Trump impeachment trial: Five key players to watch as prosecution unfolds

Where GOP Leader Mitch McConnell goes, others will follow, writes US political correspondent Griffin Connolly

Griffin Connolly
Washington
Monday 08 February 2021 10:01
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Trump impeachment lawyer says Capitol riot had ‘nothing’ to do with him
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The stage appears mostly set for Donald Trump’s second impeachment trial scheduled to commence in earnest on 9 February.

The nine Democratic House impeachment managers have laid out their case against the former president in a pre-trial brief, and Mr Trump’s legal team has filed a memorandum of its own in defence of his actions surrounding the 6 January insurrection at the US Capitol.

While the senators who will hear the case appear to be crystallising mostly along party lines on their positions to convict or acquit Mr Trump, there is half-a-degree less certainty about the outcome of the second Trump impeachment trial than the first one.

That uncertainty arises from Senate Republicans leaders initially indicating last month they were seriously considering convicting Mr Trump as a means of exorcising his influence from the party.

As the impeachment trial unfolds, here are the people to watch to gauge how it’s going:

1. Mitch McConnell

Where the Republican minority leader goes, many of his colleagues will follow.

Mr McConnell, by all accounts, has been disgusted with Mr Trump over his role fomenting the fury among the Republican party’s constituency base that led to the insurrection at the Capitol.

The two have not spoken since December.

“The mob was fed lies,” Mr McConnell said on the Senate floor on 19 January of the pro-Trump rioters who desecrated the halls of the legislature just 13 days earlier.

“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 has since indicated his keen interest in hearing the House impeachment managers prosecute their case against the former president. This, while incongruous with his vote on 26 January to dismiss the trial as unconstitutional, does still demonstrate how steaming mad he is about being caught up in the chaos along with other lawmakers on 6 January.

“I’m going to listen to the arguments. I think that’s what we ought to do. That’s what I said before it started. That’s still my view. The issue on which we already voted is an interesting constitutional question. I think we ought to listen to the lawyers argue the question,” Mr McConnell said on 1 February.

2. John Thune

The South Dakota Republican, Mr McConnell’s top deputy, has already indicated he will not support convicting Mr Trump on procedural grounds.

That puts him in the same camp as 35 Senate Republican (so far) who have fallen back on the argument that the Constitution does not allow the Senate to hold trial for a federal official who is no longer in office.

It’s a tenuous legal position, most constitutional scholars from across the ideological spectrum agree, but one they are entitled to since each senator acts as his own judge and jury in an impeachment trial

House Democrats’ pre-trial memo from 2 February highlights the obvious loopholes for justice permitted by a reading of the Constitution that prohibits post-service trials.

“The Constitution does not allow officials to escape responsibility for committing impeachable offences by resigning when caught, or by waiting until the end of their term to abuse power, or by concealing misconduct until their service concludes,” the impeachment managers argue.

What’s more, they point out, the language of the Constitution plainly states in Article I, Section 3, Clause 6: “The Senate shall have the sole power to try all impeachments”.

Legal scholars, including former federal judges appointed by Republican presidents, have written extensively on how that phrase provides standing for this trial and others.

Mr Thune has not been shy about criticising Mr Trump’s behaviour and his lies about election fraud that led to the 6 January storming of the Capitol. That frankness has landed him in hot water back home in South Dakota, where Trump loyalists want to see someone primary in his next election cycle. 

It will be interesting to see whether Mr Thune will continue condemning the president’s actions discussed during the impeachment trial or if he will tack closer to the nuts-and-bolts argument that the whole exercise is unconstitutional.

3. Patrick Toomey and Rob Portman

Mr Toomey, a first-term Republican from Pennsylvania, and Mr Portman, serving his second term from Ohio, are both retiring after 2022 instead of seeking re-election.

That puts them in the unique position of being able to vote at Mr Trump’s impeachment trial without fear of political retribution, since they’re both leaving public office in two years anyway.

Mr Toomey was one of the five Republicans who voted against a motion from GOP Senator Rand Paul to dismiss the impending trial on the pretext that only sitting presidents can be tried.

“In my view, the text and context of the Constitution, the meaning of the term ‘impeachment’ to the founders, and the most relevant precedents indicate that it is constitutionally permissible for the Senate to consider the impeachment of President Trump,” he said in a statement after that vote bucking his own party.

Mr Toomey has been vocal in his denunciation of Mr Trump, going so far as to call on him to resign in the wake of the Capitol riot.

His comments in the immediate aftermath of the insurrection appear to suggest he’s leaning toward conviction, although he has not tipped his hand publicly.

“I think the president has disqualified himself from ever certainly serving in office again,” Mr Toomey has said. "I don’t think he is electable in any way.”

Mr Portman, a nose-to-the-grindstone legislator, voted in favour of the GOP motion to dismiss the trial, unlike Mr Toomey. He did make clear, however, that that vote should not be construed as an endorsement of Mr Trump’s acquittal.

“I’ve been very clear that former President Trump bears some responsibility for what happened on January 6 through his words and actions,” Mr Portman said in a statement on 26 January.

“As the trial moves forward, I will listen to the evidence presented by both sides and then make a judgment based on the Constitution and what I believe is in the best interests of the country.”

4. Jamie Raskin

The lead impeachment manager, widely considered among his colleagues one of the most earnest and likeable members of Congress, is a largely sympathetic figure.

Mr Raskin, a second-term Democrat from Maryland, was grieving the death-by-suicide of his 25-year-old son, Tommy, when rioters stormed the Capitol on 6 January.

His in-the-moment response to the mayhem appears in the Democrats’ statement of facts from their pre-trial brief.

As rioters stampeded through the building, Mr Raskin, “asked his chief of staff to protect his visiting daughter and son-in-law ‘with her life’ – which she did by standing guard at the door clutching a fire iron while his family hid under a table”, the managers write.

Mr Raskin and the eight other impeachment managers will be delivering an emotional appeal for their case in addition to the legal one, as the riot has left hundreds of people on Capitol Hill traumatised – from lawmakers, staffers and police officers to journalists and maintenance workers.

Look for them to intersperse their legal arguments for Mr Trump’s conviction with harrowing details about the deadly day in Washington.

5. Bruce Castor

Heading up Mr Trump’s defence team is Pennsylvania attorney Bruce Castor, previously known for declining to prosecute Bill Cosby – and later suing one of his accusers.

Mr Castor has not been an active member of the president’s inner circle over the years, but was introduced to Mr Trump through his cousin, Steve Castor, a former Republican counsel for the House Oversight Committee during his first impeachment hearings in 2019.

Mr Castor has promised not to parrot the president’s claims that the 2020 election results were fraudulent, but his 14-page pretrial brief from 2 February suggests he could stray into that territory.

The former president’s brief outlines his two lines of defence: First, that Mr Trump was merely exercising his First Amendment rights by calling the 2020 election results into question, and secondly, that the Constitution does not allow ex-presidents to face an impeachment trial.

It’s a shallow effort to undermine the prosecutors’ case, suggested Dale Carpenter, a constitutional law professor at Southern Methodist University.

“No federal court is even going to consider arguments about whether a conviction is permissible or warranted. Only the ‘court of impeachment’ consisting of the Senators themselves will decide this matter. Therefore, the former president's response is a political – rather than legal – defence. He's counting on the fact that few Republicans will dare vote to convict him, regardless of the merits,” Mr Carpenter said.

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