Why Are So Many Senators So Eager for An Unconstitutional Trial?

             The opening arguments in the Senate impeachment trial for Donald J. Trump. It is the first such trial for a former president and was full of moments intended to inflame emotions. The first decision was a clash over the constitutionality of holding a Senate trial for a private citizen.

The U.S. House of Representatives impeached him on January 13 with the charge of “incitement to insurrection.” Democrats claim that Trump’s speech at a rally near the White House on January 6 incited the rioters to break into the Capitol before he has even finished speaking.

Today the Senators voted 56-44 to proceed with the trial, discounting the unconstitutionality of the trial. Two weeks ago, five Republican Senators voted against a measure introduced by Senator Rand Paul (R-KY) that was similar to the vote today. Those five voters – Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Nebraska) and Pat Toomey (Pennsylvania) – were joined today by Bill Cassidy (Louisiana).

Fred Lucas at The Heritage Foundation took six ideas away from today’s proceedings. The first idea of a “January exception.” House managers, led by Rep. Jamie Raskin (D-MD), played a “lengthy video” of the events that happened on January 6. There were “dramatic footage of rioters breaching and roaming the Capitol” interspersed with parts of Trump’s speech and scenes from the joint session of Congress. 

There were no time stamps in the video for any of the three events. If there had been time stamps, they would have shown that Trump was still speaking near the White House when the riot began more than a mile away at the Capitol. The inflaming video also did not include the words of Trump telling his supporters that they would soon be walking to the Capitol “peacefully and patriotically to make their voices heard.”

            Raskin claimed that the U.S. House of Representatives impeached Trump for inciting the violence with his words. “If that’s not an impeachable offense, then there is no such thing.” He insisted that Trump must be impeached for his violent rhetoric to stop any future President’s from doing something terrible just before they leave office.

            Trump lawyer Bruce Castor reminded the Senators that the Constitution clears states that “a former officeholder can be criminally liable.” He then referred to the reasons for impeaching a President: “A high crime is a felony, and a misdemeanor is a misdemeanor.” Then he added the following:

The words haven’t changed that much over time. After he’s out of office, you go and arrest him. So, 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.

The Department of Justice does know what to do with such people. So far, I haven’t seen any activity in that direction. Not only that, the people who stormed this building, breached it, were not accused of conspiring with the president.

            The second idea listed by Lucas “Radical Constitutional Theory.” David Schoen, a second attorney for Trump, indicated that such a trial of Trump would open the door for future former officeholders to be impeached and then tried by the Senate. This trial will certainly set a precedent for future trials. He also indicated that such a trial “would be a de facto ‘bill of attainder’ which is forbidden by the Constitution.” According to Schoen, a bill of attainder allows legislatures to enact judgment in place of courts. He added the following statement.

An impeachment trial of a private citizen Trump, held before the Senate, would be nothing more nor less than the trial of a private citizen by a legislative body.

Let’s be perfectly clear: If you vote to proceed with this impeachment trial, future senators will recognize that you bought into a radical, constitutional theory that departs clearly from the language of the Constitution itself.

            Schoen continued by telling the Senators that the article of impeachment “should be treated as a nullity and dismissed based on the total lack of due process in the House.” He reminded the Senators that there was a “complete lack of due process that brought this article of impeachment before this body.”

            Lucas’ third idea had to do with two officials who were impeached by the House after they left office. One was War Secretary William Belknap who resigned in 1876 to avoid impeachment in a corruption scandal. The House impeached, and the Senate tried him. Interestingly, Belknap used the same argument that Trump is using – that the Senate lacked jurisdiction. Senators voted 37-29 to hold the trial but later acquitted him. Most of the Senators voting to acquit – 22 of the 25 – did so because of lack of jurisdiction.

            The second official was Sen. William Blount, who in 1797 was the first impeachment in the nation. He was impeached for conspiring with Great Britain, but the Senate chose not to try him because he was already gone.

            The fourth idea took from the proceedings by Lucas is that the impeachment and trial are being held to disqualify Trump from any future political office. According to Castor, “We are really here because the majority in the House of Representatives does not want to face Donald Trump as a political rival in the future.” Castor argued that the American voters should have the opportunity to make that decision. He said that a “group of partisan politicians [are] seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million-plus American voters.”

            For his fifth takeaway, Lucas used the First Amendment argument. House managers said that Trump was not impeached for voicing unpopular opinions but “for inciting armed violence against the government of the United States.”

            Lucas’ sixth takeaway is that the Senate trial will “tear this country apart.” House managers insist that the trial of Trump is necessary to bring healing to the nation. “We cannot have unity without accountability.” Schoen countered that a trial would make the nation even more polarized.

They say you need this trial before the nation can heal…. That the nation cannot heal without it. I say, our nation cannot possibly heal with it. With this trial, you will open up new and bigger wounds across the nation.

            After referring to the video used by the House impeachment managers to open the trial, Schoen continued:

This trial will tear this country apart, perhaps like we’ve only ever seen once before in our history. And to help the nation heal, we now learn that the House managers in their wisdom have hired a movie company and a large law firm to create, manufacture, and splice for you a package designed by experts to chill and horrify you and our fellow Americans.

            Schoen reminded the Senators that they should be careful of setting a precedent because “The political pendulum will shift one day, and partisan impeachments will become commonplace.” He added that the attack on the Capitol was “repugnant” and that “Anyone truly interested in real accountability [for the violence at the Capitol] would of course insist on waiting for a full investigation.” Trump, his team of lawyers, and most conservatives denounce the violence at the Capitol and hope that the rioters are arrested and brought to justice for their acts.