Day 1: February 9, 2021
By all rights, the first day of Donald Trump’s second impeachment trial should have been dull. The Senate began by agreeing, on an 89-to-11 vote, to devote four hours of opening argument to a legal question that actually does not warrant four hours of argument: whether the Senate has jurisdiction over the trial of a former official at all.
It’s not that the question is an uninteresting one or that there’s no reasonable argument to be had over it. There are serious people on both sides of the matter. It is, however, a relatively simple question, involving a limited amount of textual and structural argument alongside a smattering of history and precedent. Devoting multiple hours to debating it should have been a recipe for a soporific afternoon.
Yet the trial’s opening day was not a dry, repetitious, cut-rate seminar on the jurisdiction of the Senate when sitting as a court of impeachment. It was actually riveting.
It was riveting initially, because the House impeachment managers, led by Rep. Jamie Raskin (D-Maryland) and with an especially impressive performance by Joe Neguse (D-Colo.), put on an exceptional presentation—one that skillfully used the jurisdictional dispute at issue to talk about the magnitude of Trump’s wrongdoing and the resulting stakes in the Senate trial. And it was riveting later in the afternoon because the former president’s legal team put on a true train-wreck of an argument, one that highlighted both the rather obvious lack of preparation of a team that had only been on the job for a few days and the relative weakness of that team’s substantive position.
The result was that on the one side was Raskin and Neguse’s careful walk through the history of the impeachment clauses, the intermingling of this history with compelling video of the events of Jan. 6, argument about Trump’s conduct on and around that day and Raskin’s moving story of having his family at the Capitol during the insurrection in the midst of mourning the death of his son. And on the other side was Bruce Castor’s acid trip of a meander around subjects as diverse as his thoughts on the Senate, the role and personality of senators, the quality of the manager’s presentation, and—only very occasionally—the merits of the case at hand; and there was Dan Schoen’s angry yelling about due process and, only every now and then, jurisdiction.
All of this appears to have moved exactly one senator’s vote.
As recently as Jan. 26, the Senate faced a substantively similar motion to dismiss the article of impeachment on grounds that that the Senate had no power to hear it—Trump no longer being in office. At that time, the Senate voted 55-45 to table the motion. On Tuesday, after the four hours of lopsided argument, the Senate voted 56-44 that it had jurisdiction to hear the case. Only Sen. Bill Cassidy (R-La.) voted differently the second time from the first. It’s not clear, at least not to me, how a trial unconstitutional a couple of weeks ago became constitutional today for him, but it clearly had something to do with the quality of the advocacy he heard. As CNN reported later:
"House managers were focused, they were organized," and "made a compelling argument," Cassidy said after the vote. In contrast, he added, "President Trump's team were disorganized. They did everything they could but to talk about the question at hand and when they talked about it, they kind of glided over, almost as if they were embarrassed of their arguments."
The fact that such a dramatic disparity moved so few suggests that there is not a lot of elasticity in the Senate on impeachment. All 50 Senate Democrats seem likely votes to convict, but the group of potentially winnable Republicans still seems small. Even with Cassidy, there are only six who are not currently contending that the entire proceeding is unconstitutional, and it’s a little hard to imagine any senator voting to convict Trump in a trial he or she does believe the Senate has the authority to hold in the first place.
This lack of elasticity is not all that surprising—given the Republican unity in the face of evidence during the last impeachment trial, given the Jan. 26 vote, and given the general atmosphere of polarization. It is, however, sobering for those who were hoping that the dam was finally breaking on Trump’s hold on his party. If Tuesday didn’t move more senators toward greater openness to convicting Trump, it’s hard to imagine that more days of hammering them with the facts of the former president’s conduct and its relationship to the events of Jan. 6 will do so.
Indeed, while the notional issue at hand on Tuesday was jurisdictional, neither side hewed closely to the specific legal question. The president’s lawyers didn’t hew closely to any question. And the House managers had plenty of time to pound the table about what Trump did, cramming this into the jurisdictional argument using the following logic: (1) by contending that the Senate has no jurisdiction to try former officials, Trump’s legal team is seeking a “January exception” to impeachment, under which a president can do just about anything before leaving office without fear of impeachment; (2) such an exception would allow a president to refuse to honor the results of an election and even use violence to hold power; (3) this is exactly what Trump did, and let us spell this out for you at great length by talking about the merits of the case; and hence (4) there has to be jurisdiction over former officials. It’s a neat argument, one that allowed an elegant hybrid of the jurisdictional point at issue and the and merits of the case that constantly reminded senators and the public of the incredibly damaging facts at the heart of this case. It also kept the presentation interesting by preventing it ever from becoming a dry-as-dust argument about the Senate’s power. The fact that it didn’t swing more votes strongly suggests that there aren’t that many more votes to swing.
The resolution approved just before the trial began, which authorized procedures for the trial, seems like a tacit admission of this reality. While it leaves open the possibility of calling witnesses, its operative assumption seems to be that, once again, the Senate’s idea of a “trial” will a sequenced series of arguments by the two sides, and then an opportunity for senators to ask questions of the advocates. This was largely the way the Clinton impeachment trial ran, and it was reasonably well suited to that case, in which Ken Starr had amassed a more-than-complete record. It was also the mode of the first Trump trial, for which it was entirely ill-suited, the record the House having amassed having been far from complete in that case. It’s a frustrating model for this trial for similar reasons. While people keep insisting that the public record is overwhelming and that witnesses are thus unnecessary, the public record is decidedly not complete. If senators vote without hearing from witnesses, they will, for example, vote without any first-hand account of what the former president did during the crucial hours between giving his speech and when he tweeted and made public statements early that evening. There are other gaps too, and while filling them is unlikely to convince more senators to vote to convict, it seems quite wrong to let them vote to acquit Trump without forcing them to stare the full record of his conduct in the face.
The question of witnesses remains a little opaque because the managers have not forsworn attempting to call them, and they did talk Tuesday at various times about presenting their case and presenting evidence—something that seems a little more than mere argument with video about matters already in the public domain.
That managers may be playing with a two-pronged fork here, preparing to begin their case and perhaps end it with only the 16 hours of arguments the resolution gives them—but also maintaining ambiguity about whether they will seek witnesses and leaving that decision to later. This gives them the opportunity to see how the initial phase has gone and whether there is support among senators for calling witnesses and actually seeing a fuller presentation of the evidence. But it seems pretty clear even at this stage that a complete airing of the case is not in the cards.
On this point, the sticking point may be a weird a marriage of convenience between senators resistant to witnesses for very different reasons. For Republican senators, the whole trial is embarassing; it forces them to take one bad vote after another, to wallow in Trump’s misconduct, and to live the divisions within their own party. The sooner it is done, the better. For Democratic senators, by contrast, the trial is of only limited utility if there is no chance of flipping 17 Republican colleagues. Democrats, after all, have competing priorities right now. They want to confirm cabinet and subcabinet nominees, and they have legislation they want to move too. Using up a lot of Senate energy to vindicate the principle that an impeachment trial is supposed to be, well, an actual trial is not especially high on the priority list for some of them. Each side thus has its own reasons for wanting to “move on.”
But while two bad reasons don’t together make up a good reason for cutting the impeachment trial short after arguments, they do offer a basis for reasonable House managers to be cautious about what they can expect to get done before an impatient Senate.
And so, the Senate having determined that it has the authority to hear Trump II, it now proceeds to listen to these arguments—and to figure out whether those arguments will morph into the presentation of the actual case against Trump or whether it’s more convenient not to bother.
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