Trump impeachment trial: Three key takeaways from an emotional first day of arguments

Senate must not establish a 'January exception' to Congress' impeachment power, managers argue

The second impeachment trial of Donald Trump commenced on Tuesday with an impassioned plea from DemocraticHouse managers that the former president must be held accountable for the nightmare of the 6 January riot at the Capitol.

The ex-president’s lawyers mounted a mostly procedural defence, arguing that the Constitution prohibits the Senate from putting former officials on trial.

The four-hour debate on the constitutionality of the trial kicked off a week of proceedings that are all but certain to ultimately result in the president’s acquittal, with most Senate Republicans indicating they have made up their minds not to penalise Mr Trump through the impeachment process.

Here are the three things you need to know from Day One of the second Trump impeachment trial.

1. Democrats denounce a ‘January Exception’ to impeachment

Laser-focused and obviously well-drilled, Democratic impeachment managers Jamie Raskin of Maryland, Joe Neguse of Colorado, and David Cicilline of Rhode Island presented an initial triptych on Tuesday of Mr Trump’s incitement of the Capitol insurrection, his delight as the mob was sacking the legislature, and the victory lap he took on Twitter when the dust had begun to settle.

The three managers’ speeches all converged on a central thesis: the Senate must not create a “January Exception” for impeachment by disqualifying itself from holding a former president accountable for actions taken in his final days in office. Impeachment represents Congress’ sole statutory check on a rogue president.

“[The Trump team’s] argument is that if you commit an impeachable offence in your last few weeks in office, you do it with constitutional impunity. You get away with it” Mr Raskin, the Democrats’ lead manager, said.

“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 brand new ‘January exception’ to the Constitution of the United States of America. A January exception.”

Such an exception would be the American founding fathers’ “worst nightmare,” Mr Raskin said, arguing that the framers of the Constitution knew the period right before the transfer of power from an incumbent president to his successor was the most vulnerable time for democratic governments.

Going beyond the logic of the Trump team’s defence, Mr Neguse and Mr Cicilline elaborated on the actual text of the Constitution as well as historical precedent, which they argued both support the practice of post-service impeachments.

The Constitution says “nothing” about former officials being immune from impeachment trials.

The Trump team’s argument to scrap the trial rests on the notion — widely discredited by constitutional scholars spanning the political spectrum — that the primary consequence of an impeachment conviction (removal from office) is a moot point for Mr Trump, who vacated the White House on 20 January.

Mr Neguse mocked Mr Trump’s lawyers for using portions of a 2001 paper from constitutional scholar Brian Kalt to support their claim that post-service impeachments are unconstitutional.

But, Mr Neguse continued, Kalt himself clarifies in that same paper that removal is “not the sole end of impeachment.” If an official is convicted, he or she can be barred from ever holding public office again.

Furthermore, Mr Kalt’s paper — the one cited by Mr Trump’s own lawyers — sides with the impeachment managers’ position that the Senate can conduct post-service impeachment trials.

The January exception is a “purely fictional loophole,” Mr Cicilline said during his portion of the opening argument.

Mr Neguse concluded his remarks: “Presidents can’t inflame insurrection in their final weeks and then walk away like nothing happened. And yet that is the rule that President Trump asks you to adopt. I urge you, we urge you, to decline his request, to vindicate the Constitution, to let us try this case.”

2. Managers invoke GOP authorities

Throughout their opening presentation, the Democratic impeachment managers appealed to conservative legal scholars and even the past statements of Republican senators to make their case.

“The vast majority of constitutional scholars, who’ve studied the [constitutionality] question and weighed in on the proposition being advanced by the President — this January exception — … agree with us,” Mr Raskin said.

“That includes the nation’s most prominent conservative legal scholars, including former 10th Circuit Judge Michael McConnell; the co-founder of the Federalist Society, Stephen Calabresi; Ronald Reagan’s Solicitor General, Charles Fried; [and] luminary Washington lawyer Charles Cooper,” Mr Raskin said, among “hundreds” of other preeminent American legal thinkers.

The Democrats’ opening presentation kicked off with a video reel chronicling the chaos at the Capitol on 6 January, splicing together publicly available clips from the very rioters who perpetrated the violence at the legislature that day.

The Democrats’ video also included a floor speech from January from Senate Minority Leader Mitch McConnell in which the Kentucky Republican condemned the attack on the Capitol and held Mr Trump responsible for having “fed lies” to the “mob” about the 2020 election results.

“They were provoked by the president and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government, which they did not like,” Mr McConnell says in the clip.

Congress had been in the process of certifying Joe Biden’s electoral victory from November.

3. Senators forced to relive a nightmare

An impeachment trial is fundamentally different from a criminal trial for several reasons.

Impeachment is an inherently political process. Whereas, the penalty for criminal conviction can include stripping a defendant of his liberty, his property, and even his life, an impeachment conviction results in banishment from office and potential prohibition from holding office in the future.

The Constitution does not outline any evidentiary standard for the Senate to consider during an impeachment trial, something a judge would typically hand down to a jury at a criminal or civil trial.

This second impeachment trial of Mr Trump is most extraordinary in that the senators sitting as the nominal “jury” are effectively their own judges and witnesses to the events and actions being prosecuted by the impeachment managers.

Reporters in the chamber noted visceral reactions to the Democratic impeachment managers’ harrowing 10-minute video compilation of the 6 January attack on the Capitol.

Democratic Senator Cory Booker of New Jersey placed his hands over his eyes during footage of a Capitol police officer firing a bullet into the neck of a woman, Ashli Babbitt, who was trying to climb through a window into the Speaker’s lobby at the House of Representatives, according to Politico reporter Andrew Desiderio. She was one of five people to die during the insurrection.

Several senators rubbed their eyes as the video showed a mob crushing Washington DC police officer Daniel Hodges inside a doorway.

Democratic Senator Joe Manchin of West Virginia reportedly shook his head during a clip of Mr Trump telling his supporters "we love you" as the insurrection was underway.

Around 2.30pm on Tuesday, USCP officer Eugene Goodman entered the Senate chamber where the trial was taking place. Mr Goodman is the officer who has been hailed as a hero for diverting dozens of protesters away from an entrance to the Senate floor as senators fled down a side stairwell.

The impeachment managers’ argument sought to stir raw emotions within the chamber, to remind senators that they were the targets of this attack inspired by Mr Trump.

During his portion of Tuesday’s presentation, Mr Cicilline quoted GOP Senator Lindsey Graham of South Carolina, who a day after the attack said: “They could have killed us all. They could've destroyed the government.”