Daines not among bipartisan majority that finds impeachment trial constitutional

WASHINGTON (CN) — Heart-pounding scenes of the rampage by insurrectionists in the U.S. Capitol served as a gruesome backdrop for Senate debate Tuesday as lawmakers weighed the question of whether it is constitutional to impeach former President Donald Trump, now a private citizen. 

A total of 56 senators – all 50 Democrats plus six Republicans – agreed it is well within the bounds of the U.S. Constitution to impeach a former official after a decisive vote on whether Trump was subject to the Senate proceedings. However, 44 Republicans disagreed, including Senators Tom Cotton, Ted Cruz, Steve Daines, Lindsey Graham, Chuck Grassley, Josh Hawley, Cindy Hyde-Smith and Mitch McConnell. 

For anyone expecting a dry discussion over historic or scholarly text, however, the lead impeachment manager for the Senate trial warned at the outset of proceedings today that Tuesday’s debate would not be that.

“Our case is based on cold, hard facts,” Congressman Jamie Raskin, a Maryland Democrat, said on the floor of the chamber as lawmakers gathered  for a historic, if not altogether singular proceeding. 

For inciting an insurrection, the former reality television host was impeached for the second time of his presidential term on Jan. 13. It had been one week before that vote exactly that a violent mob of Trump’s supporters stormed the U.S. Capitol in a bid to stop the largely perfunctory process of counting the Electoral College votes from the 2020 election. 

The results were forgone: Joe Biden had won the election and the ceremony was just that — a ceremonial tradition signifying a peaceful transition of power in the United States. 

But it would not be peaceful on Jan. 6. 

U.S. Capitol Police officer Brian Sicknick and four others died as a result of the melee, which unfolded as hundreds of officials, including Vice President Mike Pence, were quickly brought to safety. 

Speaking of Trump’s defense to the incitement article, Raskin blisteringly argued Tuesday against what the managers describe as Trump’s “January exception” theory. 

“Their argument is if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity,” said Raskin, a 30-year constitutional scholar and professor. “There is no January exception. The ‘January exception’ is an invitation to our Founders’ worst nightmare. If we buy this radical argument that President Trump’s lawyers advance, we risk allowing Jan. 6 to become our future.” 

Footage captured from both in and around the U.S. Capitol was played for several minutes Tuesday as House impeachment managers began to make their case for the constitutionality of impeaching Trump, who took civilian status Jan. 20. 

These clips showed lawmakers, unaware of the danger outside, interspersed between footage of rioters screaming, “Fuck these pigs,” “Let us in” and “There’s much more coming” as they breached the facade and forced through doorways.

One clip of a rioter shouting, “That’s what we need to have: 30,000 fucking guns up here,” was played against another of supporters chanting in unison, “No Trump, no peace.” 

Raskin also shared images of a rippling wave of bodies united together as they called out “heave, ho,” and pressed against a door that squeezed a police officer nearly to death. 

Trump’s defense team will argue later Tuesday. They suggested in a recent legal brief that conviction at an impeachment trial “requires the possibility of removal from office” and that without that possibility, a trial cannot be had. 

For impeachment managers, however, that theory stands in opposition to the writings of the conservative Federalist Society, former 10th Circuit Judge Michael McConnell and even one-time Trump impeachment defender Jonathan Turley, a professor of law at George Washington University.

Representative Joe Neguse, a Colorado Democrat on the team of impeachment managers, highlighted Turley’s work on executive function theory Tuesday as it related over 140 years ago to Secretary of War William Belknap.

After the House of Representatives launched an investigation of claims that he had profited off his position, Belknap tearfully resigned his post before he could be impeached. 

The House went ahead and impeached Belknap anyway, and the Senate eventually acquitted him of his charges. Another vote in the Senate quickly followed, this one finding that, regardless of his former-official status, Belknap’s impeachment was constitutional. 

“Since Belknap was no longer in office at the time of his trial, the Belknap case indicates that resignation from office does not prevent trial on articles of impeachment,” Turley wrote in 1999 for the North Carolina Law Review. 

Turley called Belknap’s impeachment a “corrective measure that helped the system regain legitimacy.”

Trump denies any responsibility for starting the Jan. 6 riot with a speech he gave the morning of — remarks that he now says are protected by the First Amendment. 

This rang hollow Tuesday for impeachment managers.

Unlike Belknap, Trump was not impeached for run-of-the-mill corruption, Neguse noted. Trump was impeached because of a violent insurrection that occurred under his watch and under his encouragement, the former attorney-turned-Colorado lawmaker argued.