The U.S. Senate acquits Donald Trump of inciting insurrection
The fifth day of former U.S. President Donald J. Trump’s second impeachment trial yesterday was a topsy-turvy one, beginning with a surprise vote to hear witnesses. Next, the Senate found the 45th president not guilty of inciting insurrection. And finally, Republican House Minority Leader Mitch McConnell decried the "unconscionable behavior" of Trump, yet voted to acquit him because he said that the Senate does not have impeachment jurisdiction over a private citizen.
Ironically, the House impeached Trump while he was still in office on January 13. The Senate was in recess, and McConnell reportedly said that he would not call the legislative body back into session for a trial. Therefore, McConnell had the opportunity to hold the trial before Trump returned to private life but did not use it.
The vote was 57 guilty to 43 not guilty. Seven Republicans broke partisan ranks and voted against Trump. A two-thirds majority, or 67, was needed to convict the former president.
The trial was expected to end yesterday with a vote. However, new evidence threatened to prolong it.
Representative Jamie Raskin (Democrat-Maryland), the lead impeachment manager, requested permission to subpoena the witness, Congresswoman Jaime Herrera Beutler, (Republican-Washington) and her notes. The night before the Senate reconvened, he said that the congresswoman had reportedly said that she took “copious notes” of a telephone call that House Minority Leader Kevin McCarthy made to Trump during the Capitol siege.
McCarthy, (Republican-California), asked for help in squashing the riot and protecting the Capitol to which the Commander-in-Chief said, “I guess these people are more upset about the election than you are.”
The defense believed that the telephone call revealed Trump’s state of mind.
The four-hour Capitol siege on January 6 took the lives of five people, wounded 140 officers and endangered the lives of hundreds of legislators who ran and hid for their lives in the very building in which they held the trial. Two police officers committed suicide later that month.
Raskin said that the prosecution had presented “overwhelming evidence” that Trump had incited the siege, but he believed that the Congresswoman’s testimony “would put doubts to rest”. He suggested testimony via Zoom in less than an hour.
At the start of the day, the presiding officer, Senator Patrick Leahy, (Democrat-Vermont), had announced the allocation of two hours to be divided between the parties.
Michael van der Veen, a Trump defense lawyer, argued that the prosecution had not investigated the case.
“They did not put the work in, but if they want to have witnesses, I’m going to need at least 100 depositions, not just one. They said that President Trump was co-conspirator with (those arrested). That’s not true. . . . Do not handcuff me by limiting the amount of witnesses. I need to do the 9-11 type of investigation that (House Speaker) Nancy Pelosi (Democrat-California) called for already and now, at the last minute, they want to go back on that. I think that’s improper. We should close the case today. I only had one day to prepare for this thing . . . The House managers need to . . . not limit my ability to discover discover discover the truth. And that’s the president’s position, my position.
Raskin said:
“This is the proper time to call for witnesses.”
Van der Veen said, his voice rising:
“It’s been reported that Mr. McCarthy disclaims the rumors that have been built into this proceeding. This entire procedure is built on innuendo …
“Let me take my own advice and cool the temperature in the room a little bit.”
After a pause, the personal injury lawyer from Philadelphia continued:
“It’s not the things that were said on January 6. It’s not relevant to the legal issue. It doesn’t matter what happened after the insurgence. It’s a point in time. And the words explicitly say: commit acts of violence or lawlessness. And we don’t have that here. So, for the House managers to say we need to know what happened after . . . A Nancy Pelosi deposition needs to happen. A Kam—Vice President Harris deposition needs to happen. Not by Zoom but in my office in Philadelphia.”
There was laughter in the Senate chamber.
Van der Veen said:
“That’s civil process. I don’t know why you’re laughing.”
Leahy called for order.
Van der Veen said:
“I haven’t laughed at any of you.
“If this is about nothing else, this is about respect for our country, our Constitution and all the people who make it up. They (prosecution) felt pretty comfortable on Day 2 but were tested on Day 3. Now is the time to end this. Now is the time to vote your conscience.”
There was ensuing confusion about the vote. Leahy asked the senators to vote on the motion of allowing the subpoena of witnesses or documents.
The vote was 54 Yea 46 Nay.
The names of the senators who voted in the affirmative were read followed by those who voted in the negative. Four Republican senators voted in favor of witnesses: Susan Collins (R-Maine) Ben Sasse, (Rep-Nebraska), Lisa Murkowski, (R-Alaska) and Mitt Romney (R-Utah).
“I’d like to change my vote,” said Lindsay Graham (R-South Carolina), who became the fifth Republican to vote in favor.
The vote was now 55 Yea 45 Nay.
During this flurry, Senator Dan Sullivan, (Republican-Alaska) asked repeatedly what they had voted on. Was it on one witness or witnesses? Leahy said that it was not the time for questions. He said:
“Points of order are not allowed . . . as established standard procedures that we always follow.”
Clearly, what was not established was how to proceed in the trial. A quorum was called as the Senate negotiated the way forward. Then, a 45-minute break, which lasted longer, was announced in the Chamber.
When the Senate returned, the prosecution and defense agreed to insert a statement from Congresswoman Herrera Beutler’s about McCarthy’s telephone call to Trump rather than push for her testimony.
Herrera Beutler reportedly also called for others to come forward.
“To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time,” she said, according to CNN.
The defense and prosecution gave their closing arguments.
Representative Joe Neguse, (Democrat-Colorado), impeachment manager, whose parents were refugees from Eritrea in East Africa said:
“I am the son of immigrants like many of you. In 1986, this body considered a bill to override President Reagan’s veto to sanctions on South Africa. Two senators – one Republican and one Democrat – voted to override the veto. There are moments that transcend party politics. Senators, this is one of those moments.
“House members like me are not allowed on the Senate floor without express permission. This floor is sacred. It’s one of the reasons (we were appalled) to see them desecrated. They are held in such awe. . . . For some, there will be no end to the pain.
“I was struck by defense counsel’s continued references to hate. Martin Luther King said, ‘I decided to stick with love. Hate was too great a burden to bear.’ This trial was not born of hate. It was born of love of country.”
Michael van der Veen, Trump’s lawyer, said:
“No matter how much horrifying footage we see, that does not change the fact that Mr. Trump is innocent of the charge against him. The act of incitement never happened. No unbiased person could possibly believe that he was inciting violence.”
The defense’s weak case won the day. The defense insisted on narrowing the prosecution’s case to Trump’s speech to his followers on the day of the Capitol riot, even though the prosecution repeatedly said that it was Trump’s actions for months that led to the angry mob storming the Capitol to “stop the steal” of the November election. Indeed, the strength of the defense’s case did not matter.
What was shocking was Mitch McConnell’s excoriation of Trump’s actions after voting to acquit him. Before the reconvening of the trial, yesterday, McConnell, the most powerful Republican in the Senate, said that he would vote in this way.
“President Trump is practically and morally responsible for provoking the events of the day," said the Republican senator from Kentucky. "The people who stormed the building believed that they were acting on wishes of the president. . . . There was an intensified crescendo of conspiracy theories. . . . The unconscionable behavior did not end. By that afternoon, he was watching the same live television as the rest of us. A mob was assaulting the Capitol in his name, carrying his banners and screaming their loyalty to him. It was obvious. He was the only one. Former aides begged him to do something. The president did not act quickly. He did not do his job. He did not take steps to see order restored. Instead, he watched television happily, according to public reports, pressing his scheme to overturn the election.
“The president sent a further tweet attacking his own vice president. Members of the mob seemed to interpret this as further inspiration for lawlessness. He didn’t call right away for the riot to end. He didn’t tell the mob to depart even later. He kept praising the criminals.
“The defense tried to use the 74 million who voted for him as a human shield . . . against criticism. Anyone who decried him is accused of insulting 74 million. Seventy-four million did not invade the Capitol: hundreds of rioters did. Seventy-four million did not incite. One person did, just one.
“This body is not a moral tribunal. It can’t work backward. Impeachment is a narrow tool for a narrow purpose. It exists to secure the state against gross official misdemeanor, that is to protect the country from government office. If President Trump was still in office, I would have considered (voting against) him.
“The question is moot because President Trump is not eligible for conviction. Donald Trump was president when the House voted but not when the House chose to deliver the papers.
“After intense reflection, (I believe that the exhaustive) set of persons who can be legally impeached are the president, vice president and civil officers.
“He hasn’t gotten away with anything -- yet -- yet. We have a criminal justice system. I believe it was right not to grab power that the Constitution doesn’t give us. It’s a dispiriting time, but the Senate has done its duty. On January 6, we returned to our post and certified the election. We refused to continue a cycle of recklessness . . . We put our constitutional duty first.”
On Tuesday, the Senate voted 56 to 44 that the trial of the former president was constitutional, but that vote did not seem to enter into McConnell’s decision.
Later, House Speaker Nancy Pelosi blasted McConnell for his "disingenuous" speech, underscoring that it was not the House's choice to deliver the article of impeachment after Trump’s term, it was McConnell’s.
Trump released a statement, according to USA Today, shortly after the verdict:
“We have so much work ahead of us, and soon we will emerge with a vision for a bright, radiant, and limitless American future.”