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Historic Trial for Trump's Second Impeachment Begins; House Managers and Trump Defense Debate Constitutionality of Trial. Aired 2- 2:30p ET

Aired February 9, 2021 - 14:00   ET



REP. JOE NEGUSE (D-CO): It doesn't say removal from office followed by disqualification. It simply says the Senate can't do more than two possible sentences - removal and disqualification.

And this, by the way, is not the first time that this direct question has been debated in this chamber. One hundred forty-six years ago, during the Belknap trial, Senator George Edmunds of Vermont - he's one of the most prestigious Republican Senators of his time. He sat right where Senator Grassley sits today. He zeroed in on this exact point during the Belknap trial. This is his quote, "a prohibition against doing more than two things cannot be turned in to a command to do both or neither."

And just imagine the consequences of such an absurd interpretation of the Constitution. I mean, if President Trump were right about that language, then officials could commit the most extraordinary, destructive offenses against the American people - high crimes and misdemeanors. They'd have total control over whether they can ever be impeached, and if they are whether the Senate can try the case.

If they want to escape any public inquiry in to their misconduct, or the risk of disqualification from future office then it's pretty simple they could just resign one minute before the House impeaches, or even one minute before the Senate trial, or they could resign during the Senate trial - it's not looking so well. That would effectively erase disqualification from the Constitution. It would put wrongdoers in charge of whether the Senate can try them.

Third and final reason why President Trump must stand trial. Provision of Article One of the Constitution. You'll see here on the screen that the Constitution, twice describes the accused in an impeachment trial. Here is what I want you to focus on. The interesting thing is, notice the words, it refers to a person and a party being impeached.

Now again, we know that the framers gave a lot of thought to the words that they chose. They even had a style committee during the Constitutional Convention. They could have written civil officers here - they did that elsewhere in the Constitution. That would have ultimately limited impeachment trials to current officials. But instead they used broader language to describe who can be tried by the United States Senate. So who could be on trial - put on trial, rather, for impeachment other than civil officers? Who else could a person or a party be? Well, really, there's only one possible answer - former officers. And again, that actually might explain why during the Belknap trial, Senator Thomas Bayard of Delaware he later became the Secretary of State of the United States - he sat right where Senator Carper is sitting now.

He found this point so compelling that he felt compelled to speak out on it, and during the trial he concluded that the Constitution must allow the impeachment and trial of people and parties who are not civil officers - and the only group that could possibly encompass was former officials like Belknap, and of course here, like President Trump.

And just so we're clear, in full disclosure, this is another argument that was not addressed by President Trump in his rebuttal. And we know why they didn't, because their argument doesn't square with the plain text of the Constitution.

There is one provision that President Trump relies on almost exclusively. Article Two, Section Four - I'm sure you'll see it when they present their arguments. Their argument is that the language you'll see on the screen somehow prevents you from holding this trial, by making removal from office an absolute requirement. But again, where does the language say that? Where does it say anything in that provision about your jurisdiction?

In fact, this provision isn't even in the part of the Constitution that addresses your authority, it's in Article Two not Article One. And it certainly says nothing about former officials. President Trump's interpretation doesn't square with history, originalism, textualism.

In fact, even Chuck Cooper the famous Conservative lawyer I mentioned earlier with clients like the House minority leader. He has concluded that this provision of the Constitution that President Trump relies on, cuts against his position, his words, and that's because, as Cooper says, Article II Section 4 means just what it says.


I mean the first half describes what an official must do to be impeached, namely commit high crimes and misdemeanors, and the second half describes what happens when civil officers of the United States, including the sitting president, are convicted, removal from office. That is it.

In Cooper's words, it simply establishes what is known in criminal law as a mandatory minimum punishment. It says nothing about former officials, nothing at all. Given all of that, it is not surprising that in President Trump's legal trial brief, 75 page brief, they struggle to find any professors to support their position.

They did cite one professor though, Professor Kalt, who's an expert in this field, who they claimed agreed with them that the only purpose of impeachment is removal. Professor Kalt's position, which they had to have known because it's -- it's in the article that they cite in the brief, is that removal is "not the soul end of impeachment."

Actually, in that same article, he describes the view, advocated by President Trump's lawyers, a having deep flaws. And again, you do not have to take my word for it. You can take Professor Kalt's word for it, the professor they cited in their brief filed yesterday, because he tweeted about it.

And on the screen here, this is what he had to say. I'm not going to read through it in great detail, I'll just simply give you the highlights. "President Trump's brief cites my 2001 article on late impeachment a lot. But in several places, they misrepresent what I wrote quite badly. There are multiple examples of such flat-out misrepresentations. They didn't have to be disingenuous and misleading like this."

This key constitutional scholar relied on by President Trump said it just right. I have explained, in great detail, the many reasons why the argument that President Trump advocates for here today is wrong. I just want to close with a note about why it's dangerous.

Lead manager Raskin explained that impeachment exists to protect the American people from officials who abuse their power, who betray them. It exists for a case just like this one. Honestly, it -- it is hard to imagine a clearer example of how a president could abuse his office, inciting violence against a coequal branch of government while seeking to remain in power after losing an election, sitting back and watching it unfold.

We all know the consequences. Like every one of you, I was in the Capitol on January 6. I was on the floor with Lead Manager Raskin. Like every one of you, I was evacuated as this violent mob stormed the Capitol's gates.

What you experienced that day, what we experienced that day, what our country experienced that day is the framers worst nightmare come to life. Presidents can't inflame insurrection in their final weeks and then walk away like nothing happened.

And yet, that is the rule that President Trump asks you to adopt. I urge you, we urge you, to decline his request, to vindicate the Constitution, to let us try this case.


REP. DAVID CICILLINE (D-RI): Mr. President, distinguished Senators, my name is David Cicilline, I have the honor of representing the 1st Congressional District of Rhode Island. As I hope is now clear from the arguments of Mr. Raskin, and Mr. Neguse, impeachment is not merely about removing someone from office.

Fundamentally impeachment exists to protect our constitutional system, to keep each of us safe, to uphold our freedom, to safeguard our democracy. It achieves that by deterring abuse of the extraordinary power that we entrust to our presidents from the very first day in office to the very last day. It also ensures accountability for presidents who harm us or our government. In the aftermath of a tragedy, it allows us an opportunity to come together and to heal by working through what happened and reaffirming our constitutional principles. And it authorizes this body and this body alone to disqualify from our political system anybody whose conduct in office proves that they present a danger to the republic.

But impeachment would fail to achieve these purposes if you created for the first time ever, despite the words of the framers and the constitution, a January exception as Mr. Raskin explained.

Now, I was a former defense lawyer for many years and I can understand why President Trump and his lawyers don't want you to hear this case, why they don't want you to see the evidence but the argument that you lack jurisdiction rests on a purely fictional loophole, purely fictional, designed to allow the former president to escape all accountability for conduct that is truly indefensible under our constitution.

You saw the consequences of his actions on the video that we played earlier. I'd like to emphasis in still greater detail the extraordinary constitutional offense that the former president thinks you have no power what so ever to adjudicate. While spreading lies about the election outcome and a brazen attempt to obtain power against the will of the American people he incited an armed, angry mob to riot.

And not just anywhere, but here in the seat of our government, in the Capitol during a joint session of Congress when the vice president presided, while we carried out the peaceful transfer of power which was interrupted for the first time in our history. This was a disaster of historic proportion. It was also an unforgivable betrayal of the oath of office of President Trump, the oath he swore, an oath the he sullied and dishonored to advance his own personal interests.

And make no mistake about it, as you think about that day things could have been much worse. As one senator said, they could have killed all of us. It was only the bravery and sacrifice of the police who suffered deaths and injuries as a result of President Trump's actions that prevented greater tragedy.

At trial, we will prove with overwhelming evidence that President Trump is singularly and directly responsible for inciting the assault on the Capitol. We will also prove that his dereliction of duty, his desire to seek personal advantage from the mayhem, and his decision to issue tweets further inciting the mob, attacking the vice president all compounded the already enormous damage.

Now, virtually every American who saw those events unfold on television was absolutely horrified by the events of January 6th. But we also know how President Trump himself felt about the attack, he told us. Here's what he tweeted at 6:01 as the Capitol was in shambles and as dozens of police officers and other law enforcement officers laid battered, and bruised, and bloodied.

[14:15:00] Here's what he said, "These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love and in peace. Remember this day forever."

Every time I read that tweet it chills me to the core. The President of the United States sided with the insurrectionists. He celebrated their cause. He validated their attack. He told them remember this day forever. Hours after they marched through these halls looking to assassinate Vice President Pence, the Speaker of the House, and any of us they could find.

Given all that, it's no wonder that President Trump would rather talk about jurisdiction and a supposed January exception rather than talk about what happened on January 6. Make no mistake, his arguments are dead wrong. They are distractions from what really matters. The Senate can and should require President Trump to stand trial.

My colleagues have already addressed many of President Trump's efforts to escape trial. I'd like to cover the remainder and then address the broader issues at stake in this trial. For starters in an extension of his mistaken reading of the Constitution, President Trump insists that he cannot face trial in the Senate because he's merely a private citizen. He references here the Bill of Attainder Clause.

But as Mr. Neguse just explained the Constitution refers to the defendant in an impeachment trial as a person and a party. And certainly he counts as one of those. Let's also apply some common sense. There is a reason that he now insist on being called the 45th President of the United States rather than citizen Trump. He isn't a randomly selected private citizen; he's a former officer of the United States government. He's a former President of the United States of America. He's treated differently under a law called the Former President Act.

For four years we trusted him with more power than anyone else on earth. As a former president who promised on a bible to use his power faithfully he can and should answer for whether he kept that promise while bound by it in office. His insistence otherwise is just wrong. And so is his claim that there's a slippery slope to impeaching private citizens, if you proceed. The trial of a former official for abuses he committed as an official arising from an impeachment that occurred while he was an official, poses absolutely no risks whatsoever of subjecting a private citizen to impeachment for their private conduct.

To emphasize the point, President Trump was impeached while he was in office for conduct in office, period. The alternative, once again, is this January exception. Which our most powerful officials can commit the most terrible abuses and then resign to leave office and suddenly claim that they're just a private citizen who can't be held accountable at all.

In the same vein, President Trump and his lawyers argue that he shouldn't be impeached because it will set a bad precedent for impeaching others. But that slippery slope argument is also incorrect. For centuries the prevailing view has been that former officials are subject to impeachment. And you just heard a full discussion of that.

The House has repeatedly acknowledged that fact. But in the vast majority of cases the House has rightly recognized that an official's resignation or departure makes the extraordinary step of impeachment unnecessary and maybe even unwise. As the House Manager rightly explained in the Belknap case and I quote, "There is no likelihood that we shall ever unlimber the clumsy and bulky monster piece of ordinance to take aim at an object from which all danger has gone by." End quote.

President Trump's case though is different. The danger has not gone by. His threat to democracy makes any prior abuse by any government official pale in comparison. Moreover allowing his conduct to pass without the most decisive response would itself create an extraordinary danger to the nation.


Inviting further abuse of power and signaling that the Congress of the United States is unable or unwilling to respond to insurrection incited by the president. Think about that.

To paraphrase just as Robert Jackson who said that press -- that precedent that I just described would lie about like a loaded weapon ready for the hand of any future president who decided in his final months to make a play for unlimited power. Think of the danger.

Here is the rare case in which love of the Constitution and commitment to our democracy required the House to impeach is for the same reason the Senate can and must try this case.

Next, President Trump will assert that he -- it's somehow is significant or it matters that the chief justice isn't presiding over this trial. Let me state this very plainly. It does not matter. It is not significant.

Under Article I, Section 3 when the President of the United States is tried the Chief Justice shall preside. There is only one person who is President of the United States at a time. Right now, Joseph R. Biden Jr. is the 46th President of the United States. As a result, the requirement that the chief justice preside isn't triggered.

Instead, the normal rules of any impeachment of anyone other than the sitting president apply, and under those rules the President Pro Tem, Senator Leahy, can preside. Of course, this makes perfect sense. The chief justice presides because when the current president is on trial if he, chief justice, doesn't preside, the vice president can preside. It would be a conflict for someone to preside over trial that would become president if there was a conviction.

So there isn't that concern when you have a former president on trial or for the matter when you have anyone on trial other than the current president, which is why the chief justice presides only in that single case and why this is exactly the presiding officer the Constitution and the Senate rules require.

As a fallback, President Trump and his lawyers may argue today that he should get a free pass on inciting and armed insurrection against the United States government, of endangering Congress because as he would put it this impeachment is somehow unconstitutional.

So far as I understand it from reading the pleadings of this case, this defense involves coddling together a bunch of meritless legal arguments, all of them attempt to focus on substance rather than jurisdiction, and insisting that these kitchen-sink objections lead the Senate to not try the case.

Sense they may raise these points at this juncture, I feel obliged really to address them. He may argue, for example, that he didn't receive enough process in the House even though the House proceedings are more like a grand jury action, which is followed later by trial in the Senate with a full presentation of evidence, even though the evidence of his high crimes and misdemeanors is overwhelming and supported by a huge public record, even though we're going to put that evidence before you at this trial, and even though have a full and fair opportunity to respond to it before all of you, even though hundreds of others involved in the events of January 6 have already been charged for their role in attacks that the president incited, and even though we invited him to voluntarily come here and testify and tell his story. Our request, as you know, that his lawyers immediately refused presumably because they understood what would happen if he were to testify under oath.

Regardless, President Trump's process arguments are not only wrong on their own terms, but they're also completely irrelevant to the question of whether you should hold this trial. That question is answered by the Constitution, and the answer is yes.

In addition, separate from his due process complaints, President Trump and his counsel -- particularly his counsel -- have boasted on TV that to counter the undisputed evidence of what actually happened in this case you'll see video clips -- they'll show video clips of other politicians, including Democratic politicians using what they consider incendiary language.

Apparently they think this will establish some sort of equivalency or that'll show in contrast that President Trump's statements at the State of America rally weren't so back. Like so much of what President Trump's lawyers might say today, that's a gimmick. It's a parlor game meant to inflame partisan hostility and play on our divisions.


So let me be crystal clear. President Trump was not impeached because the words he used viewed in isolation without context were beyond the path. Plenty of other politicians have used strong language, but Donald J. Trump was President of the United States. He sought to overturn a presidential election that had been upheld by every single court to consider it. He spent months insisting to his base that the only way he could lose was a dangerous, wide-ranging conspiracy against them and America itself. He relentlessly attempt to prefer to (ph) his followers that the peaceful transfer of power that was taking place in the Capitol was an abomination that had to be stopped at all costs. He flirted with groups like the Proud Boys, telling them to stand back and stand by while endorsing violence and sparking death threats to his opponents. He summoned and armed, angry, and dangerous crowd that wanted to keep in power and was widely reported to be poised a hair trigger for violence at his direction.

He then made his heated statements in circumstances where it was clear, where it was foreseeable that those statements would spark extraordinary, imminent violence. He then failed to defend the Capitol, the Congress, and the vice president during the insurrection, engaging in extraordinary dereliction of duty and desertion of duty that was only possible because of the high office he held.

He issued statements during the insurrection, targeting the vice president, and reiterating very same lies about the election that had launched the violence in the first place. And he issued a tweet five hours after the Capitol sacked in which he sided with the bad guys.

We all know that context matters. The office and meaning and intent and consequences matter. Simply put, it matters when and where and how we speak. The oaths we've sworn and the power we hold matter. President Trump was not impeached because he used words that the House decided are forbidden or unpopular. He was impeached for inciting armed-violence against the government of the United States of America.

This leads me to a few final thoughts about why it's so important for you to hear this case as authorized and as, indeed, required by our history and by the Constitution. President Trump's lawyers will say I expect that you should dismiss this case so that the country can move on. They'll assert that this impeachment is partisan and that the spirit of bipartisanship and bipartisan cooperation requires you -- us to drop the case and march forward in unity.

With all due respect, every premise and every conclusion of that argument is wrong. Just weeks ago -- weeks ago the President of the United States literally incited and armed attack on the Capitol, our seat of government while seeking to retain power by subverting an election he lost and then celebrated the attack. People died. People were brutally injured. President Trump's actions endangered every single member of Congress, his own vice president, thousands of congressional staffers, and our own Capitol Police and other law enforcement.

This was a national tragedy, a disaster for America's standing in the world, and President Trump is singularly responsible for inciting it. As we will prove, the attack on the Capitol was not solely the work of extremists lurking in the shadows. Indeed, does anyone in this chamber honestly believe that but for the conduct of President Trump that that a charge in the article of impeachment that that attack at the Capitol would have occurred? Does anybody believe that?