Senate finds Trump impeachment trial constitutional on first day of proceedings

Two sources familiar with the former president's reaction to today's Senate proceedings described Mr. Trump as angry about his lawyers' lackluster performances.

One source said the president "didn't sound pleased" on phone calls with close associates.

Major Garrett and Arden Farhi

Following the vote to proceed with the trial against Mr. Trump, the Senate, as a court of impeachment, adjourned until 12 p.m. Wednesday.

The Senate deemed the impeachment trial to be constitutional in a vote to move forward with the trial. Although most Republicans voted to dismiss the trial, 44 Republicans voted that the Senate has the jurisdiction to hold a trial after a president has left office. 

The vote is an indication that there will probably not be enough votes to convict Mr. Trump, as 67 votes are required to find the president guilty. Senate Minority Leader Mitch McConnell was among the Republicans who voted to dismiss the trial.

Senators Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania joined all 50 Democrats in voting to uphold the constitutionality of the trial. 

David Schoen, a member of Mr. Trump's legal team, reiterated the former president believes the impeachment trial is unconstitutional and accused Democrats of seeking to disenfranchise the more than 70 million Americans who supported Mr. Trump's reelection bid.

"As a matter of policy, it is wrong as wrong can be for all of us as a nation," Schoen said of the trial.

He claimed that moving forward with the proceedings against Mr. Trump will not heal the nation from the events of January 6, but rather further widen the political divide.

The trial, Schoen said, is "a chance by a group of partisan politicians seeking to eliminate Donald Trump from the American political scene and seeking to disenfranchise 74 million plus American voters and those who dared to share their political beliefs and vision of America."

Schoen called the constitutional theory put forth by the impeachment managers "radical" and "unprecedented," and warned adopting it would make future elected officials vulnerable to impeachment long after they've left office.

"They're willing to sacrifice our national character to advance their hatred and their fear that one day, they might not be the party in power," he said.

Schoen also played video clips from previous years of Democrats calling for Mr. Trump's impeachment and recited comments from Republicans who warned against proceeding with a "rushed" impeachment process.

In an attempt to demonstrate the speed with which House Democrats acted to impeach Mr. Trump, he noted the House spent more time holding the adopted article than it did on the process before approving it.

The delay in the House sending the article to the Senate, he said, "constitutes a lapse or waiver of jurisdiction here, for Mr. Trump no longer is the president."

"The institution of the presidency is at risk unless a strong message is sent by a dismissal of the article of impeachment," Schoen said.

While the article was not delivered to the Senate until January 25, following the House's vote January 13 that the Senate would not begin a trial until January 19 at the earliest, one day before the inauguration. He also declined to consent to calling the Senate back early from its recess under emergency authorities.

Castor admitted in his arguments something Mr. Trump hadn't been willing to acknowledge — that Mr. Biden's victory in the election reflected the will of the people. Castor did not mention that Mr. Trump spent two months falsely claiming he won the election.

Castor made the comment as he tried to make the case that the people will be able to select their next president in 2024, just as they did in 2020. 

"The reason that I am having trouble with the argument is, the American people just spoke. And they just changed administrations," Castor said. "The people are smart enough, in the light most favorable to them, they're smart enough to pick a new administration if they don't like the old one. And they just did." 

"The people get tired of an administration they don't want, and they know how to change it. And they just did. So why think that they won't know how to do it in 2024 if they want to?" Castor said. 

Castor also admitted something unusual: The president's legal team "changed" their presentation because the House presentation was so "well done." 

Bruce Castor Jr., one of the attorneys representing Mr. Trump, was the first to step up to speak on behalf of the former president, and offered a discursive monologue that addressed few of the central constitutional questions at hand.

Castor began by giving a nod to the House impeachment managers' presentation, calling it "outstanding" and recognizing lead impeachment manager Representative Jamie Raskin for the loss of his son.

"I thought they were brilliant speakers and I loved listening to them," Castor said at one point.

Castor went on to say Mr. Trump's attorneys will only denounce the violence and loss of life on January 6 in the strongest terms possible, calling the loss of life "horrific."

Castor called it a "natural reaction of human beings" to demand consequences for such a tragedy. He also commended law enforcement for responding to protect the Capitol.

"It's natural to recoil. It's an immediate thing. It comes over you without your ability to stop it, the desire for retribution," Castor said. 

After that, Castor went on a lengthy tangent about the greatness of senators, the history of the Roman Senate, the legal foundations of the Constitution, the importance of free speech and more.

Castor did not spend any significant amount of time defending Mr. Trump's words and actions in his first remarks.

Concluding the House managers' argument in favor of holding the trial, Raskin offered emotional and personal testimony of his experience in the U.S. Capitol on January 6 as he implored senators to allow the trial to proceed and hold Mr. Trump accountable for his conduct.

"Senators, this cannot be our future. This cannot be the future of America," he said. "We cannot have presidents inciting and mobilizing mob violence against our government and our institution because they refuse to accept the will of the people under the Constitution of the United States."

Raskin recalled his daughter, Tabitha, and son-in-law, Hank, accompanying him to the Capitol the day of the assault, one day after they buried his son, Thomas, who died in December at the age of 25. The Maryland congressman said he remembered hearing pounding on the doors outside the House chamber after rioters breached the Capitol, calling it the "most haunting sound I ever heard, and I will never forget it."

House members, he said, called their loved ones and removed their pins identifying them as lawmakers in an effort to protect themselves from the violent mob should they come face-to-face.

Raskin said he apologized to Tabitha, 24, when they were reunited after the attack, and fought back tears as he recalled her telling him she did not want to return to the Capitol again.

"Of all the terrible, brutal things I saw and I heard on that day, and since then, that one hit me the hardest, that and watching someone use an American flag pole, the flag still on it, to spear and pummel one of our police officers, ruthlessly, mercilessly, tortured by the pole with the flag on it that he was defending with his very life," he said. 

In closing, Raskin urged the Senate to allow the trial to proceed.

"History does not support a January exception in any way, so why would we invent one for the future?" he said.

Congressman David Cicilline, a Democrat from Rhode Island and an impeachment manager, anticipated arguments by Mr. Trump's lawyers in his presentation on the Senate floor. He said the president's lawyers would likely play video of Democratic politicians using inflammatory language.

"That's a gimmick, it's a parlor game, meant to inflame partisan hostility and play on our divisions," Cicilline said. He explained that Mr. Trump was not impeached for his words alone, but because he incited an insurrection.

He said Mr. Trump's lawyers would try to outline "some kind of equivalency" to the words of Democrats and the former president. But Cicilline argued that Mr. Trump had been stoking outrage for weeks by promoting falsehoods about the election.

"Let me be crystal clear: President Trump was not impeached because the words he used, viewed in isolation without context, were beyond the pale. Plenty of other politicians have used strong language, but Donald J. Trump was president of the United States," Cicilline said.

Senator Patrick Leahy, a Democrat from Vermont, sent his Senate colleagues a letter ahead of the start of the impeachment trial and pledged to do conduct the proceedings against Mr. Trump with fairness to all parties.

"My intention and solemn obligation is to conduct this trial with fairness to all," Leahy told his fellow senators.

The longest-serving senator, Leahy is the president pro tempore of the Senate and was tasked with overseeing the trial in the absence of Chief Justice John Roberts.

"As many of you know, I did not ask to preside over this trial," Leahy wrote. "Yet while I occupy the constitutional office of the President pro tempore, it is incumbent upon me to do so."

The Vermont Democrat detailed how he intends to conduct Mr. Trump's trial, including by adhering to the Constitution and applicable Senate rules, precedent and governing resolutions. Leahy wrote he plans to consult with the Senate parliamentarian and follow Senate precedent if a motion, objection, request or application related to the body's procedure is raised. Constitutional questions will be submitted to the full Senate for a vote, he said. 

"As have past presiding officers, I will enforce the Senate rules and precedents governing decorum and do what I can to ensure this trial reflects the best traditions of the Senate, consistent with the oath each senator took to do impartial justice according to the Constitution and laws," he said.

To bolster the House's argument that the Senate has the authority to try Mr. Trump even though he is out of office, Congressman Joe Neguse, a Democrat from Colorado and an impeachment manager, detailed the impeachments and corresponding trials of past elected officials who were out of office when they were tried.

Neguse raised the proceedings in both the House and Senate of former Senator William Blount in 1798 and former U.S. Secretary of War Howard Belknap in 1876.

"The Senate must hear this case," he said 

Neguse also cited public comments from notable conservative scholars and jurists, including Federalist Society cofounder Steven Calabresi, former 10th U.S. Circuit Court of Appeals Judge Michael McConell and lawyer Chuck Cooper, who argued the Senate has the authority to hold the trial.

The Colorado Democrat cited three provisions in the Constitution that he said make clear holding the trial is permissible. 

"The framers didn't mince words," Neguse said. "They provided express, absolute, unqualified grants of jurisdictional power to the House to impeach and to the Senate to try all impeachments. Not some. All."

Neguse said the arguments put forth by Mr. Trump's legal team claiming the trial is unconstitutional don't comport with the text of the Constitution.

"Honestly, it is hard to imagine a clearer example of how a president can abuse his office, inciting violence against a co-equal branch of government while seeking to remain in power after losing an election. Sitting back and watching it unfold. We all know the consequences," he said.

Neguse said the events of January 6 are the "framers worst nightmare come to life."

"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," he said in closing. "I urge you, we urge you to decline his request, to vindicate the Constitution, to let us try this case."

Lead House impeachment manager Jamie Raskin opened his remarks by saying House Democrats' case is based on "cold, hard facts." 

"You will not be hearing extended lectures from me, because our case is based on cold, hard facts. It's all about the facts," Raskin said. 

The Maryland Democrat noted that Mr. Trump's attorneys wanted to stop the trial before it even starts. 

"They want to call the trial over before any evidence is even introduced," Raskin said of Mr. Trump's lawyers. "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."

"This would create a brand new 'January exception' to the Constitution of the United States of America," Raskin added. 

Raskin said that if the nation listens to Mr. Trump's lawyers, the "January exception" will severely harm the nation's future. 

Raskin then proceeded to play a lengthy video montage of juxtaposing Mr. Trump encouraging his supporters to "fight like hell" with dramatic footage of rioters storming the Capitol on January 6. 

"You ask what a high crime and misdemeanor is under our Constitution. That's a high crime and misdemeanor," Raskin said when the montage concluded. "If that's not an impeachable offense, then there is no such thing."

As the first order of business, the Senate approved a resolution 89-11 setting the rules for Mr. Trump's trial. The terms of the proceedings were negotiated by Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell, and agreed to by the House impeachment managers and Mr. Trump's legal team ahead of the trial's start.

Eleven Republicans voted against the resolution laying out the rules off the proceedings: Ted Cruz of Texas, Josh Hawley of Missouri, Ron Johnson of Wisconsin, Mike Lee of Utah, Roger Marshall of Kansas, Rand Paul of Kentucky, Marco Rubio of Florida, Rick Scott of Florida, Tim Scott of South Carolina, Tommy Tuberville of Alabama and Bill Hagerty of Tennessee.

The Senate is now proceeding to debate on the constitutionality of the trial.

The Senate's impeachment trial kicked off just after 1 p.m., after the nine House impeachment managers made their way across the Capitol to arrive at the Senate.

Senate Pro Tempore Patrick Leahy is presiding over the proceedings, which began with a prayer from Senate Chaplain Barry Black. Leahy then led the chamber in reciting the Pledge of Allegiance and gaveled in the Senate as a court of impeachment at 1:03 p.m.

"Powerful redeemer, have mercy on our beloved land," Black prayed, after asking for righteousness and goodness to prevail over evil. 

The acting Senate sergeant-at-arms Jennifer Hemingway then read a proclamation. 

"Hear ye, hear ye, hear ye, all persons are commanded to keep silent 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," she said.

Leahy noted the presence of the impeachment managers and Mr. Trump's legal team.

Melissa Quinn and Kathryn Watson

An updated organizing resolution stipulates that senators will convene for the impeachment trial every day until a verdict is reached, including on Sunday, even though impeachment rules allow senators to take Sundays off.

"Unless the Senate shall have already voted on the article of impeachment, the Senate shall convene as a Court of Impeachment at 2:00 p.m. on Sunday, February 14, 2021, notwithstanding rule III of the Rules of Impeachment," the resolution proposed by Majority Leader Chuck Schumer and Minority Leader Mitch McConnell said.

The initial organizing resolution would have also recessed the trial on Friday after 5 p.m. and all of Saturday at the request of Trump lawyer David Schoen, who observes the Jewish Sabbath. However, Schoen rescinded his request on Monday evening, because he did not want to delay the trial. Mr. Trump's other attorneys are expected to handle the case on Friday evening and Saturday.

The decision to hold the trial on Sunday indicates that the Senate would like to be finished with the proceedings as quickly as possible.

House impeachment managers released their final brief ahead of the trial on Tuesday, responding to the rebuttal from Mr. Trump's attorneys, which challenged the constitutionality of the trial and argued that Mr. Trump was not responsible for the January 6 assault on the Capitol.

"President Trump's pre-trial brief confirms that he has no good defense of his incitement of an insurrection against the Nation he swore an oath to protect," the managers wrote in a 33-page memorandum. "Instead, he tries to shift the blame onto his supporters, and he invokes a set of flawed legal theories that would allow Presidents to incite violence and overturn the democratic process without fear of consequences."

The managers said that Mr. Trump seeks "to evade responsibility for inciting the January 6 insurrection by arguing that the Senate lacks jurisdiction to convict officials after they leave office." They also pushed back against the argument that impeaching Mr. Trump violated his right to free political speech. Mr. Trump repeatedly promoted false claims about the election and urged his supporters to "fight like hell" to overturn the results just hours before the riot at the Capitol.

"Accepting President Trump's argument would mean that Congress could not impeach a President who burned an American flag on national television, or who spoke at a Ku Klux Klan rally in a white hood, or who wore a swastika while leading a march through a Jewish neighborhood — all of which is expression protected by the First Amendment but would obviously be grounds for impeachment," the managers said.

Representatives Jamie Raskin, David Cicilline and Joe Neguse are expected to present the arguments in favor of holding an impeachment trial this afternoon.

Senate Majority Leader Chuck Schumer pledged the impeachment trial kicking off Tuesday afternoon will not distract from Congress's work on Mr. Biden's coronavirus relief plan.

"We have to do everything we can to end this crisis. And even though the impeachment trial is an important and august responsibility, we are doing both," Schumer said during a press conference ahead of the trial's start.

Joined by Democratic committee chairs, the majority leader said the Senate is working with House members and across the aisle to address the coronavirus crisis, juggling those efforts with the impeachment trial.

"The bottom line is simple. The Senate is moving full steam ahead on a bold plan to get this country out of the crisis," Schumer said.

He chastised political commentators who warned the impeachment trial would knock Mr. Biden's legislative agenda off-course.

"To the pundits that said we can't do both at once, we say, you are wrong. We can and we are," Schumer said.

He also stressed the importance of the Senate holding Mr. Trump accountable for his rhetoric in the run-up to the January 6 assault on the Capitol and conduct in the immediate wake of the riots, which Democrats argue incited the violence perpetrated by a mob of Mr. Trump's supporters.

"The Senate has a solemn responsibility to try and hold Donald Trump accountable for the most serious charges ever, ever levied against a president. Those who say, 'let's move on, that brings unity,' are false," he said.

The House impeachment managers plan to frame their impeachment case against Mr. Trump as a "violent crime prosecution," and present videos and evidence "nobody has seen before" to make their case that the former president be convicted for inciting the insurrection at the Capitol on January 6. 

"There's compelling and overwhelming evidence," a senior aide to the impeachment team told reporters Tuesday morning. "It will be more like a violent crime criminal prosecution, because that is what it is." 

Asked to describe the new evidence, another aide said, "Stay tuned." 

The trial will begin today with arguments over the constitutionality of conducting an impeachment trial after a president has left office. The impeachment managers will argue there is no "January exception" that allows a president to commit impeachable acts and avoid punishment by leaving office.

Representative Jamie Raskin, a Democrat of Maryland and the lead impeachment manager, will kick off the constitutional arguments on Tuesday, followed by Representatives Joe Neguse of Colorado and David Cicilline of Rhode Island. 

When the Senate took a vote on the constitutionality of trying a former president last month, five Republicans joined Democrats in favor of a trial: Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania.

Because a conviction requires a two-thirds vote of the Senate, some observers have argued that the vote on constitutionality shows Mr. Trump will ultimately not be convicted. A senior aide to the impeachment team disagreed. 

"It is possible that tribalism and loyalty to Trump could overtake good judgment, but we do not view the procedural vote from last week or today's vote as dispositive in this case," the aide said. "It very well may be the case that senators change their mind and vote to convict." 

The managers are expected to cite an op-ed from Chuck Cooper, who represented Mr. Trump's former national security adviser John Bolton. Cooper argued the trial is constitutional in a piece for The Wall Street Journal on Sunday.

The impeachment managers have been meeting everyday, sometimes twice a day, to prepare their case. They will have two hours on Tuesday to argue the constitutionality of the impeachment and up to 16 hours later this week to make their case. Raskin will also lead the opening arguments. 

The aides would not say whether they plan to call any witnesses or issue a subpoena to Mr. Trump, who declined a request to testify voluntarily last week.   

The House of Representatives voted to impeach Mr. Trump on January 13, while he was still in office, by a vote of 232 to 197. Ten Republicans joined Democrats in voting to impeach.

Mr. Trump was impeached on a single charge of "incitement of insurrection" for his role in the attack on the Capitol on January 6.

The article of impeachment accused the president of "willfully inciting violence against the Government of the United States" with a speech to supporters "that encouraged — and foreseeably resulted in — imminent lawless action at the Capitol." 

"Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice President, interfered with the Joint Session's solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts," the article said.

Read the full article of impeachment here.

As Mr. Trump's second impeachment trial begins, a 56%-majority of Americans would like the Senate to vote to convict him, and the same percentage say he encouraged violence at the Capitol — views that are still somewhat linked to Americans' presidential votes in 2020, reflecting ongoing partisan division.

To those in favor of conviction, this trial is described as holding Mr. Trump "accountable" and "defending democracy." To those Americans (mostly, Republicans) opposed to it, the trial is "unnecessary" and a "distraction."  

In fact, amid the recent focus on the congressional GOP's direction now, under one in five rank-and-file Republicans favor a conviction, while most still broadly value loyalty to Mr. Trump. Many current Republicans say they might even join a new party headed by Mr. Trump if he were to start one. And while almost all call violence unacceptable, most Republicans feel that efforts by Mr. Trump and some Republicans to overturn the 2020 results were justified.

Read more here.

Nine Democrats from the House will serve as impeachment managers, or the prosecutors who will present the case against the former president.

The group of Democrats, all of whom have expertise in law, will be led by Congressman Jamie Raskin, a lawyer from Maryland. None of the impeachment managers for this trial argued the case in Mr. Trump's first impeachment trial, when the Senate acquitted the former president for obstruction of justice and abuse of power. 

For this year's trial, Pelosi has selected a diverse group of House members, including Congressman Joe Neguse, who will be the youngest impeachment manager in U.S. history.

Here is the list of impeachment managers:

• Jamie Raskin, lead manager

• Diana DeGette of Colorado

• David Cicilline of Rhode Island

• Joaquin Castro of Texas

• Eric Swalwell of California

• Ted Lieu of California

• Stacey Plaskett of the U.S. Virgin Islands

• Madeleine Dean of Pennsylvania

• Joe Neguse of Colorado

Read more about the impeachment managers here.

— Lauren Peller

• What: Former President Trump's Senate impeachment trial

• Date: Trial begins on February 9

• Time: 1 p.m. ET

• Location:  U.S. Capitol 

• Online stream: Live on CBSN in the player above and on your mobile or streaming device.

• TV: CBS broadcast stations (Full list of CBS stations here)

Senate Majority Leader Chuck Schumer laid out the parameters of the trial on Monday, saying "all sides" had agreed to a resolution setting the terms for the proceedings.

The first day of the trial will feature four hours of debate over the constitutionality of holding the trial in the first place, followed by a vote on that question. A separate effort by GOP senators to dismiss the impeachment charge failed last month, although 45 Republican senators voted to forgo the trial.

Presentations from the House impeachment managers and Mr. Trump's lawyers will begin Wednesday, with each allotted up to 16 hours across two days for each side. If the managers request witnesses, then the Senate will debate and vote on whether to allow the testimony.

The trial had originally been scheduled to pause for the Jewish Sabbath, at the request of Mr. Trump's lawyer, David Schoen. But Schoen wrote to Senate leaders withdrawing his request on Tuesday, meaning the trial can continue Friday and Saturday.

Exactly how long the trial will last is unclear, but Senate Democrats have an incentive to wrap it up quickly. Democrats want to pass President Biden's $1.9 trillion coronavirus relief plan, and Mr. Biden is eager to sign it. That can't happen while a trial is ongoing. 

Mr. Trump's second impeachment trial isn't expected to last as long as his first, which ran three weeks. 

For his part, Mr. Biden has not expressed a keen interest in the trial. White House press secretary Jen Psaki said the president likely won't watch much of the proceedings, and Mr. Biden has largely sidestepped questions about what the Senate should do, instead leaving the question of conviction up to the Senate. 

A conviction requires a two-thirds vote in the Senate, a high bar. That would mean 17 Republicans need to join all 50 Democrats in convicting the former president. And while some, like Senator Mitt Romney, have indicated an openness to conviction, 45 voted last month that trying a former president was unconstitutional.

Trump ally and Republican Senator Lindsey Graham told "Face the Nation" on Sunday that the outcome of the trial is "really not in doubt." 

"It's not a question of how the trial ends, it's a question of when it ends," Graham said. "Republicans are going to view this as an unconstitutional exercise, and the only question is, will they call witnesses, how long does the trial take? But the outcome is really not in doubt."