Trump's second impeachment trial: Day 1

By Meg Wagner, Melissa Macaya, Melissa Mahtani, Mike Hayes and Veronica Rocha, CNN

Updated 8:30 p.m. ET, February 9, 2021
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5:46 p.m. ET, February 9, 2021

Senate says Trump's impeachment trial is constitutional

Senate TV
Senate TV

A majority of senators said the impeachment trial of former President Trump is constitutional despite calls from some Republicans to dismiss proceedings.

A simple majority was needed to proceed.

What comes next: The House managers and Trump's defense team are each allotted up to 16 hours spread over two days to present their cases.

The House managers arguing for impeachment go first, and we know that they plan to use a lot of video from the day of the insurrection to make their points. We expect the proceedings will resume at noon ET tomorrow.

Watch the vote:

5:02 p.m. ET, February 9, 2021

The Senate is voting on the trial's constitutional validity

From CNN's Jeremy Herb, Manu Raju and Lauren Fox

Following four hours of debate where both sides presented their arguments, the senators are now voting on the constitutionality of an impeachment trial for a president who has already left office.

A simple majority is needed to proceed.

Here's a recap of what each side said during their portion of the debate:

House impeachment managers: Rep. Jamie Raskin of Maryland, the lead impeachment manager, opened his presentation with a video showing disturbing footage of how protesters overran police and ransacked the Capitol. The video was spliced with former President Trump's speech on Jan. 6 ahead of the riots, showing the crowd's reaction to Trump as he urged them to head to the Capitol.

The Democrats' 13-minute video concluded with Trump's deleted tweet on Jan. 6, saying that "these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away."

"If that's not an impeachable offense, then there's no such thing," Raskin argued.

Trump's defense team: Trump's team has contended that the impeachment trial itself is unconstitutional, while arguing that Trump did not incite the rioters and that his speech about the election was protected by the First Amendment.

Trump's attorney Bruce Castor warned that a second impeachment trial in 13 months would "open the floodgates" to future impeachments, even making the unfounded rhetorically suggestion that former Obama administration Attorney General Eric Holder could be impeached.

After Castor deferred to Trump's other lawyer David Schoen, the tone of the defense team changed starkly. Schoen charged that Democrats were using impeachment as a political "blood sport" to try to keep Trump from running for office again.

5:00 p.m. ET, February 9, 2021

Some senators appear to be struggling to pay attention to the lengthy arguments by Trump's attorney

From CNN's Ryan Nobles 

Former President Trump's impeachment attorney David Schoen seemed to read for word from a packed binder with words typed in a large font. He spoke to a room of senators clearly growing weary of the lengthy arguments. Many were slumped in their chairs and seemed to be struggling to stay attention.

Most senators remained seated throughout his remarks although some did wander into different parts of the chamber. GOP Sen. Roy Blunt spent most of the half hour in the outer lobby before coming back and taking his seat. Republican Sen. Josh Hawley watched the proceedings, spread out in the gallery in a row all to himself. He took notes and paid close attention to the arguments.

GOP Sen. Thom Tillis, who is recovering from a leg injury, spent some of the time on a bench in the back of the chamber, but ultimately came back and sat in his assigned seat.

Many senators on both sides of the aisle took copious notes throughout Schoen’s remarks. Utah Sen. Mike Lee never seemed to stop writing as the presentation was given. Others, like Republicans Mitt Romney, Kevin Cramer and James Lankford took notes throughout as did Sen. Tammy Duckworth on the Democratic side.

For the most part, the senators remained stoic throughout the proceedings, but both sides gave an audible laugh when Schoen gave his arguments that Sen. Patrick Leahy, serving as the presiding judge despite also being a Trump opponent, made the proceedings unconstitutional. 

Before he launched into his argument, Schoen turned and faced Leahy and said “with all due respect” which led to laughs from both Democratic and Republican senators.

4:52 p.m. ET, February 9, 2021

There are less media restrictions for this impeachment trial than for Trump’s first impeachment

From CNN's Ali Zaslav and Ted Barrett 

Sen. Kevin Cramer speaks to the press before he heads to the senate floor on February 09.
Sen. Kevin Cramer speaks to the press before he heads to the senate floor on February 09. Tasos Katopodis/Getty Images

Reporters have increased access to senators and to areas surrounding the Senate floor during the second impeachment trial of former President Trump, compared to the last one.

During Trump’s first impeachment trial, about one year ago, there were much smaller press pens that reporters and photographers piled into and were required to have an escort to move in and out of. Reporters were not able to leave the pens to walk with senators, as is usual practice, near the Senate floor.

On the first day of this trial, press pens are much larger and appear to be more of a guideline than a rule. The ropes surrounding the pens have spaces between that reporters can walk in and out of. No escorts are needed and press is able to walk and talk with senators when they see them. 

Of course, there is also an ongoing coronavirus pandemic that has impacted the number of press that are at the Capitol and much of the coverage is being shared via a pool arrangement between networks and print outlets. There are social distancing stickers within all the press areas for reporters and photographers to stand on.  

Sen. Amy Klobuchar, chair of the Senate Rules Committee that oversees the administration of Senate operations, told CNN Monday that she and Majority Leader Chuck Schumer “deliberately” worked to reduce press restrictions and improve access for the duration of the impeachment trial.  

Klobuchar said last year, during Trump’s first impeachment trial, there was an argument made to Republicans, who chaired the Senate Rules Committee and held the Senate majority at the time, that more security measures around the Senate were necessary because Chief Justice John Roberts was presiding.

“The argument was made when the Republicans were in charge that Chief Justice Roberts needed some extra security and he's not the judge of this trial,” she said, noting that now Senate Pro Tempore Sen. Pat Leahy is presiding. 

The Minnesota Democrat also argued there is “clearly enough” security, as the US Capitol complex is fenced in with razor wire on top, and still protected by National Guard Troops.

4:45 p.m. ET, February 9, 2021

US Supreme Court says Senate has power to set trial rules

From CNN's Joan Biskupic

Former President Trump's lawyer David Schoen acknowledged that the Supreme Court’s 1993 case of Nixon v. United States gives the Senate wide latitude to run an impeachment trial, even as Schoen argued for greater due process for Trump.

That 1993 case stands for the proposition that the Senate has sole authority over how it undertakes the trial of an impeached official. The high court majority said that a challenge to an impeachment trial is a “nonjusticiable” political question. 

The case involved US District Court Judge Walter Nixon, who had been impeached by the House and convicted by the Senate in 1989. Nixon challenged the Senate procedures used for his trial.

Writing for the majority that broadly rejected Nixon’s arguments, Chief Justice William Rehnquist said that the Constitution gives the Senate “sole” power to try a case and added that in the case of a president, “opening the door of judicial review … would expose the political life of the country to months, or perhaps years, of chaos.” 

Justice David Souter suggested an exception that would allow court review for Senate maneuvers that would threaten the integrity of the result, “say, upon a coin toss.” No other justice joined his concurring opinion in the case.

4:54 p.m. ET, February 9, 2021

Trump lawyers tout the fact that he hasn’t been charged 

From CNN's Marshall Cohen

Senate TV
Senate TV

Former President Trump’s lead impeachment attorney, Bruce Castor, argued on the Senate floor that if Trump actually committed a “high crime or misdemeanor,” then he would have been criminally charged. 

“After he's out of office, you go and arrest him,” Castor said, pushing back on Democrats’ arguments that impeachment is the right way to hold a president accountable for eleventh-hour misconduct. “There is no opportunity where the President of the United States can run rampant in January at the end of his term and go away Scott-free.”

To further make his point, Castor noted that Trump hasn’t been named as a co-conspirator in any of the 200-plus criminal cases stemming from the Capitol insurrection so far. 

“So far, I haven’t seen activity in that direction,” Castor said. “And not only that, the people who stormed this building and breached it were not accused of conspiring with the President.”

Some context: He is correct that Trump hasn’t been charged or named as a co-conspirator. But the investigation is still ongoing, and the decision of whether to charge the former President is a complex legal question that would require intense deliberation. Most of the charges brought so far have been easy pickings for prosecutors because of the plethora of videos and photos of the Capitol riot. 

Prosecutors said early on in the probe that they would examine every possible angle, including whether speakers at the rallies before the attack incited the crowd to commit acts of violence. 

Furthermore, many of the defendants have pointed the blame back at Trump, even if prosecutors haven’t formally made that connection. Several high-profile defendants have said that they invaded the Capitol because they believed they were following instructions from their President.

Watch here:

4:52 p.m. ET, February 9, 2021

Trump's defense lawyer calls impeachment an effort "to disenfranchise 74 million-plus American voters"

From CNN's Jason Kurtz

David Schoen speaks on the Senate floor.
David Schoen speaks on the Senate floor. Senate TV

Trump's defense lawyer is making the case that the second impeachment trial against the former President is unconstitutional, saying the proceedings have been falsely disguised as an effort to garner accountability for the events of Jan. 6.

"They say you need this trial before the nation can heal," said David Schoen. "I say our nation cannot possibly heal with it."

Schoen suggested the trial would "open up new and bigger wounds across the nation," and said Democrats are looking to discount those who voted for Trump in 2016.

"Many Americans see this process for exactly what it is: a chance by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million-plus American voters," he said.

Schoen called those pushing for the second impeachment trial "elitists" who failed to accept the results in 2016, and called the trial an attempt to further a left-leaning political agenda.

"At the end of the day, this is not just about Donald Trump or any individual. This is about our Constitution and abusing the impeachment power for political gain," he said. 

Schoen said the trial would not unite the nation, rather it will "tear the country in half, leaving tens of millions of Americans feeling left out of the nation's agenda."

Noting that House impeachment managers enlisted the help of a movie company to produce a video recapping the Capitol riot, Schoen criticized the tactic as an effort to "chill and horrify" those who will view it.

"They want to put you through a 16-hour presentation over two days focusing on this as if it were some sort of blood sport. And to what end?" he asked, adding, "for healing? For unity? For accountability? Not for any those."

Instead, he dubbed it a "pure, raw, misguided partisanship that makes them believe playing to our worst instincts somehow is good."

Hear Trump lawyer David Schoen's argument:

4:22 p.m. ET, February 9, 2021

Trump's lawyers swapped speaking slots at the last minute

From CNN's Kaitlan Collins

Senate TV
Senate TV

Attorney David Schoen, who is speaking on the Senate floor now, was supposed to present first, not Bruce Castor, according to two people familiar with the plan.

As he closed his opening argument, Castor said they changed the order because the House managers did such a good job. 

"I'll be quite frank with you. We changed what we were going to do on account that we thought that the House managers' presentation was well done," he said.
5:11 p.m. ET, February 9, 2021

How Sen. Ben Sasse reacted when Trump's lawyer called him out today

From CNN's Manu Raju and Caroline Kelly

Former President Trump's attorney Bruce Castor, Jr. called out Republican Sen. Ben Sasse from Nebraska in his opening statement today.

Sasse recently released a video message to the Nebraska GOP and urged the party to accept critics of the former President and remain true to conservatism as the party's future.

"Let's be clear: The anger in this state party has never been about me violating principle or abandoning conservative policy -- I'm one of the most conservative voters in the Senate -- the anger's always been simply about me not bending the knee to one guy," Sasse said.

Sasse's comments came as the Republican Party at large grappled with warring factions at odds over whether to continue the party in Trump's likeness or forge a new path veering from the former President's legacy.

Today, Castor, Trump's attorney, claimed that Sasse has faced backlash. Sasse and other key Republican senators voted with the Democrats that the trial was constitutional: Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Pat Toomey of Pennsylvania.

"The political party was complaining about a decision he made as a United States senator," Castor said. "You know, it's interesting because I don't want to steal the thunder from the other lawyers, but Nebraska, you're going to hear, is quite a judicial thinking place, and just maybe Sen. Sasse is on to something. You'll hear about what it is that the Nebraska courts have to say about the issue that you all are deciding this week. There seem to be some pretty smart jurists in Nebraska and I can't believe that a United States senator doesn't know that. A senator like the gentleman from Nebraska whose Supreme Court history is ever present in his mind and rightfully so. He, he faces the whirlwind even though he knows what the judiciary in his state thinks." 

He continued: "People back home will demand their House members continue the cycle as political fortunes rise and fall."

According to a press pool report from inside the Senate chamber, Sasse appeared to "befuddled by Castor's Nebraska riff." He and senators seated nearby appeared confused by Castor's remarks.