Senators are being sworn in Tuesday for the second impeachment trial of former President Donald Trump — a case in which the lawmakers will be acting as judge, jury and victim.
The swearing-in of all 100 senators for the trial is scheduled to take place in the afternoon and follows the delivery by the House impeachment managers Monday night of the article of impeachment against Trump for incitement of insurrection in the Capitol riot earlier this month.
The senators will be sworn in by Sen. Patrick Leahy, D-Vt., the president pro tempore of the Democratic-controlled Senate. Leahy is presiding over the trial instead of Chief Justice John Roberts because Trump is now a former president.
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Trump’s “former” status has led several Republicans to argue that he can’t be subjected to an impeachment trial, because the Constitution says “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
One proponent of that view, George Washington University law professor Jonathan Turley, was set to speak to Senate Republicans at a lunch ahead of the swearing-in on Tuesday. Turley, who testified against Trump’s first impeachment in the House, has said he is against the second impeachment as well, calling it “at odds with the language of the Constitution” because the trial is taking place with Trump no longer in office.
Sen. Rand Paul, R-Ky., meanwhile, said he planned to force a vote on the constitutionality issue Tuesday. “I think it’ll be enough to show that you know more than a third of the senate thinks that the whole proceeding is unconstitutional,” he said.
But Democrats say they have precedent on their side. While no former president has been tried by the Senate after leaving office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned.
And legal experts, such as Harvard law professor Laurence Tribe and University of Texas law professor Steve Vladeck, stress that the trial is constitutional because one of the considerations the Senate must make is whether to bar the subject of impeachment from future office.
Democrats note that Trump was impeached by the House while he was still in office, and maintain a trial is necessary to hold him accountable for what Senate Majority Leader Chuck Schumer, D-N.Y., called “the most despicable thing any president has ever done,” inciting a riot at the Capitol while a joint session of Congress was counting the Electoral College vote.
If Trump were to be convicted by a two-thirds vote, the Senate could then vote to disqualify him from holding office in the future.
“The only thing that I need to know is that, in the midst of an assault on our Capitol, where thousands of armed and angry rioting supporters of President Trump were beating Capitol Police officers in one case bludgeoning a Capitol Police officer to death, and breaking into the Capitol, and threatening the Congress, and trying to stop the certification of an electoral vote, at that moment, President Trump was gleeful and declined requests to dispatch the National Guard, and took no action to restrain his supporters, and made no effort to check on the safety of his own vice president or the leaders of Congress,” Sen. Chris Coons, D-Del., told MSNBC’s “Morning Joe” on Tuesday. “That alone to me is evidence enough to convict on the charge that was presented to the Senate yesterday,”
“To me, there has to be accountability, and (impeachment) is the accountability tool the Constitution gives us,” Coons said.
In an interview with Hugh Hewitt, Sen. Ted Cruz, R-Texas, straddled the differences of opinion, saying, “I actually think the question of whether an ex-president can be impeached is a close question. I think there are strong and serious Constitutional arguments on both sides of the question.”
But, Cruz added, “I think this impeachment is a mistake. I think it is petty and vindictive on the Democrats’ part, and I think they’re engaged in political retribution. And so I’m going to vote against conviction.”
While some senators have likened their role in the impeachment trial to jurors, they’re actually more than that. They can vote to overrule Leahy and make decisions about admissibility of evidence and witnesses.
Then-Chief Justice William Rehnquist, when he was presiding over the impeachment trial of Bill Clinton in 1999, noted, “The Senate is not simply a jury. It is a court in this case.”
In this particular trial, they are victims as well, after having to scramble for safety after a mob of Trump supporters stormed the Capitol on Jan. 6. Five people were killed in the mayhem, including a Capitol Police officer, Brian Sicknick.
The Senate trial is expected to begin the week of Feb. 8 under a deal struck between the parties. Senate Republicans had requested extra time to allow Trump’s lawyers to prepare.
The Democratic-controlled House approved the article of impeachment on Jan. 13 in a 232-197 vote; 10 Republicans sided against Trump, the most bipartisan vote on a presidential impeachment in history, doubling the five Democrats who voted to impeach Clinton.
Pete Williams, Frank Thorp V and Ginger Gibson contributed.
Source: | This article originally belongs to Nbcnews.com
