Conference chairwoman Liz Cheney). Four Republicans did not vote, and the other 197 Republicans voted no.[18][19]

In the days following Trump's second impeachment, Senate Majority Leader Mitch McConnell (Republican of Kentucky) argued that, because the Senate was in pro forma sessions until January 19, it could not take on any business without the unanimous consent of members. According to the Senate rules for impeachment, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. Had the articles of impeachment been immediately transmitted to the Senate, Trump's trial thus would have begun on Inauguration Day, after Biden's inauguration.[20][21]

Senate Minority Leader Chuck Schumer (Democrat of New York) called on McConnell to bring the Senate back into session immediately after the House transmits the article of impeachment, and also to advance the confirmation process for Biden's Cabinet nominees so that the incoming administration's team is in place on day one.[22] Some, including House Majority Whip Jim Clyburn (Democrat of South Carolina), initially suggested that the House might transmit the article of impeachment to the Senate at a later date (possibly after Biden's first 100 days as president), giving time for the Senate to consider Biden's legislative program and to confirm Biden's cabinet nominees.[21][23][24] However, House Democrats have opposed a delay, stating that Trump remains a danger while he is in office, and House Majority Leader Steny Hoyer (Democrat of Maryland) said on January 14 that the article of impeachment would be transmitted to the Senate without delay.[23]

After the House impeached Trump, President-elect Biden stated, "I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation."[23] Biden said his priority is enacting a new stimulus bill and rebuilding the economy.[25] He discussed with McConnell the possibility of "bifurcating" the Senate calendar, allowing the trial to proceed while also allowing other business (such as nominations and legislation) to move forward without delay.[23] Under this plan, the Senate could split its days between the trial and other business, rather than having all its time consumed by the trial.[25][26] Former Senate Parliamentarian Alan Frumin said that Senate rules would permit such a course.[23] McConnell told Biden that he would consult with the Senate parliamentarian on such a parallel-track system.[27] Schumer, who would replace McConnell as Senate majority leader, said that a Senate trial could begin immediately.[23]

Law professor Ronald Krotoszynski has written that the Senate could speed up impeachment proceedings (completing the process in a few days, rather than a few weeks) through a process akin to civil summary judgment. This would be permissible under the Constitution, which specifies that the Senate must "try" articles of impeachment and vote to convict (remove) by a two-thirds majority, but allows the Senate to set its own trial rules or procedures on the Senate, as reaffirmed by the U.S. Supreme Court in Nixon v. United States (1993).[28]

On January 22, 2021, it was announced that House Speaker Nancy Pelosi would transfer the articles of impeachment to the Senate on January 25 with the Senate trial expected to be held during the week of February 8.[1]

A Congressional Research Service report concluded "that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried."[29] Ahead of the trial, 150 legal scholars from across the political spectrum published a letter affirming "that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents."[30] Law professors Laurence H. Tribe and Stephen I. Vladeck argue that because removal from office is only one of the two possible consequences of a conviction (the other being disqualification for holding public office), the purpose of the trial is not nullified if the impeached person no longer holds public office.[31][32] Gregg Nunziata, a former Republican lawyer for the Senate Judiciary Committee, similarly noted that because impeachment power includes the power to disqualify the person from federal office for life, allowing officeholders to evade this by simply resigning would render "this important punishment ... a nullity."[33] Cardozo School of Law constitutional law professor Kate Shaw argues that "Drafting history, impeachment practice, and basic constitutional design all point clearly in favor of the constitutionality of trying an ex-president."[33] Legal scholar Brian C. Kalt, who has published research about late impeachments, states that "In multiple cases, the House and Senate have proceeded as though they can impeach and try people who have already left office, and in one case the Senate took a specific vote to that effect."[33]

There is precedent for impeaching and trying a federal official who already left office ("late impeachment").[33] In 1797, the House impeached Senator William Blount for conspiracy. The Senate tried him, even though the Senate had already expelled Blount.[33] Secretary of War William W. Belknap resigned hours before the House of Representatives voted for his impeachment with charges relating to his role in the 1876 trader post scandal, and the Senate proceeded to hold the trial, ruling by a vote of 37–29 that it did have jurisdiction after a challenge by Belknap's attorneys.[4][5][34]

Most Republicans in the Senate have argued that the Senate lacks the constitutional authority to conduct an impeachment trial of a former president.[29] This argument has also been made by former federal appellate judge J. Michael Luttig,[35] as well as Trump's former lawyer at his impeachment trial, Harvard Law School professor emeritus Alan Dershowitz,[36] and law professor Jonathan Turley, who testified in Trump's favor at his first impeachment trial.[29]

Senator Patrick Leahy signing the summons for second impeachment of Donald Trump.

Patrick Leahy, president pro tempore of the Senate, is presiding over the trial,[37][38] in place of Vice President Kamala Harris, the ex officio president of the Senate, who may nonetheless involve herself if any tie-breaking votes need to be cast.[39] Senate Majority Leader Chuck Schumer said that Chief Justice John Roberts declined to preside over the trial.[40]

Prior to the selection of Leahy as presiding officer, there was debate as to who constitutionally should hold that role. Article I, Section 3, Clause 6 of the U.S. Constitution states that the Senate has the sole power to try impeachments and that "When the President of the United States is tried the Chief Justice shall preside."[41][42] Various commentators questioned whether the chief justice must preside over the trial of former presidents.[41][43] Princeton University political scientist Keith Whittington noted that the issue is "unsettled, completely without precedent, and unspecific in existing Senate rules and precedents."[43] The University of North Carolina law professor Michael Gerhardt, an expert on impeachment, stated that he believed that, if the impeachment trial began after Trump leaves office, Harris, as opposed to Roberts, would preside, as Trump would no longer be president.[41] Conversely, University of Texas law professor Steve Vladeck said that "the question should be whether the impeached officer was President at the time of impeachment" and thus Roberts should preside over the trial of Trump even after he leaves office.[41] Vladeck pointed out that "if Trump resigned (or his term ended) mid-trial, it would be more than a little odd for the Chief Justice to give way to the Vice President.[43] Georgia State University law professor Neil Kinkopf's view is that "a trial of a President (even a former President) is a momentous event and having the Chief Justice preside seems more congruent with, or more fitting of, the occasion."[43]

On January 12, the day before the House debated the article of impeachment, Pelosi named nine Democratic representatives to be managers in a Senate conviction trial: Jamie Raskin (lead manager), Diana DeGette, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Joe Neguse, Madeleine Dean, and Stacey Plaskett.[44] By then, 218 members of the 222-member House Democratic caucus had signed on as sponsors of the article, assuring its passage.

The managers were chosen for their expertise in constitutional law, civil rights, and criminal justice. Raskin is a former constitutional law professor at American University. Lieu is a former military prosecutor in the United States Air Force. Cicilline is a former public defender. Swalwell was a former prosecutor in California. DeGette is a former civil rights attorney. Castro, Neguse, Dean and Plaskett are all lawyers in private practice.[45]

House managers
Lead manager Jamie Raskin (Maryland)	Diana DeGette (Colorado)	David Cicilline (Rhode Island)	Joaquin Castro (Texas)	Eric Swalwell (California)
Ted Lieu (California)	Joe Neguse (Colorado)	Madeleine Dean (Pennsylvania)	Stacey Plaskett (U.S. Virgin Islands)

It had been unclear who would be on his legal team, as numerous prominent law firms have refused to represent him. The Lincoln Project has publicly pressed law firms not to do so.[36] Law & Crime reported that "essentially all respectable law firms and attorneys" were distancing themselves from him.[46]

Rudy Giuliani, as Trump's personal lawyer, was left out of early conversations about the upcoming defense, and Trump ordered his aides to stop paying Giuliani.[47][48][49] On January 18, one day after meeting with Trump, Giuliani said he would not represent Trump at the Senate impeachment trial, stating: "Because I gave an earlier speech [at the rally], I am a witness and therefore unable to participate in court or in the Senate chamber."[50] Similarly, John Eastman, who joined Giuliani on stage at the January 6 rally, was initially considered for a role on Trump's defense team, but he withdrew because his role at the rally made him a witness.[51][52] Pat Cipollone, Alan Dershowitz, and Jay Sekulow, who, as Trump's White House Counsel and personal lawyers, respectively, helped lead Trump's defense effort during his first impeachment over Ukraine, will not represent Trump at this second impeachment trial.[53] Other lawyers who defended Trump during his first impeachment trial, including former Florida Attorney General Pam Bondi, Eric Herschmann, Patrick Philbin and Marc Kasowitz, are not interested in joining the defense for the second impeachment trial. Some of them have privately expressed their belief that Trump's actions were indefensible.[36]

Trump and congressional Republicans considered designating two of Trump's most vociferous defenders in Congress—Jim Jordan and Elise Stefanik—to represent him at his impeachment trial. Both voted to reject electoral votes in favor of Biden, even after the president's supporters stormed the Capitol on January 6 during the counting of the electoral votes. Neither is an attorney.[46][lower-alpha 1]

In late January, Trump formed a defense team of five attorneys to be led by Butch Bowers, a South Carolina-based lawyer who helped former South Carolina governor Mark Sanford fight off being removed from office and who also helped former South Carolina Governor Nikki Haley during an ethics investigation.[53][54] Senator Lindsey Graham of South Carolina had arranged Trump's hiring of Bowers.[55] Subsequently, four more lawyers were named to the defense team under Bowers: Deborah Barbier, a Columbia, South Carolina, criminal defense lawyer and former federal prosecutor who has represented high-profile, controversial clients; former acting U.S. Attorney General Johnny Gasser; criminal defense attorney Greg Harris; and Josh Howard of North Carolina.[56][57][58][59] However, the defense attorneys all withdrew on January 30, one week before the trial.[59][60][61] The departures occurred after Trump clashed with his attorneys on strategy (Trump wanted to focus on his false claims that the election was "stolen" from him, in contrast to the lawyers, who insisted on focusing on the legality of convicting a former president),[59][60] and fees (Trump was unhappy with the fees and expenses estimated by the lawyers).[62] None of the lawyers had been paid any advance fees nor had they signed letters of intent.[60]

On February 1, after the collapse of his earlier legal team, Trump announced that David Schoen and Bruce Castor would be his new defense lawyers.[63][64]

Nancy Pelosi signing the article of impeachment

Article I, Section 3, Clause 6 of the U.S. Constitution states that "The Senate shall have the sole Power to try all Impeachments." Per the Senate's impeachment rules adopted in 1986, the submission of the articles to the Senate initiated the trial.[13] Speaker Pelosi signed the article of impeachment on January 13, 2021.[75] The article was formally transmitted to the Senate on January 25, 2021.[76] On January 26, the House impeachment managers, accompanied by the clerk of the House and the acting House sergeant at arms, conducted the ceremonial procession from the House to the Senate (across the National Statuary Hall and the Capitol rotunda) to formally deliver the article of impeachment, triggering the trial.[77][78] Raskin, the lead House impeachment manager, read the article to the Senate.[77]

Senate President pro tempore emeritus Chuck Grassley (Republican of Iowa), swore in the chamber's presiding officer, Senate President pro tempore Patrick Leahy (Democrat of Vermont),[79] who then swore in all senators who will act as jurors. Each senator then signed the oath book. Each is required to take the following oath or make the affirmation:[79][80][81][82]

Oath: I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, former President of the United States, now pending, I will do impartial justice according to the Constitution and laws: So help me God.

Affirmation: I affirm that in all things appertaining to the trial of the impeachment of Donald John Trump, former President of the United States, now pending, I will do impartial justice according to the Constitution and laws.

The acting Senate sergeant-at-arms, Jennifer Hemmingway, then read aloud the following proclamation to mark the beginning of the proceedings:

Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, former President of the United States.

The summons to Trump was issued the same day.[79]

Republican Senator Rand Paul of Kentucky forced a vote on January 26 on a point of order to dismiss the impeachment charge, claiming that it is unconstitutional to try a past president. The objection was defeated on a 55–45 vote, with all Democrats and five Republicans (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania) voting to set aside the objection.[83][29] The vote was seen as a "test vote" and was viewed as a strong indication that the Senate would not reach the two-thirds majority required to convict Trump.[29][84]

Trial Memorandum of the House of Representatives

Answer of President Trump to the Trial Memorandum of the House of Representatives

Under an agreement between Schumer and McConnell, the pre-trial briefing schedule was set.[79]

The House of Representatives, through the nine Democratic impeachment managers, filed an 80-page pretrial brief on February 2. The detailed brief stated that Trump was "singularly responsible" for the violent attack on the Capitol on January 6, citing his preceding campaign to undermine democracy and overthrow the election, and argued that acquitting Trump and failing to disqualify him from future office would gravely harm the nation, stating: "President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A president who violently attacks the democratic process has no right to participate in it."[85] The impeachment managers argued that the expiration of Trump's term, and his new status as a private citizen, did not present a bar to Senate trial and conviction, writing: "There is no 'January exception' to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.[85] and that it was "unthinkable" that the Framers of the Constitution would have left the country "virtually defenseless against a president's treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck."[86] The House brief stated that "if provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be."[87]

Trump's lawyers filed a 14-page response to the article of impeachment later the same day.[87] Trump's lawyers did not explicitly embrace Trump's false claims of a "rigged" election,[87] but nevertheless echoed them, asserting that there was "Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president's statements were accurate or not, and he therefore denies they were false."[86] Trump's lawyers also argued that the impeachment proceeding is legally "void" because Trump is no longer president.[88][89][87] The brief asserted that prior to the January 6 riots, Trump had "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect."[87] The House had predicted that Trump would use the First Amendment for his defense, which they countered in their brief that the First Amendment was not applicable to an impeachment trial, writing: "The First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office."[88] Quoting the standard established in Brandenburg v. Ohio (1969), a landmark decision of the U.S. Supreme Court interpreting the First Amendment,[90] the House added that "speech is not protected where it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[88] Nearly 150 leading First Amendment lawyers and constitutional scholars from across the political spectrum found Trump's First Amendment assertion "legally frivolous" and not a viable defense against conviction, according to The New York Times.[91]

Trump's pre-trial brief is due on February 8 and the House's pre-trial rebuttal is due the next day (February 9).[79]

Request of Jamie Raskin on behalf of the House for the testimony of President Trump

In a letter to Trump attorneys on February 4, lead impeachment manager Jamie Raskin invited Trump to testify (and be subject to cross-examination) before or during the impeachment trial; the House impeachment managers argued that his testimony was needed after he disputed the House's allegations that he incited the insurrection at the Capitol.[92] The letter stated that Trump's refusal to testify would support "a strong adverse inference" against Trump.[92] The House's letter noted that there was no barrier to a former president giving testimony (and noted that Presidents Gerald Ford and Bill Clinton had testified in office, and the Supreme Court held in Trump v. Vance (2020) that Trump was not immune from legal process while serving as president).[93]

Trump's lawyers Castor and Schoen responded to Raskin the same day in a terse letter declining the invitation.[92] In their response, they called the House's request for Trump's testimony "a public relations stunt"; rejected the implication of adverse inference for refusing the testify; said that the House "cannot prove" its allegations; called the impeachment trial a "unconstitutional proceeding"; and stated that it is too serious "to try and play these games".[1][94][95]

The House impeachment managers signaled that they would not subpoena Trump's testimony, stating that there is ample other evidence (including video evidence) that supports his guilt.[96] Raskin stated that Trump's "immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt."[96]

In preparation for the trial, House Democrats built a detailed case against Trump, emphasizing what Trump knew in advance of the attack on the Capitol on January 6 and the effect of Trump's words and actions on his rioting supporters, with the goal of showing that Trump "summoned the mob, assembled the mob, and lit the flame of this attack."[98] House impeachment managers and the staff, aided by the law firm Debevoise & Plimpton, have compiled audio and video footage of Trump's rally and the ensuing attack on the Capitol, as well as details about the injuries sustained by police.[98]

Trump has announced that he won't testify for the impeachment trial.[99]