Channel 1 Los Angeles
2/10/2021
The Journal
If there is no objection, the Journal of proceedings of the trial are
approved to date.
I ask the Sergeant at Arms to make the proclamation.
The Acting Sergeant at Arms, Jennifer A. Hemingway, made the
proclamation as follows:
Hear ye! Hear ye! All persons are commanded to keep
silence, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the Article of
Impeachment exhibited by the House of Representatives against
Donald John Trump, former President of the United States.
The PRESIDENT pro tempore. I note the presence in the Senate Chamber
of the managers on the part of the House of Representatives and counsel
for the former President of the United States.
Recognition of the Majority Leader
The PRESIDENT pro tempore. The Democratic leader is recognized.
Providing for Related Procedures Concerning the Article of Impeachment
Against Donald John Trump, Former President of the United States
Mr. SCHUMER. Mr. President, in a moment, I will call up a resolution
to govern the structure of the second impeachment trial of Donald John
Trump.
It has been agreed to by the House managers, the former President's
counsel, and is cosponsored by the Republican leader. It is bipartisan.
It is our solemn constitutional duty to conduct a fair and honest
impeachment trial on the charges against former President Trump--the
gravest charges ever brought against a President of the United States
in American history.
This resolution provides for a fair trial, and I urge the Senate to
adopt it.
Mr. President, I send a resolution to the desk on my behalf and that
of the Republican leader for the organizing of the next phases of this
trial.
The PRESIDENT pro tempore. The clerk will report the resolution by
title.
The legislative clerk read as follows:
A resolution (S. Res. 47) to provide for related procedures
concerning the article of impeachment against Donald John
Trump, former President of the United States.
Vote on S. Res. 47
The PRESIDENT pro tempore. The question is on agreeing to the
adoption of the resolution.
Mr. SCHUMER. I ask for the yeas and nays.
The PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll
[Rollcall Vote No. 56]
YEAS--89
Baldwin
Barrasso
Bennet
Blackburn
Blumenthal
Blunt
Booker
Boozman
Braun
Brown
Burr
Cantwell
Capito
Cardin
Carper
[[Page S590]]
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Daines
Duckworth
Durbin
Ernst
Feinstein
Fischer
Gillibrand
Graham
Grassley
Hassan
Heinrich
Hickenlooper
Hirono
Hoeven
Hyde-Smith
Inhofe
Kaine
Kelly
Kennedy
King
Klobuchar
Lankford
Leahy
Lujan
Lummis
Manchin
Markey
McConnell
Menendez
Merkley
Moran
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Portman
Reed
Risch
Romney
Rosen
Rounds
Sanders
Sasse
Schatz
Schumer
Shaheen
Shelby
Sinema
Smith
Stabenow
Sullivan
Tester
Thune
Tillis
Toomey
Van Hollen
Warner
Warnock
Warren
Whitehouse
Wicker
Wyden
Young
NAYS--11
Cruz
Hagerty
Hawley
Johnson
Lee
Marshall
Paul
Rubio
Scott (FL)
Scott (SC)
Tubervill
The PRESIDENT pro tempore. On this vote, the yeas are 89, the nays
are 11.
The resolution (S. Res. 47) was agreed to.
(The resolution is printed in today's Record under ``Submitted
Resolutions.'')
Order of Business
The PRESIDENT pro tempore. Pursuant to the provisions of S. Res. 47,
there shall now be 4 hours of argument by the parties, equally divided,
on the question of whether Donald John Trump is subject to the
jurisdiction of a Court of Impeachment for acts committed while
President of the United States, notwithstanding the expiration of his
term in that office.
Mr. Manager Raskin, are you a proponent or an opponent of this
question?
Mr. Manager RASKIN. I am a proponent.
The PRESIDENT pro tempore. Mr. Castor, are you a proponent or an
opponent of this question?
Mr. Counsel CASTOR. We are an opponent.
The PRESIDENT pro tempore. Opponent, thank you.
Mr. Manager Raskin, your party may proceed first. You will be able to
reserve rebuttal time, if you wish.
Mr. Raskin, you are recognized.
Managers' Opening Statements
Mr. Manager RASKIN. Thank you very much, Mr. President, distinguished
Members of the Senate. Good afternoon.
My name is Jamie Raskin. It is my honor to represent the people of
Maryland's Eighth Congressional District in the House and also to serve
as the lead House manager.
And Mr. President, we will indeed reserve time for rebuttal. Thank
you.
Because I have been a professor of constitutional law for three
decades, I know there are a lot of people who are dreading endless
lectures about the Federalist Papers. Please breathe easy, OK. I
remember well W.H. Audens' line that a professor is someone who speaks
while other people are sleeping.
You will not be hearing extended lectures from me because our case is
based on cold, hard facts. It is all about the facts.
President Trump has sent his lawyers here today to try to stop the
Senate from hearing the facts of this case. They want to call the trial
over before any evidence is even introduced.
Their argument is that if you commit an impeachable offense in your
last few weeks in office, you do it with constitutional impunity; you
get away with it. In other words, conduct that would be a high crime
and misdemeanor in your first year as President and your second year as
President and your third year as President and for the vast majority of
your fourth year as President you can suddenly do in your last few
weeks in office without facing any constitutional accountability at
all.
This would create a brandnew January exception to the Constitution of
the United States of America--a January exception. And everyone can see
immediately why this is so dangerous. It is an invitation to the
President to take his best shot at anything he may want to do on his
way out the door, including using violent means to lock that door, to
hang on to the Oval Office at all costs, and to block the peaceful
transfer of power.
In other words, the January exception is an invitation to our
Founders' worst nightmare. And if we buy this radical argument that
President Trump's lawyers advance, we risk allowing January 6 to become
our future.
And what will that mean for America? Think about it. What will the
January exception mean to future generations if you grant it? I will
show you.
(Video footage of 1-6-2021.)
Mr. TRUMP. We will stop the steal.
(Applause.)
Mr. TRUMP. Today I will lay out just some of the evidence
proving that we won this election and we won it by a
landslide. This was not a close election. And after this,
we're going to walk down--and I will be there with you--we're
going to walk down--we're gonna walk down to the Capitol.
(People chanting: ``Yeah. Let's take the Capitol.'')
Unidentified Male. Take it.
Unidentified Male. Take the Capitol.
Unidentified Male. We are going to the Capitol, where our
problems are. It's that direction.
Unidentified Male. Everybody in. This way. This way.
Mr. TRUMP. Tens of thousands of votes. They came in in
duffel bags. Where the hell did they come from?
(People chanting: ``USA.'')
Sergeant at Arms: Madam Speaker, the Vice President and the
United States Senate.
(Applause.)
Unidentified Male. Off the sidewalk.
Unidentified Male. We outnumber you a million to one out
here, dude.
Unidentified Male. Take the building. Take the building.
Unidentified Male. Let us in.
Unidentified Male. Fuck these pigs.
Unidentified Male. Join us.
Unidentified Male. Let us in.
Unidentified Male. That's enough. There's much more coming.
Mr. TRUMP. The Constitution says you have to protect our
country and you have to protect our Constitution. And you
can't vote on fraud. And fraud breaks up everything, doesn't
it? When you catch somebody in a fraud, you're allowed to go
by very different rules.
So I hope Mike has the courage to do what he has to do.
Unidentified Male. Talking about you, Pence.
Mr. TRUMP. When we fight, we fight like hell. And if you
don't fight like hell, you're not going to have a country
anymore.
Unidentified Male. Fuck DC police. Fuck you.
Mr. TRUMP. So we are going to walk down Pennsylvania
Avenue. I love Pennsylvania Avenue. And we are going to the
Capitol, and we are going to try and give our Republicans--
the weak ones because the strong ones don't need any of our
help. We are going to try and give them the kind of pride and
boldness that they need to take back our country.
Unidentified Male. Get the fuck out of here, you traitors.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. We are debating a step that has never been
taken in American history.
Unidentified Male. Fuck you, traitors.
Mr. McCONNELL. President Trump claims the election was
stolen. The assertions range from specific local allegations
to constitutional arguments to sweeping conspiracy theories.
(People chanting: ``USA.'')
Mr. McCONNELL. But my colleagues, nothing before us proves
illegality anywhere near the massive scale--the massive
scale--that would have tipped the entire election.
Unidentified Female. Our house, our house, our house, our
house.
(People chanting: ``Fight for Trump.'')
Unidentified Male. Fuck you, police.
Unidentified Male. Let's go. Let's go.
Officer GOODMAN. Second floor.
Unidentified Male. You are gonna beat us all? Are you gonna
beat us all?
Mr. LANKFORD. My challenge today is not about the good
people of Arizona.
The PRESIDING pro tempore. The Senate will stand in recess
until the call of the Chair.
Mr. LANKFORD. Thank you.
(People chanting: ``Woot, woot.'')
Mr. GOSAR. Madam--Mr. Speaker, can I have order in the
Chamber.
The SPEAKER pro tempore. The House will be in order.
Unidentified Male. Go, go, go.
The SPEAKER pro tempore. The House will be in order. OK.
(People chanting: ``Stop the steal.'')
(People chanting: ``Traitor Pence.'')
(People chanting: ``Stop the steal.'')
Unidentified Male. They are leaving. They are leaving.
(People chanting: ``Break it down.'')
Unidentified Male. Get down. Let's go. Come on. Where the
fuck are they?
(People chanting: ``No Trump, no peace.'')
Unidentified Male. Let's go. We need fresh patriots.
(People chanting: ``Traitors.'')
(People chanting: ``Fight for Trump.'')
Mr. TRUMP. There has never been a time like this where such
a thing happened, where they could take it away from all of
us--from me, from you, from our country. This was a
fraudulent election, but we can't play into the hands of
these people.
We have to have peace. So go home. We love you. You're very
special. You've seen what happens. You've seen the way others
are treated that are so bad and so evil.
[[Page S591]]
I know how you feel, but go home, and go home in peace.
(Audience chants: ``USA.'')
Your lies in your own cities, your own counties. Storm your
own capitol buildings. We take down every one of these
motherfuckers.
Hang them!
Mr. Manager RASKIN. Senators, the President was impeached by the U.S.
House of Representatives on January 13 for doing that. You ask what a
``high crime and misdemeanor'' is under our Constitution. That is a
high crime and misdemeanor. If that is not an impeachable offense, then
there is no such thing. And if the President's arguments for a January
exception are upheld, then even if everyone agrees that he is culpable
for these events, even if the evidence proves, as we think it
definitively does, that the President incited a violent insurrection on
the day Congress met to finalize the Presidential election, he would
have you believe there is absolutely nothing the Senate can do about
it--no trial, no facts. He wants you to decide that the Senate is
powerless at that point. That can't be right.
The transition of power is always the most dangerous moment for
democracies. Every historian will tell you that. We just saw it in the
most astonishing way. We lived through it. And you know what? The
Framers of our Constitution knew it. That is why they created a
Constitution with an oath written into it that binds the President from
his very first day in office until his very last day in office and
every day in between.
Under that Constitution and under that oath, the President of the
United States is forbidden to commit high crimes and misdemeanors
against the people at any point that he is in office. Indeed, that is
one specific reason the impeachment, conviction, and disqualification
of powers exist: to protect us against Presidents who try to overrun
the power of the people in their elections and replace the rule of law
with the rule of mobs. These powers must apply even if the President
commits his offenses in his final weeks in office. In fact, that is
precisely when we need them the most because that is when elections get
attacked.
Everything that we know about the language of the Constitution, the
Framers' original understanding and intent, prior Senate practice, and
common sense, confirms this rule.
Let's start with the text of the Constitution. Article I, section 2
gives the House the sole power of impeachment when the President
commits high crimes and misdemeanors. We exercised that power on
January 13.
The President, it is undisputed, committed his offense while he was
President, and it is undisputed that we impeached him while he was
President. There can be no doubt that this is a valid and legitimate
impeachment, and there can be no doubt that the Senate has the power to
try this impeachment. We know this because article I, section 3 gives
the Senate the sole power to try all impeachments. The Senate has the
power, the sole power, to try all impeachments. ``All'' means all, and
there are no exceptions to the rule. Because the Senate has
jurisdiction to try all impeachments, it most certainly has
jurisdiction to try this one. It is really that simple. The vast
majority of constitutional scholars who studied the question and
weighed in on the proposition being advanced by the President, this
January exception, heretofore unknown, agree with us, and that includes
the Nation's most prominent conservative legal scholars, including
former Tenth Circuit Judge Michael McConnell; the cofounder of the
Federalist Society, Steven Calabresi; Ronald Reagan's Solicitor General
Charles Fried; luminary Washington lawyer Charles Cooper, among
hundreds of other constitutional lawyers and professors.
I commend the people I named--their recent writings to you in the
newspapers over the last several days. And all of the key precedents,
along with detailed explanation of the constitutional history and
textual analysis, appear in the trial brief we filed last week and the
reply brief that we filed very early this morning.
I will spare you a replay, but I want to highlight a few key points
from constitutional history that strike me as compelling in foreclosing
President Trump's argument that there is a secret January exception
hidden away in the Constitution.
The first point comes from English history, which matters because, as
Hamilton wrote, England provided ``the model from which the idea of
this institution has been borrowed.'' And it would have been
immediately obvious to anyone familiar with that history that former
officials could be held accountable for their abuses while in office.
Every single impeachment of a government official that occurred
during the Framers' lifetime concerned a former official--a former
official. Indeed, the most famous of these impeachments occurred while
the Framers gathered in Philadelphia to write the Constitution. It was
the impeachment of Warren Hastings, the former Governor-general of the
British colony of Bengal and a corrupt guy. The Framers knew all about
it, and they strongly supported the impeachment. In fact, the Hastings
case was invoked by name at the convention. It was the only specific
impeachment case that they discussed at the convention. It played a key
role in their adoption of the high crimes and misdemeanors standard.
And even though everyone there surely knew that Hastings had left
office 2 years before his impeachment trial began, not a single
Framer--not one--raised a concern when Virginian George Mason held up
the Hastings impeachment as a model for us in the writing of our
Constitution.
The early State constitutions supported the idea too. Every single
State constitution in the 1780s either specifically said that former
officials could be impeached or were entirely consistent with the idea.
In contrast, not a single State constitution prohibite trials of former
officials. As a result, there was an overwhelming presumption in favor
of allowing legislatures to hold former officials accountable in this
way. Any departure from that norm would have been a big deal, and yet
there is no sign anywhere that that ever happened.
Some States, including Delaware, even confined impeachment only to
officials who had already left office. This confirms that removal was
never seen as the exclusive purpose of impeachment in America. The goal
was always about accountability, protecting society, and deterring
official corruption.
Delaware matters for another reason. Writing about impeachment in the
Federalist Papers, Hamilton explained that the President of America
would stand upon no better ground than a Governor of New York and upon
worse ground than the Governors of Maryland and Delaware. He thus
emphasized that the President is even more accountable than officials
in Delaware, where, as I noted, the constitution clearly allowed
impeachment of former officials.
And nobody involved in the convention ever said that the Framers
meant to reject this widely accepted, deeply rooted understanding of
the word ``impeachment'' when they wrote it into our Constitution. The
convention debates instead confirm this interpretation. There, while
discussing impeachment, the Framers repeatedly returned to the threat
of Presidential corruption aimed directly to elections, the heart of
self-government.
Almost perfectly anticipating President Trump, William Davey of North
Carolina explained impeachment was for a President who spared ``no
effort or means whatever to get himself reelected.''
Hamilton, in Federalist 1, said the greatest danger to republics and
the liberties of the people comes from political opportunists who begin
as demagogues and end as tyrants and the people who are encouraged to
follow them.
President Trump may not know a lot about the Framers, but they
certainly knew a lot about him.
Given the Framers' intense focus on danger to elections and the
peaceful transfer of power, it is inconceivable that they designed
impeachment to be a dead letter in the President's final days in office
when opportunities to interfere with the peaceful transfer of power
would be most tempting and most dangerous, as we just saw. Thus, as a
matter of history and original understanding, there is no merit to
President Trump's claim that he can incite an insurrection and then
insist weeks later that the Senate lacks the power to even hear
evidence at a trial, to even hold a trial.
The true rule was stated by former President John Quincy Adams when
he categorically declared:
[[Page S592]]
I hold myself, so long as I have the breath of life in my
body, amenable to impeachment by [the] House for everything I
did during the time I held any public office.
When he comes up in a minute, my colleague Mr. Neguse of Colorado
will further pursue the relevant Senate precedents and explain why this
body's practice has been supported by the text of the Constitution, and
Mr. Cicilline of Rhode Island will then respond to the fallacies
presented by the President's counsel. After these gentlemen speak, I
will return to discuss the importance--the fundamental importance of
the Senate rejecting President Trump's argument for the preservation of
democratic self-government and the rule of law in the United States of
America.
I now turn it over to my colleague, Mr. Neguse of Colorado.
Mr. Manager NEGUSE. Mr. President, distinguished Senators, my name is
Joe Neguse, and I represent Colorado's Second Congressional District
in the United States Congress.
Like many of you, I am an attorney. I practiced law before I came to
Congress, tried a lot of different cases, some more unique than others,
certainly never a case as important as this one, nor a case with such a
heavy and weighty constitutional question for you all to decide.
Thankfully, as Lead Manager Raskin so thoroughly explained, the
Framers have answered that question for you, for us, and you don't need
to be a constitutional scholar to know that the argument President
Trump asks you to adopt is not just wrong, it is dangerous. And you
don't have to take my word for it. This body, the world's greatest
deliberative body, the United States Senate, has reached that same
conclusion in one form or another over the past 200 years on multiple
occasions that we will go through. Over 150 constitutional scholars,
experts, judges--conservative, liberal, you name it--they
overwhelmingly have reached the same conclusion, that, of course, you
can try, convict, and disqualify a former President. And that makes
sense because the text of the Constitution makes clear there is no
January exception to the impeachment power; that Presidents can't
commit grave offenses in their final days and escape any congressional
response. That is not how our Constitution works.
Let's start with the precedent, with what has happened in this very
Chamber. I would like to focus on just two cases. I will go through
them quickly. One of them is the Nation's very first impeachment case,
which actually was of a former official.
In 1797, about a decade after our country ratified our Constitution,
there was a Senator from Tennessee by the name of William Blount, who
was caught conspiring with the British to try to sell Florida and
Louisiana. Ultimately, President Adams caught him. He turned over the
evidence to Congress. Four days later, the House of Representatives
impeached him. A day after that, this body, the United States Senate,
expelled him from office, so he was very much a former official.
Despite that, the House went forward with its impeachment proceeding
in order to disqualify him from ever again holding Federal office. And
so the Senate proceeded with the trial with none other than Thomas
Jefferson presiding.
Now, Blount argued that the Senate couldn't proceed because he had
already been expelled. But here is the interesting thing: He expressly
disavowed any claim that former officials can't ever be impeached. And
unlike President Trump, he was very clear that he respected and
understood that he could not even try to argue that ridiculous
position.
Even impeached Senator Blount recognized the inherent absurdity of
that view. Here is what he said:
I certainly never shall contend, that an officer may first
commit an offense, and afterwards avoid by resigning his
office.
That is the point. And there was no doubt because the Founders were
around to confirm that that was their intent and the obvious meaning of
what is in the Constitution.
Fast-forward 80 years later--arguably the most important precedent
that this body has to consider--the trial of former Secretary of War
William Belknap. I am not going to go into all the details, but, in
short, in 1876, the House discovered that he was involved in a massive
kickback scheme. Hours before the House Committee had discovered this
conduct, released its report documenting the scheme, Belknap literally
rushed to the White House to resign, tender his resignation to
President Ulysses Grant to avoid any further inquiry into his
misconduct, and, of course, to avoid being disqualified from holding
Federal office in the future.
Later that day, aware of the resignation, what did the House do? The
House moved forward and unanimously impeached him, making clear its
power to impeach a former official. And when his case reached the
Senate--this body--Belknap made the exact same argument that President
Trump is making today, that you all lack jurisdiction, any power, to
try him because he is a former official.
Now, many Senators at that time, when they heard that argument--
literally, they were sitting in the same chair as you all are sitting
in today--they were outraged by that argument--outraged. You can read
their comments in the Record. They knew it was a dangerous, dangerous
argument with dangerous implications. It would literally mean that a
President could betray their country, leave office, and avoid
impeachment and disqualification entirely. And that is why, in the end,
the United States Senate decisively voted that the Constitution
required them to proceed with the trial.
The Belknap case is clear precedent that the Senate must proceed with
this trial since it rejected pretrial dismissal, affirmed its
jurisdiction, and moved to a full consideration of the merits.
Now, Belknap ultimately was not convicted but only after a thorough
public inquiry into his misconduct, which created a record of his
wrongdoing. It ensured his accountability and deterred anyone else from
considering such corruption by making clear that it was intolerable.
The trial served important constitutional purposes.
Now, given that precedent that I described to you, given all that
that precedent imparts, you could imagine my surprise--Lead Manager
Raskin's surprise--when we were reviewing a trial brief filed by the
President in which his counsel insists that the Senate actually didn't
decide anything in the Belknap case. They say--these are not my words.
I will quote from their trial brief:
[It] cannot be read as foreclosing an argument that they
never dealt with.
Never dealt with? The Senate didn't debate this question for 2 hours.
The Senate debated this very question for 2 weeks. The Senate spent an
additional 2 weeks deliberating on the jurisdictional question. And at
the end of those deliberations, they decided decisively that the Senate
has jurisdiction and that it could proceed, that it must proceed to a
full trial.
By the way, unlike Belknap, as we know, President Trump was not
impeached for run-of-the-mill corruption, misconduct. He was impeached
for inciting a violent insurrection--an insurrection where people died
in this building, an insurrection that desecrated our seat of
government. And if Congress were just to stand completely aside in the
face of such an extraordinary crime against the Republic, it would
invite future Presidents to use their power without any fear of
accountability. And none of us--I know this--none of us, no matter our
party or our politics, wants that.
Now, we have gone through the highlights of the precedent, and I
think it is important that you know, as Lead Manager Raskin mentioned,
that scholars, overwhelmingly, that reviewed this same precedent have
all come to the same conclusion that the Senate must hear this case.
Let's go through just a few short examples. To start, all of us, I
know, are familiar with the Federalist Society. Some of you may know
Steven Calabresi personally. He is the co-founder of the Federalist
Society. Actually, he was the chairman of the board in 2019. He was the
first president of the Yale Federalist Society chapter board, a
position I understand Senator Hawley later held.
Here is what Mr. Calabresi has to say. On January 21, he issued a
public letter stating:
Our carefully considered views of the law lead all of us to
agree that the Constitution permits the impeachment,
conviction, and
[[Page S593]]
disqualification of former officers, including presidents.
And by the way, he is not the only one, as Lead Manager Raskin said--
President Reagan's former Solicitor General, among many others.
Another prominent conservative scholar known to many of you, again,
personally is a former Tenth Court of Appeals judge--my circuit--Judge
Michael McConnell. He was nominated by President George W. Bush. He was
confirmed by this body unanimously. Senator Hatch--many of you served
with--he had this to say about Judge McConnell, that he ``is an honest
man. He calls it as he sees it, and he is beholden to no one and no
group.''
Well, what does Judge McConnell have to say about the question that
you are debating this afternoon? He said the following:
Given that the impeachment of President Trump was
legitimate, the text makes clear that the Senate has power to
try that impeachment.
You heard Lead Manager Raskin mention another lawyer, Chuck Cooper, a
prominent conservative lawyer here in Washington. He has represented
former Attorney General Jeff Sessions and House Minority Leader Kevin
McCarthy. He issued an editorial just 2 days ago, very powerful,
observing that ``scholarship on this question has matured
substantially'' and that, ultimately, arguments that President Trump is
championing are beset by ``serious weaknesses.''
Finally, I have gone through a lot of scholars. I will finish on this
one. There is another scholar that I know some of you know and some of
you have actually spoken with recently. Up until just a few weeks ago,
he was a recognized champion--champion--of the view that the
Constitution authorizes the impeachment of former officials. And that
is Professor Jonathan Turley.
Let me show you what I mean. These are his words. First, in a very
detailed study, thorough study, he explained that ``the resignation
from office does not prevent trial on articles of impeachment.''
Those are Professor Turley's words. Same piece. He celebrated the
Belknap trial. He described it as ``a corrective measure that helped
the system regain legitimacy.''
He wrote another article--he has written several on this topic. This
one is actually a 146-page study, very detailed.
In that study, he said that the decision in Belknap was ``correct in
its view that impeachments historically had extended to former
officials, such as Warren Hastings,'' who you heard Lead Manager Raskin
describe.
In fact, as you can see, Professor Turley argued the House could
impeach and the Senate could have tried Richard Nixon after he
resigned. His quote on this is very telling: ``Future Presidents could
not assume that mere resignation would avoid a trial of their conduct''
in the United States Senate.
Finally, last quote from Professor Turley that ``no man in no
circumstance, can escape the account, which he owes to the laws of his
country.'' Not my words, not Lead Manager Raskin's words--Professor
Jonathan Turley's words. I agree with him because he is exactly right.
Now, a question one might reasonably ask after going through all
those quotes from such noted jurists and scholars: Why is there such
agreement on this topic? Well, the reason is pretty simple. It is
because it is what the Constitution says.
I want to walk you through three provisions of the Constitution that
make clear that the Senate must try this case.
First, let's start with what the Constitution says about Congress's
power in article I. You heard Lead Manager Raskin make this point, but
it is worth underscoring. Article I, section 2 gives the House ``sole
Power of Impeachment.'' Article I, section 3 gives the Senate the
``sole Power to try all Impeachments.''
Based on President Trump's argument, one would think that language
includes caveats, exceptions, but it doesn't. It doesn't say
``Impeachment of current civil officers.'' It doesn't say ``Impeachment
of those still in office.''
The Framers didn't mince words. They provided express, absolute,
unqualified grants of jurisdictional power to the House to impeach and
the Senate to try all impeachments--not some, all.
Former Judge McConnell, the judge that we talked about earlier, he
provides very effective textual analysis of this provision. You can see
it up here on the slide. I will just give you the highlight. He says--
and I will quote. This is Judge McConnell:
Given that the impeachment of Mr. Trump was legitimate, the
text makes clear that the Senate has power to try that
impeachment.
Now, again, here is what--it is pretty interesting to me at least. We
presented this argument in our trial brief, which we filed over a week
ago, where we laid it out step by step so that you could consider it
and so that opposing counsel could consider it as well.
We received President Trump's response yesterday, and the trial brief
offers no rebuttal to this point--none. In fairness, I can't think of
any convincing response. I mean, the Constitution is just exceptionally
clear on this point. Now, perhaps they will have something to say today
about it, but they did not yesterday.
There is another provision worth mentioning here because there has
been a lot of confusion about it. I am going to try to clear this up.
This is the provision on removal and disqualification. We all know the
Senate imposes a judgment only when it convicts. Up on the screen, you
will see article I, section 3, clause 7. With that in mind, the
language says that if the Senate convicts, the judgment ``shall not
extend further than'' removal and disqualification.
That is it. The meaning is clear. The Senate has the power to impose
removal, which only applies to current officials. And, separately, it
has the power to impose disqualification, which obviously applies to
both current and former officers. But it doesn't have the power to go
any further than that.
Now, as I understand President Trump's argument, they believe that
this language somehow says that disqualification can only follow the
removal of a current officer, but it doesn't. That interpretation
essentially rewrites the Constitution. It adds words that aren't there.
I mean, after all, the Constitution does not say ``removal from office
and then disqualification.'' 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.
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 was 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 into a command to do both or neither.
And just imagine the consequences of such an absurd interpretation of
the Constitution. 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 would have total control over whether they could ever be impeached
and, if they are, whether the Senate can try the case. If they want to
escape any public inquiry into their misconduct or the risk of
disqualification from future office, then it is pretty simple. They
could just resign 1 minute before the House impeaches or even 1 minute
before the Senate trial or they could resign during the Senate trial if
it is 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.
The third and final reason why President Trump must stand trial: the
provision of article I of the Constitution.
You will 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
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have written ``civil officers'' here. They did that elsewhere in the
Constitution. That would, ultimately, have limited impeachment trials
to current officials, but, instead, they used broader language to
describe who could be tried by the United States Senate.
So who could be put on trial for impeachment other than civil
officers? Who else could a ``person'' or a ``party'' be? Well, really,
there is only one possible answer: former officers.
And, again, that actually might explain why, during the Belknap
trial, Senator Thomas Bayard, of Delaware, who later became the
Secretary of State for 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. 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.
Just so we are 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 II, section 4. I am sure you will
see it when they present their arguments.
Their argument is that the language you will 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 is in article II, not
article I, 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, has concluded that this provision of the Constitution
that President Trump relies on ``cuts against'' his position--his
words--and that is because, as Cooper says, article II, section 4 means
just what it says. 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.
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