Proof Impeachment Livestack: Day 1
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{Note: I’ll be regularly updating this page during the first day of Trump’s second impeachment trial before the Senate. Refresh your browser page to see new updates. Note that this page is organized in reverse chronological order, with the newest posts first. If you’d like to comment on this or any article on this website, click the link below to become a full Proof subscriber.}
(5:15PM) I hope you’ve enjoyed this “livestack” coverage of Trump’s historic second impeachment trial. I hope you’ll click the red button above to subscribe to Proof if you haven’t done so already. You can subscribe for free for just the site’s free content or for just $5/month—the lowest subscription rate Substack allows—for full access to every article, comment section, and Q&A session on this site. I hope to return tomorrow for a “livestack” of Day 2 of the impeachment trial.
(5:14PM) Chuck Schumer is already noting that Mitch McConnell both refused to hold a trial of Trump while he was in office, and now says a trial can’t occur because Trump is not in office. If this weren’t par for the course for the unscrupulous McConnell, it would be breathtaking. He engineered the very situation he now complains about.
(5:11PM) The six Republican senators who voted to proceed with the trial (the “pick-up” or new vote from the vote last week is the last name on the list):
Sen. Ben Sasse (R-NE)
Sen. Mitt Romney (R-UT)
Sen. Susan Collins (R-ME)
Sen. Lisa Murkowski (R-AK)
Sen. Pat Toomey (R-PA)
Sen. Bill Cassidy (R-LA)
(5:10PM) BREAKING NEWS: U.S. Senate votes 56-44 to proceed with Donald Trump’s historic second impeachment trial, rejecting Trump’s claim that such a trial would be unconstitutional.
(5:07PM) The anticipated final vote is 55-45 to continue the trial. The trial will, definitely, continue. We’ll see what the final vote is. Pat Toomey, Mitt Romney, and Ben Sasse have already voted to continue, from among the Republican senators. {Note: Those were just the ones I could catch.}
(5:06PM) BREAKING NEWS: Mitch McConnell votes to end Senate trial, backtracking from his prior claim that Trump’s conduct was “impeachable.”
(5:05PM) It’s important to say that any senator voting “no” is deliberately violating their Oath of Office. The question of whether this trial is constitutional is settled history and, moreover, the subject of near-universal consensus in the legal community.
(5:03PM) CNN has decided to speak over the vote, so we can’t hear how everyone is voting. I’m sure on the back end we will be told which GOP senators—there will be very few, perhaps no more than five—vote to proceed with the trial. I think that the House managers are hoping to get (i.e. their dream would be) seven to ten GOP votes.
(5:01PM) Rep. Raskin is back, calling this “the most bipartisan impeachment in U.S. history”, which of course is absolutely, 100% historically accurate. He says “we see no need to make any further argument” on the subject of the trial being constitutional. He waives all further argument for today, and his 33 minutes of rebuttal, and proposes a recess and a vote on the constitutionality question by the full Senate. That vote will happen now.
(4:59PM) Schoen is now reading poetry. What did I tell you? A “kitchen sink” defense. I think he’s trying not to sneeze? Something strange is happening, and it seems like he’s going to cry, but I honestly don’t think it’s that. He just said “excuse me” to the Senate, like he’s stifling a sneeze. Such a bizarre close to a bizarre, sad presentation.
(4:57PM) Schoen says that House Democrats’ goal is to “disenfranchise” 74 million Americans. Mind you, he’s defending a man who plotted for 75 days—in public, no less—to try to disenfranchise every single American and turn this nation into an autocracy.
(4:56PM) A link to the House managers incredibly powerful video can he found here.
(4:50PM) This is wild. Schoen is now saying that “shall remove” in the Impeachment Clause means that no person can be impeached or convicted post-impeachment unless they can be “removed” from office (meaning, they must still be in office). As the House managers have already pointed out, this imbecilic view means that anyone facing impeachment and conviction can simply resign their office seconds before conviction—or at any time before conviction—in order to avoid any punishment. This is… well, bonkers. That’s what it comes down to: it’s demented and deranged and wildly false.
(4:46PM) Schoen is losing steam now. He just conceded—as I doubt he had permission to do—that he’s received counsel from first-impeachment Trump counselor Kenneth Starr, and moreover just alleged (without any evidence) that respected conservative lawyer Chuck Cooper only said that this impeachment trial is constitutional because he feels “animus” (hatred) toward Donald Trump. A low blow unworthy of this event.
(4:43PM) If you’re wondering—I don’t know why you would be, but if you are—how I’m enjoying “livestacking” Trump’s defense so far, I guess I would put it this way: how would you like to offer a livestream analysis of two six year-olds throwing food at each other? For an hour? That’s how I feel right now. This is a thorough waste of time, but it’s what history has given legal and political analysts like myself to work with, sadly.
(4:38PM) The argument Schoen is making right now, reading the plain language of “impeachment” as actually meaning “impeachment and conviction,” is so bad that I would refuse to make it as an attorney under any circumstances. There is no emergency or exigent circumstances that would prompt me to make this argument. Ever. It is that bad. That disingenuous.
To explain: the Constitution arguably implies you can only impeach a sitting president, but says nothing about trial and conviction. The House did impeach Trump while he was president, so that issue isn’t present here even though David Schoen pretends it is because he says the Founders meant to write (you always lose if you argue that way) that impeachment and conviction has to happen while a president is still sitting.
The funny thing is that you actually can impeach a former official, as it’s happened multiple times before and the Congress has blessed it. The House managers explained this, even though they didn’t have to do so.
(4:36PM) Schoen is just repeating this Castor said, with the addition that he is confusing the word “impeachment” in the Impeachment Clause to mean “impeachment and conviction” rather than just “impeachment.” The theory is that… well, actually, there’s no theory here. Trump was impeached while he was still president, consistent with the U.S. Constitution, and Schoen is pretending otherwise. It’s so ridiculous and disingenuous.
(4:34PM) Schoen has been speaking for about 45 minutes, and only now is he turning to the constitutional argument about the legality of this trial that he was supposed to be making all along.
{sigh}
(4:29PM) I think one thing we’re seeing is that to an extent both sides are treating today more as an opening argument than what it’s supposed to be under the existing bipartisan rules scheme: an argument solely about whether this trial is constitutional. Instead, both sides—but to a far, far greater degree Trump’s side—are using their time to preview their broader arguments in the trial, which presumably they will expand upon in the days to come. The problem for the Trump side is that I don’t see where they go from here: they’ve emptied all their guns, at top volume, on day one. And the sound that emptying made was in fact both incoherent and weak—an angry squawk.
By comparison, the House managers pretty comprehensively addressed the actually ridiculous constitutional question—and, per CNN reporting, didn’t convince any GOP senators that they should go with what every serious lawyer in America is telling them, including many conservative heroes: that the trial is thoroughly constitutional and just.
(4:27PM) From the standpoint of a former criminal defense attorney, I can’t underscore enough that Schoen is all over the map here. So many different and contradictory defenses, so many of them ill-researched or nonsensical or internally contradictory, and so many other rhetorical gambits masquerading as defenses when in fact they are mere political rhetoric intended to please an audience of one: Donald Trump, who were were told by major media earlier today is watching the proceedings on television.
(4:24PM) So many arguments you hear from Trump’s team couldn’t be made unless this were (as it is) a political rather than legal process. In a real trial, a juror like McConnell wouldn’t be apply to supply the defendant with a defense by refusing to hold a trial. All of this would be considered insane—indeed, a kangaroo court—if applied to any other citizen. To be clear, I’m saying that it’s a kangaroo court in the sense of Donald Trump receiving wildly better treatment than any other American would ever receive. Better.
(4:21PM) Schoen expresses fake upset that the House held the Article of Impeachment for 12 days. He leaves out that they did so because the Republican Party, in the person of Sen. Mitch McConnell, a Trump ally, had informed the House that there would be no trial while Trump was in office. In this way, the Republican Party created the very situation it now complains about. The gall in doing so is not just stunning, but, I’d argue, historic.
(4:19PM) It doesn’t make sense for me to rebut each of Trump’s twelve defenses, as I’ve already done so (see the link in the entry below this one). For instance, Trump’s due process rights were not violated because he has misconstrued when he is entitled to them. The short version: he’s entitled to them now. He was not entitled to them during the impeachment process, which is akin to an indictment. Indictments are typically issued without any due process being offered to the defendant whatsoever—you don’t get to know about or participate in the process whatsoever, nor do your attorneys.
(4:14PM) The reason my prior assessment of Trump’s defenses here at Proof was so long, including twelve defenses, is because as a former criminal defense attorney I knew Trump would end up offering a “kitchen sink” defense no matter how many or few defenses he and his team raised in their two pre-trial filings. I was right. Those filings implied only two defenses, but in fact we’re now going to see all twelve I wrote about long ago here at Proof. Mind you, in the real world if your case is this bad you avoid trial as an attorney, but if, as here, you don’t have that option, you have to run a “kitchen sink” defense like the one we’re seeing now. The result is what you see on your television screen at this moment: angry incoherence.
(4:10PM) Here’s the thing: this is the only approach Schoen and Castor can take. When you have no defense but also know that your GOP jurors are bad-faith actors who are simply looking for any hook to hang their hat on with respect to what they’ve already resolved to do—acquit—your job as a defense attorney is simply to offer these disloyal jurors (all violating their juror’s oath and Oaths of Office) as many possible defenses to choose from, even if all are bad and are poorly researched and contradict one another.
(4:08PM) Trump’s borderline hilariously bad defense is that the House both moved too fast and too slow. Too fast: they should have taken months and months to investigate Trump’s actions. Too slow: they needed to impeach and convict Trump within 14 days or it would be (and now is) illegal. They make no effort to resolve this contradiction.
(4:05PM) It is simultaneously ingenious and banal for Schoen to do what he is doing now: presenting a video indicating that certain Democrats have sought Trump’s impeachment before, indeed beginning in 2017. The problem? Trump has engaged in impeachable conduct regularly since he entered office. He doesn’t get to use this cold, hard fact as a defense now.
(4:02PM) The first reference to “cancel [culture]” has appeared. We knew it would. Schoen, who like any bad lawyer is simply reading from his prepared remarks, says that if Trump is convicted right now anyone and everyone in the U.S. government can and will be impeached and convicted for no reason whatsoever going forward. They argue that the first insurrection on American soil since the Civil War is so far below requiring an impeachment that treating it otherwise could destroy the Impeachment Clause permanently. He calls this a frivolous “snap” impeachment. He is shouting for much of his presentation.
(3:59PM) “This is nothing less than the political weaponization of the impeachment process”, says Schoen.
I want to make sure any American reading this knows that if you did what Donald Trump did between November 3, 2020 and January 6, 2021, you would be charged with a crime. Indeed, you may already have had your trial and been sentenced. Let’s be perfectly clear: Trump and his team want him to receive treatment under the law far better than any American who has ever lived has received. He demands to be treated as above the law and, moreover, to be allowed to harangue his accusers for not believing in the law even as he flagrantly flouts it and places himself above it.
(3:57PM) Schoen is now shouting. He says this whole trial is just politics—he’s right, but in the wrong direction, as he’s accusing the wrong political party of making it so—and saying Democrats are tearing the country apart as badly, almost, as the Civil War did. So Schoen is the “bad cop” and Castor is the “good cop.” And somehow Trump trying to stage a coup becomes proof that the Democrats don’t believe in democracy.
(3:54PM) I will say, though, that both Schoen and Castor are circling around one of their strongest (but still unbearably weak) defenses: that the right response to this situation is a criminal investigation of Donald Trump and, if appropriate, a federal prosecution thereafter. Castor even directly said that Joe Biden’s DOJ is the right party to handle this situation, and “I don’t see any [action]” being taken on that front.
(3:53PM) Now David Schoen is speaking. He doesn’t have the folksy style of Castor, he is more of a very low-level bellower. He is saying that this impeachment process now threatens to destroy America. So this is more pounding of the table, because, again, neither the facts nor the law are on Trump’s side in any particular in this case. Very sad.
(3:49PM) Castor doesn’t have the law or facts on his side, so this is the Southern-lawyer version (even though Castor is from Pennsylvania) of a pounding-the-table defense, instead. Castor’s constitutional analyses are laughably bad—worse than what you would get from a first-year law student, with respect to both the Impeachment Clause element regarding “high crimes and misdemeanors” and with respect to the use of the word “and” in outlining the two discrete penalties for conviction—and there’s just no way around that. It is embarrassing for me, as an attorney, to have to even vaguely pretend that these arguments are between two equally compelling sides. Rather, the House managers are facing down something akin to a second-grade debating team that used Wikipedia to look up “law stuff.”
(3:47PM) This is a sort of “kitchen sink” defense that is infused with, to be candid, toxic masculinity. Essentially, America is a macho country and Trump is a macho man and America is macho enough to schedule trial by combat every four years for the presidency and Democrats are afraid of losing the presidency to macho man Trump in 2024 so they have brought this whiny, soft, hissy-fit action known as “impeachment.”
(3:39PM) Castor says Section 3 of the 14th Amendment applies only to Confederate soldiers and requires a prior conviction for “insurrection” (not a statute). This is so preposterous I don’t know how to address it. First, the 14th Amendment is not just about the Civil War, and again, “insurrection” isn’t a specific criminal cause of action that can result in a statutory conviction before someone is barred from future office. Castor says this issue is a slam dunk, and it is: in the opposite direction from the way he’s arguing.
Castor then follows this up by saying that the only reason the impeachment is happening is because the Democrats are afraid of Donald Trump running in 2024.
This is one of the defenses I said Trump would use in my article on the subject here at Proof.
(3:35PM) Castor’s defense would have been appropriate in the late 1990s, when the Republican Party gleefully impeached President Bill Clinton for lying about receiving oral sex during a sexual affair. It is a wildly offensive defense following an attempted coup and the death of seven people in an armed insurrection President Donald Trump incited and then cheered.
(3:29PM) Okay, so here’s how I understand Castor’s argument: Trump was so clearly exercising his First Amendment rights on January 6 that this impeachment is a purely partisan action that never should have happened. If (Castor indicates) the Senate convicts, it will tell radical partisans across the country that they can push for their representatives in Congress to impeach every president of a different party. So Castor is saying that this process is so beyond the pale that it could lead to additional frivolous impeachments. He says Democrats merely see Trump as a “political danger” because he is “capable” and “article”, and implies that that’s what motivates them. This is intended to dovetail with what GOP senators already want to argue: this is “political theater.” But as I said earlier, this is not a defense of any kind to the charges against Trump.
(3:26PM) Castor seems to be arguing that all incitement statutes are unconstitutional? He doesn’t even seem to acknowledge that the First Amendment isn’t absolute, because speech can become criminal under a variety of circumstances. This is so odd.
(3:24PM) Does Castor understand that what he’s supposed to be arguing today is that the trial is unconstitutional? He’s starting Trump’s substantive defense today, but today is not scheduled for what he’s doing. Today is supposed to be for an argument about whether this trial can even occur. I recognize the House managers did a little of this too, but Castor is the one arguing (not the managers) that this trial can’t even happen legally. Why hasn’t he even said that once yet?
(3:22PM) Okay, now he’s just mentioned the First Amendment. So I think he’s moving toward saying that Trump was exercising his free speech rights on January 6.
(3:20PM) I’m not being sarcastic or playing around—I have no idea what Castor is doing. He’s rambling about our Founders and… uh, state pride? I… I don’t know. I just don’t know. None of this makes any sense.
(3:18PM) When I figure out where Castor is going with this, I’ll let you know. He’s talking about things that have nothing to do with Trump, January 6, or Trump’s defense.
(3:12PM) Castor is focusing on… uh… I’m not quite sure. “States’ rights,” in a sense? As I said, this is a very Southern criminal defense effort, which means it takes a really, really long time to develop.
(3:10PM) This is what you’d call a very… uh… Southern defense. I don’t necessarily mean that as a critique. It’s just that Castor’s is, so far, a very folksy, slow, narrative-based, ancedote-based defense, disconnected from “black-letter” law and the grand scope of the Great Themes or history.
(3:06PM) Castor begins as he must: calling what happened on January 6 terrible and traumatizing and not something anyone on Trump’s defense team will defend. He notes that the defense team wants all arrested insurrectionists to face punishment to the full extent of the law. The irony here is that it’s not at all clear that his client—Donald Trump—agrees with this view of either January 6 or those who stormed the Capitol. What he seems to be pivoting toward is that after a tragedy, “passion and rage” causes us to want retribution. The implication is that this impeachment trial is about searching in vain for a scapegoat and landing on Trump.
(3:03PM) Bruce Castor Jr., one of the two leads of Trump’s legal team, begins by calling January 6 a “terrible day” and calling Raskin’s presentation “outstanding.”
(3:00PM) Manu Raju of CNN reports that no Republican senators he’s spoken to have changed their mind about anything after Raskin’s presentation. Keep in mind that this is not because of Raskin’s presentation or the strength of the House managers’ case—it’s because most of the GOP caucus in the Senate is deciding this case on the basis of politics exclusively. The position of that caucus—that Congress cannot act in response to a January insurrection—is simply indefensible and, it must be said, un-American.
(2:52PM) I expect it will be difficult to “livestack” Trump’s defense, as so much of it will depend on lies about Trump’s January 6 speech and irrelevant references to one-off comments by Democrats in TV interviews under totally different circumstances at various points in recent American history. It’s the ultimate “Look at that bird!” distraction defense. For those who want to subscribe to Proof for $5/month—the lowest subscription rate Substack allows columnists to charge—you can read my epic deconstruction of Trump’s January 6 speech (I say “epic” simply because of its length and comprehensiveness) at these three links: Part I, Part II, Part III.
So please know that if, during my livestack of Trump’s defense, I say “this is untrue” about various claims the defense team makes about Trump’s January 6 speech, it’s because I’m referencing my breakdown of that speech at the three links above—the longest such deconstruction (to my knowledge) offered by any media outlet in the United States. In a livestack setting, though, it’s not possible for me to do more than point everyone to the links above, as the lies will simply come too fast and furious from Trump’s defenders for me to quote every part of Trump’s January 6 speech that contradicts the claims about it being made by the president’s legal team right now.
(2:41PM): Raskin closes with this: “History does not support a ‘January exception’ in any way. So why would we invent one for the future?” What a great closing line. The Senate is now in recess for ten minutes. After the break, Trump’s defense team will present.
(2:37PM) As a former criminal defense attorney, I’ll say that this House presentation has been excellent. Raskin is ending their presentation for today on exactly the right note: with a personal narrative of January 6. Because this is personal for every Senate juror, and this calls that fact strongly to mind for them. This is exactly how a great criminal defense attorney would end a presentation that otherwise could seem dry and mired in fusty accounts of constitutional history. Rep. Raskin is getting very emotional at points in his presentation, understandably. There are tears. This is quite moving.
(2:32PM) Cicilline has concluded, and now Rep. Raskin is offering his closing on the “constitutionality” issue. He is talking about how “personal” the trial is for so many different parties—members of Congress, Congressional staffers, and so on. Raskin is talking about how his daughter was with him on January 6, and how his family had just buried his son (who died in unrelated circumstances) the day before.
(2:30PM) Cicilline makes the critical “but for” point (paraphrase hereafter): “Does anyone doubt that ‘but for’ Donald Trump, the attack on the Capitol wouldn’t have happened?” It’s a great point. No one thinks the January 6 mob would have spontaneously come to Washington, and then marched on the U.S. Capitol, and then breached it, if they hadn’t been asked to Washington by the president, and sent to the Capitol by the president, and incited by the president.
(2:25PM) Cicilline is now addressing Trump’s “look at the content of my speech” defense, which both mischaracterizes the content of his speech and also makes the mistake Cicilline points out: presumes that the Article of Impeachment is based on just one speech, rather than Trump’s words and conduct before, during, and after the insurrection. Cicilline notes that Trump’s lawyers will try to point out that others in office have made incendiary comments in the past; unfortunately, they weren’t president, the context was different, the words were different, and the words and actions surrounding them were different. It’s hard to underscore how weak Trump’s defense is. The only reason this isn’t universally understood and accepted is that this is fundamentally a political trial, so Republican senators will vote for their man no matter what.
(2:23PM) Cicilline is now addressing Trump’s “due process” argument, which is bunk because he doesn’t have due process rights at the impeachment phase, only at the trial phase. The House managers asked Trump to come testify at his trial—and he refused. Cicilline says he likely refused because Trump’s lawyers “knew what would happen” if Trump testified in his own defense, namely that he would quickly inculpate himself.
(2:21PM) Cicilline is now addressing Trump’s equally preposterous “Chief Justice” argument: that a Senate trial can’t be held unless Chief Justice John Roberts presides. This is, of course, false. Roberts is not presiding because the Chief Justice only presides if a sitting president is being tried. When it is not a sitting president being tried, Senate rules establish that the president pro tempore of the Senate (in this case Pat Leahy of Vermont) presides. That’s what’s happening right now—exactly as it should.
(2:17PM) Cicilline is now addressing Trump’s preposterous “bill of attainder” defense, which argues that a post-impeachment conviction is a Congressional act targeted uniquely and impermissibly against a “private citizen.” But “President Trump was impeached while in office for conduct in office”, Rep. Cicilline notes, adding that the Constitution uses the words “person” and “party” for who can be impeached—not distinguishing between presidents and former presidents.
(2:15PM) Cicilline is focusing on Trump’s own words during the insurrection, which were horrifying. They honored the insurrectionists and their actions and repeated his Big Lie about the election. “He celebrated their cause. He validated [them]”, Cicilline says.
(2:13PM) Note that you can watch the impeachment trial live at C-SPAN at this link.
(2:10PM) Neguse hit it out of the ballpark, and may have just made himself even more of a Democratic up-and-comer—and even a star. Rep. David Cicilline (D-RI) is now speaking.
(2:05PM) Oh my god—humiliating. Neguse reveals that one of the chief legal scholars quoted by Trump’s team, Brian Kalt, says that Trump’s team misquoted him and put him forward as having the opposite position of the one he has. This is the sort of thing that, before a judge, would end your credibility as an attorney with that jurist. This simply isn’t acceptable in legal practice in America. {Note: Still worse, the way in which Trump’s team misquoted Kalt reveals that they didn’t even read the article of his they cited.}
(2:03PM) I’ll remind everyone that Trump and Trumpists love talking about protecting the United States Constitution. Well, now you have every notable attorney in America but one (J. Michael Luttig) arguing that Trump’s defense is an obscenity in the face of the Constitution, and here’s the entire Republican Party now in favor of undermining the Constitution in this way.
(1:59PM) Neguse notes that if Trump’s bizarre defense is permitted, a wrongdoer president could control their own fate: they could avoid the “disqualification” penalty in the Constitution by resigning office seconds before they’re convicted in the Senate. Yet again, he is correct in this.
(1:57PM) Neguse argues—correctly—that the Constitution contains no exception in cases of impeachment: the Senate tries “all” impeachments. He says the Constitution is “exceptionally clear” on this point, so much so that Trump’s attorneys didn’t really even argue it in their 75-page final brief. Neguse notes that the “disqualification” punishment the Constitution provides for is a “separate” punishment from removal, and applies to former officials as much as it does to current ones. He is, again, correct, per almost every lawyer in America of any note.
(1:50PM) Neguse is now running through all the famous conservative lawyers who say this trial is constitutional. One—Ronald Reagan’s Solicitor General, Charles Fried—was my constitutional law professor at Harvard Law School. Neguse is also noting that the lawyer GOP senators are now listening to on this issue, George Washington University law professor Jonathan Turley, has previously said that a trial of this sort is constitutional. He has now changed his view for nakedly political purposes.
(1:48PM) What’s remarkable, as Neguse notes, is that in the Belknap Case during the Ulysses S. Grant administration, the impeachment occurred post-term, and the trial. The precedent suggests that the House could’ve even impeached Trump post-presidency and it would have been fine. But that’s not what happened: Trump was impeached while he was still president.
(1:46PM) Neguse explains that in fact America’s first-ever impeachment trial—of William Blount—was of a former official. Thomas Jefferson presided. Even Blount didn’t claim former officials couldn’t be tried.
(1:42PM): Now Rep. Joe Neguse of Colorado is presenting for the managers. Like Raskin, he is an attorney.
(1:38PM) Raskin is now going through the history of the Impeachment Clause, which makes perfectly clear that the Founders expected a trial like this one could happen. He notes that there was precedent at the time establishing this thinking as the “norm.” One state, Delaware, the first state to enter the Union, even “confined impeachments to only former officials.”
(1:34PM) Raskin says that, far from allowing a “January exception,” the Senate must acknowledge that it is in the January following an election loss that a sitting president is the most likely to commit an impeachable act—even an insurrection. He also notes what so many GOP senators seem to want to forget: the House impeached Trump while he was still president. He notes that the Constitution says the Senate has the power to try “all” impeachments, with no exception made for a president impeached while in office and then tried thereafter. He notes that Charles Fried, Reagan’s Solicitor General, and Steven Calabresi, the co-founder of the Federalist Society—as well as many other prominent conservative legal scholars—agree the trial is constitutional.
(1:31PM) The video was horrifying. Just horrifying. You owe it to yourself to find a way to watch it. Two things I want to note: (1) the insurrectionists were hunting for members of Congress to take hostage or harm; (2) the chants during the insurrection were chants the insurrectionists had gotten from Trump’s rally (including “Stop the Steal!”)
(1:22PM) This video intersperses the calmness in the Senate chamber with the absolute mayhem of what was happening outside.
(1:20PM) I have watched hours of insurrection video and not seen the videos the House managers are showing now—which are incredible. It’s clear they have evidence many Americans will not have seen.
(1:18PM) Raskin says that if Trump isn’t convicted there will be more insurrections just like January 6. He is now playing a video of what happened on January 6 to remind GOP senators of what they are promising America if they vote to acquit. He is showing, via the video, how Trump’s speech directly impelled his supporters to march on the Capitol.
(1:16PM) “It’s all about the facts”, says Raskin. He says the prosecution will rest on facts and not on dry, fusty constitutional lectures. He is arguing that Trump’s defense would create a “January exception” to the Constitution of the United States—meaning, a president can’t be impeached for what he does in his last weeks in office.
(1:15PM) Rep. Jamie Raskin of Maryland, who follows this feed, will open for the House managers. He will argue that trying a former president is constitutional—which nearly every lawyer agrees it is. Raskin is a former constitutional law professor.
(1:11PM) A point of pride for Proof is that at least half of the House managers now prosecuting the former president follow the Twitter feed (@sethabramson) to which this Substack is connected, and therefore can be assumed to have accessed Proof at some point. I take the responsibility that comes with this seriously, as I hope is shown by the journalism on the January 6 insurrection already published at this site (click on the word “Proof” at the top menu to see all prior posts on this site).
(1:10PM) Here’s the list of House managers (i.e., the prosecutors in this trial):
(1:08PM) You can read the House impeachment managers’ response to Trump’s final (75-page) pretrial brief here. Trump basically focused on two defenses, though we may hear more during the trial itself: (1) it’s unconstitutional to try a former president (which is false), and (2) incitement is protected by the First Amendment (which is false). These defenses are laughable and are only being run because Trump has decided he already has the votes to win this trial. We’ll see if he’s right. As I’ve written before at Proof in a lengthy essay, we learned during the first impeachment trial of Donald Trump that senators will largely vote based on what public polling within their party says their voters want.
(1:07PM) The Senate is now voting on the rules for the trial. The rules, which Schumer agreed upon before the trial with minority leader Mitch McConnell of Kentucky, will pass overwhelmingly—and perhaps even unanimously or close to that.
(1:05PM) Senator Chuck Schumer of New York, the majority leader, notes that these are the most serious charges ever brought against a U.S. president. He is correct. Indeed, it’s not even close. We have never seen an impeachment trial like this. Ever.
(12:59PM) Here at Proof, I surveyed (for full subscribers to the website) the twelve defenses we may hear from Trump and his defenders during his second impeachment trial. Incredibly, most GOP senators have decided to go with Defense #10: “Trump is the victim of vengeful Democrats angry at his presidency.” That defense was ranked 10th out of the twelve possible defenses for factual and legal utility and accuracy because it’s not actually a defense for anything. It’s just rhetoric. It only becomes a defense if you can actually show the equivalent of prosecutorial misconduct, which GLOP senators cannot—as they cannot argue that the insurrection wasn’t serious, that Trump wasn’t arguably one of its causes, and that if incitement to insurrection had indeed been committed, it would be impeachable. In other words, every time you hear the GOP say that Democrats are engaged in “political theater,” realize that the response can only be, “Okay, but what is Trump’s defense to the charge against him?” Senator Marco Rubio of Florida has been the worst offender in this respect, followed by Kevin Kramer of North Dakota.
(12:58PM) It is remarkable to me how many GOP senators weren’t able to keep their mouths shut prior to this trial on the subject of how they will vote. The jurors’ oaths require them to listen to the evidence—some of which they never will have seen before—with an open mind. Yet many in the GOP caucus couldn’t help trying to grab as much political capital and Trumpist favor as possible by declaring pretrial how they will vote. It’s despicable, an abdication of their duty, and so thoroughly unnecessary.
(12:57PM) CNN has tallied ten senators who weren’t in the Senate at Trump’s first impeachment trial a year ago: six Democrats and four Republicans.
(12:55PM) CNN notes that it is likely that all 50 Senate Democrats will vote for conviction, and 5 GOP senators voted to at least allow the trial to go forward when Sen. Rand Paul of Kentucky pushed that issue to a vote a week ago. But CNN also indicates that two retiring senators, Rob Portman of Ohio and Richard Burr of North Carolina, could be targets for the Democrats. That still wouldn’t get the House managers to the 67 votes for conviction they need.
(12:52PM) Today’s focus is a four-hour argument on the constitutionality of trying a former president in the Senate after he was impeached while he was still president. Understand that legally this is more or less a settled question: the trial is legal. The nonpartisan Congressional Research Service has already declared that the vast weight of legal opinion concludes that the Founders did not intend a president to be able to engage in misconduct in the final weeks of his presidency without facing one of the two punishments laid out in the Constitution: being barred from future office. Well-respected conservative attorney Charles Cooper made this argument yesterday, noting that this punishment can only be applied to former presidents, so it would be nonsensical to say you can’t try former presidents.
(12:50PM) Per Politico, the House managers will accuse Trump of blaming his supporters for things he incited. It’s an interesting point: that Trump has green-lit a defense in which the president is fundamentally attacking his own supporters as animals whose innate badness and penchant for criminality has nothing to do with him.
(12:45PM) One of the things to watch for today is, of course, GOP hypocrisy—comparing how GOP senators responded on January 6 to what they’re saying now, or how GOP senators responded to Trump’s impeachment trial a year ago, or (in some cases) what they said about Clinton’s impeachment trial in the late 1990s.
(12:35PM) A decision on witnesses won’t be made until after the Q&A period at the end of the argument allotments for each side. The House managers will inform the Senate on whether they want witnesses, and if they do, the Senate will vote on it.
(12:34PM) If you haven’t read the Article of Impeachment for Incitement to Insurrection, the New York Times has it here.
(12:33PM) Some wonder whether the fact that the Article of Impeachment mentions the 14th Amendment means that, if Trump is acquitted, Democrats will move to take a vote under Section 3 of the 14th Amendment to bar Trump from future office. That vote, unlike a vote at trial, would only require a majority vote—and Democrats control the Senate with 51 votes. {To convict Trump, 67 votes are needed in the Senate; if he were to be convicted, a majority vote could bar him from holding office in the future. A vote under Section 3 of the 14th Amendment would be a different tactic entirely, and only require a majority vote without a supermajority vote preceding it, as in the trial.}
(12:32PM) NBC News reports that Trump has just added another member to his legal team mere hours before his trial starts. I have to assume this is unprecedented.
AS a follower of yours on twitter for a few yrs now,I learn about the legal world from you because I am a retired RN without any legal experience . I have read all your books . Love them. Your livestack review of the Senate events today was BRILLIANT!!! thank you and excited to follow your livestack on WED for continued Senate Events. Debra Retired RN in Oregon.
If my Legal Brain, not enriched by years of attaining a JD, is nearly exploding over the "arguments" and circular logic the "Defense" is using, I can only imagine the deep pain You must be experiencing!!
Thanx for All You are Doing 😊