The US Senate voted to proceed with Donald Trump’s second impeachment trial by rejecting his legal team’s argument that the process was unconstitutional, although the overwhelming majority of Republicans backed the former president.
Just six out of 50 Republican Senators voted for a motion asserting that Trump could still be tried even though he is no longer in office, underscoring the slim odds that he will be convicted for inciting the deadly riot on the US Capitol on January 6.
The 56-44 vote in favour of the motion paves the way for the trial to begin in earnest on Wednesday, when Democrats will lay out their arguments against Trump. The result was almost identical to a procedural vote held last month, in which only five Republicans voted that it was constitutional to try a former president.
On Tuesday, the five Republicans who voted against party lines in the earlier vote — Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania — were joined by Bill Cassidy of Louisiana.
Tuesday’s result signals how unlikely it is that Trump will be convicted at the end of the trial, given that conviction requires the support of two-thirds of the 100-member chamber.
The vote followed a nearly four-hour debate that started with Democrats playing extensive video footage of the Capitol riot that left five people dead, including a Capitol police officer.
The 10-minute video was a compilation of clips, played in chronological order, of the attack as seen from outside and inside the Capitol, including a snippet of Trump encouraging the crowds to “fight like hell” and march on the legislature.
The crowd subsequently staged a riot that interrupted the certification of Joe Biden’s election victory.
“That’s a high crime and misdemeanour,” Jamie Raskin, the Democratic congressman from Maryland who is the lead impeachment manager and de facto chief prosecutor, said after showing the video. “If that’s not an impeachable offence, then there’s no such thing.”
Trump’s lawyers argued on Tuesday that the former president cannot be tried as he is no longer in the White House, and that the process is therefore unconstitutional.
They cited as evidence the fact that Patrick Leahy, the Democratic senator from Vermont and president pro tempore of the Senate, was presiding over the trial rather than John Roberts, the chief justice of the Supreme Court who presided over Trump’s first impeachment trial.
The constitution stipulates that the chief justice preside over a president’s trial, while the president pro tempore has historically presided over the impeachment trials of non-presidents.
Raskin on Tuesday said Trump’s lawyers were trying to carve out a “January exception” for an outgoing president to be free to act as he pleases at the end of his tenure.
“Their argument is that [if] you commit an impeachable offence in your last few weeks in office, you do it with constitutional impunity. You get away with it,” he said.
Raskin said the Republicans were essentially arguing that a high crime or misdemeanour should be punished during the “vast majority” of someone’s presidency, but then “you can suddenly do it in your last few weeks of office without any constitutional accountability at all”.
Raskin was followed by impeachment managers Joe Neguse and David Cicilline, who set out in detail the Democrats’ argument that America’s founders included impeachment in the constitution as a vehicle to both remove public officials who had committed “high crimes and misdemeanours” and also prevent them from holding future office.
They pointed to article one of the constitution: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States.”
Raskin wrapped up the prosecution’s arguments on Tuesday with an emotional speech, in which he reminded lawmakers that he buried his 25-year-old son, who died at the end of last year by suicide, just one day before the Capitol siege.
“This cannot be our future. This cannot be the future of the America,” he said as he wiped away tears. “We cannot have presidents inciting and mobilising mob violence against our government and our institutions because they refuse to accept the will of the people under the constitution of the United States.”
Trump was impeached by the House of Representatives last month in a vote in which 10 Republicans sided with Democrats. In addition to becoming the first president to be impeached twice, he is also the first to be tried after leaving office.
More than 150 legal scholars, including the co-founder and several members of the conservative Federalist Society, asserted in an open letter last month that the US constitution “permits the impeachment, conviction and disqualification of former officers, including presidents”.
The process comes just a year after Trump was exonerated in another Senate trial. He was impeached in late 2019 over his efforts to get the Ukrainian president to dig up dirt on Biden and his family. Just one Republican — Mitt Romney of Utah — voted to convict in that trial.
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