TRUMP SECOND IMPEACHMENT

The second Trump impeachment occurred  in the waning days of the Trump presidency following the events on January 6, 2021, at the U.S. Capitol in which some supporters of President Trump attempted to disrupt the congressional certification of the 2020 presidential election as having been won by Joseph Biden. The House moved quickly following those events. Passing on an investigation, the Judiciary Committee staff compiled publicly available evidence relating to the President’s actions on January 6 and within one week had introduced and approved a single article of impeachment charging the President with incitement to insurrection. Specifically, the article alleged that in the months running up to January 6th the President had consistently issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people. He then repeated those claims when addressing a crowd on January 6, and willfully made statements that, in context, encouraged and foreseeably resulted in lawless action at the Capitol. . . .Notably, although the House ultimately impeached President Trump prior to the expiration of his term, the Senate did not commence a trial until after President Trump had left office.

The Senate trial saw the chamber make two important threshold determinations regarding trials of former Presidents. First, although the Constitution clearly requires the Chief Justice to preside over presidential impeachment trials, the Senate implicitly determined that that requirement does not extend to the trial of a former President. At the opening of the trial, Senator Patrick Leahy, President pro tempore of the United States Senate, was sworn in as presiding officer without objection.

The Senate also made the threshold determination of whether it had the constitutional authority to try a former President. After briefing and debate on the question of whether the Senate had jurisdiction over a former President for acts that occurred during his tenure in office, the Senate explicitly determined by a vote of 56-44 that it did. Thus a majority of Senators, as they have on previous occasions, determined that former officials may be tried by the Senate and, though not removable, remain subject to disqualification from holding future office if convicted.

With respect to whether the President had committed an impeachable offense, the main substantive question during the trial arguably revolved around the proper application of the First Amendment. The former President’s attorneys invoked the First Amendment as a defense to the impeachment charge, asserting that free speech protections apply and limit the conduct that can be considered an impeachable offense. The President’s political statements at the rally, his attorneys argued, constituted core free speech under the First Amendment and thus not an impeachable offense. The House managers disagreed, arguing that The First Amendment has no application in an impeachment proceeding because impeachment does not seek to punish unlawful speech, but instead to protect the Nation from a President who violated his oath of office and abused the public trust. Moreover, even if the First Amendment did restrict the impeachment power, it still would not protect President Trump’s calls to violence, which the managers asserted fell within the well-established category of unprotected speech directed to inciting or producing imminent lawless action. In the end, the First Amendment arguments made by the former President’s attorneys do not appear to have had an impact on Senators, as only one Senator who voted to acquit the former President mentioned the First Amendment in the formal explanation of his vote.

Although a majority of Senators voted to convict, former President Trump was ultimately acquitted by a vote of 57-43.

Note

A majority of senators voted to convict Trump 57 to 43, including seven Republicans. But two-thirds, or 67 votes, was needed to convict. The seven GOP senators who voted to convict Trump were: Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania.

Following the vote acquitting former President Donald Trump, Senate Minority Leader Mitch McConnell, R-Ky., excoriated Trump for his actions on the day of the attack on the U.S. Capitol, calling them a "disgraceful dereliction of duty." There's no question, none, that President Trump is practically and morally responsible for provoking the events of the day," McConnell said shortly after the 57-43 Senate vote that ended in the former president's acquittal. "The people who stormed this building believed they were acting on the wishes and instructions of their president," he said, "and having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth." McConnell rebuked Trump for his actions after the insurrection as well. "He did not do his job. He didn't take steps so federal law could be faithfully executed and order restored," he continued. "No. Instead, according to public reports, he watched television happily — happily — as the chaos unfolded," he said. "Even after it was clear to any reasonable observer that Vice President Pence was in serious danger." But McConnell said that the process of impeachment and conviction is a "limited tool" and that he believes Trump is not "constitutionally eligible for conviction." "The Constitution gives us a particular role. This body is not invited to act as the nation's overarching moral tribunal," he said. He said that the text of the question of constitutionality is "legitimately ambiguous" and that he "respects" his colleagues for reaching either the conclusion to acquit or convict. Seven Republicans broke ranks with their party in voting for a conviction.