WASHINGTON — Editor's note: The videos shown during Trump's impeachment trial may include graphic violence and explicit language.
The Senate has now voted, deciding that former President Donald Trump's impeachment trial is constitutional, even as most Republicans voted against proceeding with the trial.
The Senate voted Tuesday afternoon, 56-44, that the trial is in fact constitutional, even though Trump is no longer in office. Six Republicans joined all 50 Democrats in voting to move forward. Opening arguments in the trial are scheduled for Wednesday at noon Eastern.
Arguments opened Tuesday in the Senate with graphic video of the deadly Jan. 6 attack on Congress and the defeated former president whipping up a rally crowd — “We’re going to walk down to the Capitol!” — as he encouraged a futile fight over his presidency.
The lead House prosecutor told senators the case would present “cold, hard facts” against Trump, who is charged with inciting the siege of the Capitol to overturn the election he lost to Democrat Joe Biden. Senators sitting as jurors, many who themselves fled for safety that day, watched the jarring video of the chaotic scene, rioters pushing past police to storm the halls, Trump flags waving.
“That's a high crime and misdemeanor,” said Rep. Jamie Raskin, D-Md., in opening remarks. “If that's not an impeachable offense, then there's no such thing.”
Trump is the first president to face impeachment charges after leaving office and the first to be twice impeached . The Capitol siege stunned the world as rioters ransacked the building to try to stop the certification of Biden’s victory, a domestic attack on the nation’s seat of government unlike any in its history. Five people died.
Acquittal is likely, but the trial will test the nation’s attitude toward his brand of presidential power, the Democrats’ resolve in pursuing him, and the loyalty of Trump’s Republican allies defending him.
Trump's lawyers are insisting that he is not guilty of the sole charge of “incitement of insurrection,” his fiery words just a figure of speech as he encouraged a rally crowd to “fight like hell” for his presidency. But prosecutors say he “has no good defense” and they promise new evidence.
“Hear ye, hear ye, hear ye,” the acting sergeant at arms intoned to start the trial.
Security remained extremely tight at the Capitol, a changed place after the attack, fenced off with razor wire and armed National Guard troops on patrol. The nine House managers walked across the shuttered building to prosecute the case before the Senate.
White House press secretary Jen Psaki said Tuesday that Biden would not be watching the trial of his predecessor.
“Joe Biden is the president, he’s not a pundit, he’s not going to opine on back and forth arguments,” she said.
With senators gathered as the court of impeachment, sworn to deliver “impartial justice,” the trial was starting with debate and a vote over whether it’s constitutionally permissible to prosecute Trump after he is no longer in the White House.
Trump’s defense team has focused on the question of constitutionality, which could resonate with Republicans eager to acquit Trump without being seen as condoning his behavior.
But the House prosecutors argued there is no “January exception” for a president on his way out the door. Rep. Joe Neguse, D-Colo., referred to the corruption case of William Belknap, a war secretary in the Grant administration, who was impeached, tried and ultimately acquitted by the Senate after leaving office.
“President Trump was not impeached for run of the mill corruption, misconduct. He was impeached for inciting a violent insurrection - an insurrection where people died, in this building," Neguse said."If Congress stands by, it would invite future presidents to use their power without any fear of accountability."
It appears unlikely that the House prosecutors will call witnesses, in part because the senators were witnesses themselves. At his Mar-a-Lago club in Florida, Trump has declined a request to testify.
Trump’s defense team has said it plans to counter with its own cache of videos of Democratic politicians making fiery speeches. “We have some videos up our sleeve,” senior Trump adviser Jason Miller said on a podcast Monday.
“In trying to make sense of a second Trump trial, the public should keep in mind that Donald Trump was the first president ever to refuse to accept his defeat,” said Timothy Naftali, a clinical associate professor at New York University and an expert on impeachment.
“This trial is one way of having that difficult national conversation about the difference between dissent and insurrection,” Naftali said.
A first test Tuesday will be on a vote on the constitutionality of the trial, signaling attitudes in the Senate. The chamber is divided 50-50 between Democrats and Republicans, with a two-thirds vote, 67 senators, required for conviction.
A similar question was posed late last month, when Sen. Rand Paul of Kentucky forced a vote to set aside the trial because Trump was no longer in office. At that time, 45 Republicans voted in favor of Paul’s measure. Just five Republicans joined with Democrats to pursue the trial: Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania
Presidential impeachment trials have been conducted only three times before, leading to acquittals for Andrew Johnson, Bill Clinton and then Trump last year.
Typically senators sit at their desks for such occasions, but the COVID-19 crisis has upended even this tradition. Instead, senators will be allowed to spread out, in the “marble room” just off the Senate floor, where proceedings will be shown on TV, and in the public galleries above the chamber, to accommodate social distancing, according to a person familiar with the discussions.
Presiding is not the Chief Justice of the Supreme Court, as has been tradition for the nation’s few presidential impeachment trials, but the chamber’s senior-most member of the majority party, Sen. Patrick Leahy of Vermont.
Under an agreement between Senate Majority Leader Chuck Schumer and Republican leader Mitch McConnell, the opening arguments would begin at noon Wednesday, with up to 16 hours per side for presentations. The trial is expected to continue into the weekend.
In filings, lawyers for the former president lobbed a wide-ranging attack against the House case, dismissing the trial as “political theater" on the same Senate floor invaded by the mob.
Trump's defenders suggest he was simply exercising his First Amendment rights when he encouraged his supporters to protest at the Capitol, and they argue the Senate is not entitled to try Trump now that he has left office.
House impeachment managers, in their own filings, assert that Trump “betrayed the American people” and has no valid excuse or defense.
Trump's second impeachment trial is expected to diverge from the lengthy, complicated affair of a year ago. In that case, Trump was charged with having privately pressured Ukraine to dig up dirt on Biden, then a Democratic rival for the presidency.
This time, Trump's “stop the steal” rally rhetoric and the storming of the Capitol played out for the world to see. The trial could be over in half the time.
The Democratic-led House impeached the president swiftly, one week after the most violent attack on Congress in more than 200 years. Five people died, including a woman shot by police inside the building and a police officer who died the next day of his injuries.