In former President Donald Trump’s second impeachment trial, Republicans find themselves in a familiar position: arguing that something Democrats, and a large slice of the public, want is unconstitutional.
Forty-four of the 50 Republicans have voted that they do not have the authority to try a president whose term has concluded under the impeachment process. While 56 senators concluded otherwise, including one additional Republican (Louisiana’s Bill Cassidy) since the last time this question came to a vote, this suggests it is unlikely the Senate has the required two-thirds majority to convict Trump — regardless of what is said during the trial.
This forces both Trump’s widely panned legal defense team and Republican senators who wish to acquit the ex-president to rely on process arguments, while the Democratic House impeachment managers focus on the emotionally fraught events of Jan. 6, when Trump supporters stormed the Capitol in a riot that left five people dead. Trump was charged by the House with inciting an insurrection.
“There is no discernible strategy in the House brief to convict as opposed to enrage,” said George Washington University law professor Jonathan Turley. “They focus more on how Trump’s words were interpreted than how they were intended. The case is emotionally charged but legally insufficient, in my view, to prove an incitement to an insurrection.”
Rep. Jamie Raskin, a Maryland Democrat and the lead impeachment manager, fought back tears as he recalled his daughter being with him at the Capitol. On Wednesday, he traced the violence back to Trump’s speech to supporters protesting an election he told them was stolen.
“He told them to fight like hell, and they brought hell that day,” Raskin said. The congressman called Trump the “inciter in chief.”
Rep. Joe Neguse, a Colorado Democrat, presented a chronology of Trump’s assertions about the presidential election. “Officials warned the president that his rhetoric was dangerous and it was going to result in deadly violence,” he said. “He didn’t stop it. He didn’t condemn the violence. He incited it further.”
Impeachment managers intend to show senators, who directly experienced the violence at the Capitol themselves, that the situation could have been even worse. They presented new security footage showing the building being breached and the potential for things to have spiraled further out of control.
Turley questioned the legal argument. “This was not an impeachment for negligence,” he said. “In that sense, there is likely to be more heat than light on the proof of an intent to incite an insurrection. It will be a trial on the use of reckless rhetoric — an emphasis that may produce difficult moments on both sides.”
Republicans have seen their constitutional arguments pitted against emotional appeals before. One recent example is healthcare, as the party has been trying for years to repeal or mount legal challenges to the Affordable Care Act, popularly known as Obamacare. Democrats have emphasized the plight of people suffering with preexisting medical conditions or young people who will lose access to their parents’ insurance coverage.
The Supreme Court has upheld the constitutionality of Obamacare, including in one closely decided 2012 case where Republican-appointed Chief Justice John Roberts provided the key vote. This prompted one Democratic National Committee official, Patrick Gaspard, to tweet at the time, “It’s constitutional. Bitches.” There are legal scholars, including some conservatives, who believe Trump’s current Senate trial also passes constitutional muster.
Public opinion matters in the long run on both issues. But of immediate concern to Trump’s defense team is the Republican senators who voted in accordance with their view that the trial is unconstitutional. Cassidy, of Louisiana, defected from their ranks on Tuesday. Seventeen Republicans would have to vote with all 50 Democrats to convict Trump.
Only one Republican, Sen. Mitt Romney of Utah, voted to convict Trump on a single charge in his previous trial last year.
The Republican National Committee has tried to turn the emotional tide, circulating a memo Wednesday about the “people the Democrats forgot.” This missive mentions “a small business owner devastated by California’s lockdowns,” a father of six who wants his children’s schools to reopen, a union worker who lost his job when the Biden administration canceled the Keystone XL pipeline, and a Border Patrol agent concerned about the new president’s immigration executive orders.
“Every day Democrats spend on their post-presidency impeachment is another day Americans go without the help they desperately need,” said RNC rapid response director Tommy Pigott. “Americans are facing real crises, many directly fueled by Democrat policies.”
Senate Majority Leader Chuck Schumer, a New York Democrat, vowed Tuesday that impeachment would not “throw a wrench into President Biden’s early agenda” and “Senate Democrats will not dither, dilute, or delay” on COVID-19 relief.
The White House has mostly avoided commenting on the proceedings. “Joe Biden is the president; he’s not a pundit,” press secretary Jen Psaki told reporters at Wednesday’s briefing. “He’s not going to opine on the back-and-forth arguments, nor is he watching them, that are taking place in the Senate.”
A Reuters/Ipsos poll found that 47% favored Trump’s conviction and 40% were opposed. A Quinnipiac University poll taken before the trial showed 50% backing conviction and 45% against it.
