President Donald Trump gestures at a campaign rally in support of U.S. Senate candidates Sen. Kelly Loeffler, R-Ga., and David Perdue in Dalton, Ga., Monday, Jan. 4, 2021. (AP Photo/Brynn Anderson)
This is the second of our two-part series looking into the arguments for and against the second impeachment trial of President Donald Trump.
WASHINGTON — The Senate will begin the second impeachment trial to decide the question of whether President Trump incited an insurrection on Tuesday. But opening arguments won’t be heard until Wednesday. That’s because today, the debate will center around the question of whether a trial can even move forward now that President Trump is no longer in office.
“Article 1, Section 3 of the Constitution says that when this moves to the Senate stage, they have the capacity to exercise that power to remove someone from office, but also a power to disqualify someone from holding and enjoying the office going forward,” University of Utah law professor RonNell Andersen Jones said.
“The argument is that not just that Congress shouldn’t impeach and remove Trump, but that it can’t do so because the Constitution doesn’t allow for the impeachment and removal of former officers.”
The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgement 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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
-Article 1 Section 3
Jones said the arguments will focus on how the senators will interpret the Constitution’s call for judgment about removal and disqualification from office.
“The key here is the question of whether you would couple the removal and disqualification, or whether you would decouple them and think these are two separate decisions that the Senate is entitled to make.”
45 of the 50 Senate Republicans have signaled they believe the former, that removing and disqualifying are one decision, saying if there’s no need to remove, there’s no way to justify disqualification.
Another issue that has been raised is that of Supreme Court Chief Justice John Roberts. When a president is impeached, the Constitution requires the Chief Justice to preside at the trial. However this time, Vermont Sen. Patrick Leahy (D) will fill that role as President pro tempore of the Senate.
Roberts’ absence is something critics say signals that perhaps he believes this trial is unconstitutional.
“[Chief Justice Roberts] is not at the trial, because President Trump is not the president.” Sen. Lindsey Graham (R-SC) told Face the Nation on Sunday.
Graham argues Mr. Trump is not guilty of the high crime or misdemeanor of inciting an insurrection. He argues that while the former president will have his place in history for what happened on January 6, he did not incite the violence.
“The House is impeaching him, under the theory that his speech creates a riot. When you look at the facts, many people had already planned to attack the Capitol before he ever spoke.”
Mr. Trump’s lawyers have signaled that their argument will mostly focus on their claim the trial is unconstitutional, they are also expected to dismiss the claims the former president can be held accountable for the breach on the Capitol by some of his supporters.
His legal team has claimed when the president told a crowd gathered in DC on Jan. 6, “You fight like hell, and if you don’t fight like hell, you’re not gonna have a country anymore,” he was speaking in a figurative sense. A claim they say is supported by his call later that, “Everyone here will soon be marching over to the Capitol Building. to peacefully and patriotically make your voices heard.”
Yesterday, KSL NewsRadio’s Paul Nelson spoke with legal experts about the case for conviction. You can find that story here.
The impeachment trial is expected to begin around mid-day on Tuesday and last through the weekend. KSL NewsRadio will air the entirety of the trial on the KSL X-stream.
You can also follow along with live updates throughout the day on KSL NewsRadio and on the free KSL NewsRadio app.