Second impeachment trial of Donald Trump

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Article of Impeachment against Donald J. Trump (2021)

On January 11, 2021, Representatives David Cicilline, Jamie Raskin, and Ted Lieu introduced an article of impeachment against Trump, charging him with "incitement of insurrection" in urging his supporters to march on the Capitol building. The article stated that Trump had committed high crimes and misdemeanors by making several statements that "encouraged – and foreseeably resulted in – lawless action" that interfered with Congress' constitutional duty to certify the election. It said he had "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government" in a way that rendered him "a threat to national security, democracy, and the Constitution".[15][16] A total of 218 of the 222 House Democrats co-sponsored the article of impeachment, assuring its passage.[17]

The House passed the article of impeachment on January 13, 2021, by a 232–197 vote. All 222 Democrats voted to impeach, joined by 10 Republicans (including House Republican Conference chairwoman Liz Cheney). Four Republicans did not vote, and the other 197 Republicans voted no.[18][19]

In the days following Trump's second impeachment, Senate Majority Leader Mitch McConnell (R-KY) argued that, because the Senate was in pro forma sessions until January 19, it could not take on any business without the unanimous consent of its members. According to Senate rules, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. Had the article of impeachment been immediately transmitted to the Senate, Trump's trial thus would have begun on Inauguration Day, after Joe Biden was sworn in.[20][21]

Senate Minority Leader Chuck Schumer (D-NY) called on McConnell to bring the Senate back into session immediately after the House transmitted the article of impeachment, and also to advance the confirmation process for Biden's cabinet nominees so that the incoming administration's team would be in place on day one.[22] Some, including House Majority Whip Jim Clyburn (D-SC), initially suggested that the House might transmit the article of impeachment to the Senate at a later date (possibly after Biden's first 100 days as president), giving the Senate time to consider Biden's legislative program and confirm his nominees.[21][23][24] However, House Democrats opposed a delay, stating that Trump remained a danger while he was in office, and House Majority Leader Steny Hoyer (D-MD) said on January 14 that the article of impeachment would be transmitted to the Senate without delay.[23]

After the House impeached Trump, President-elect Biden stated, "I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation."[23] Biden said his priority is enacting a new stimulus bill and rebuilding the economy.[25] He discussed with McConnell the possibility of "bifurcating" the Senate calendar, allowing the trial to proceed while also allowing other business (such as nominations and legislation) to move forward without delay.[23] Under this plan, the Senate could split its days between the trial and other business, rather than having all its time consumed by the trial.[25][26] Former Senate Parliamentarian Alan Frumin said that Senate rules would permit such a course.[23] McConnell told Biden that he would consult with the Senate parliamentarian.[27] Schumer, who would replace McConnell as Senate majority leader, said that a Senate trial could begin immediately.[23]

Law professor Ronald Krotoszynski wrote that the Senate could speed up impeachment proceedings (completing the process in a few days, rather than a few weeks) through a process akin to civil summary judgment. This would be permissible under the Constitution, which specifies that the Senate must "try" articles of impeachment and vote to convict (remove) by a two-thirds majority, but allows the Senate to set its own trial rules or procedures, as reaffirmed by the U.S. Supreme Court in Nixon v. United States (1993).[28]

On January 22, 2021, it was announced that House Speaker Nancy Pelosi would transfer the article of impeachment to the Senate on January 25, with the Senate trial expected to be held during the week of February 8.[29]

A Congressional Research Service report concluded "that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried."[4] Ahead of the trial, 150 legal scholars from across the political spectrum published a letter affirming "that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents."[30] Law professors Laurence H. Tribe and Stephen I. Vladeck argued that because removal from office is only one of the two possible consequences of a conviction (the other being disqualification from holding public office), the purpose of the trial is not nullified if the impeached person no longer holds public office.[31][32] Gregg Nunziata, a former Republican lawyer for the Senate Judiciary Committee, similarly noted that because impeachment power includes the power to disqualify the person from federal office for life, allowing officeholders to evade this by resigning would render "this important punishment ... a nullity."[33] Leading conservative lawyer Charles J. Cooper agreed, writing in the Wall Street Journal the weekend before the trial that there is no Constitutional prohibition against a post-presidency trial.[34][35] Cardozo School of Law constitutional law professor Kate Shaw argued that "drafting history, impeachment practice, and basic constitutional design all point clearly in favor of the constitutionality of trying an ex-president."[33] Legal scholar Brian C. Kalt, who has published research about late impeachments, stated, "In multiple cases, the House and Senate have proceeded as though they can impeach and try people who have already left office, and in one case the Senate took a specific vote to that effect."[33]

There is precedent for impeaching and trying a federal official who already left office ("late impeachment").[33] In 1797, the House impeached Senator William Blount for conspiracy. The Senate tried him, even though it had already expelled him.[33] In 1876, Secretary of War William W. Belknap resigned hours before the House voted for his impeachment on charges relating to his role in the trader post scandal, and the Senate proceeded to hold a trial, ruling by a vote of 37–29 that it did have jurisdiction after a challenge by Belknap's attorneys.[36][37][38]

Before the trial began, most Republicans in the Senate argued that the Senate lacks the constitutional authority to conduct an impeachment trial of a former president.[4] This argument was also made by former federal appellate judge J. Michael Luttig,[39] as well as one of Trump's lawyers at his first impeachment trial, Harvard Law School professor emeritus Alan Dershowitz,[40] and law professor Jonathan Turley, who testified in Trump's favor at his first trial.[4]

Patrick Leahy, senior U.S. senator from Vermont and President pro tempore of the Senate, presiding officer

Kamala Harris, Vice President and President of the Senate, for potential tie-breaking votes

Senate Majority Leader Chuck Schumer said that Chief Justice John Roberts had declined to preside over the trial because he believed that the chief justice only presided when the current president was tried.[41][42] Patrick Leahy, president pro tempore of the Senate, presided over the trial,[43][44] in place of Vice President Kamala Harris, the ex officio president of the Senate, who might have involved herself if any tie-breaking votes were needed.[45]

Prior to the selection of Leahy as presiding officer, there was debate as to who constitutionally should hold that role. Article I, Section 3, Clause 6 of the U.S. Constitution states that the Senate has the sole power to try impeachments and that "When the President of the United States is tried the Chief Justice shall preside."[46][47] Various commentators questioned whether the chief justice must preside over the trial of former presidents.[46][48] Political scientist Keith Whittington noted that the issue is "unsettled, completely without precedent, and unspecific in existing Senate rules and precedents."[48] The University of North Carolina law professor Michael Gerhardt, an expert on impeachment, said he believed that if the impeachment trial began after Trump left office, Harris, as opposed to Roberts, would preside.[46] Conversely, University of Texas law professor Steve Vladeck said that "the question should be whether the impeached officer was President at the time of impeachment", and thus that Roberts should preside even after Trump left office.[46] Vladeck pointed out that "if Trump resigned (or his term ended) mid-trial, it would be more than a little odd for the Chief Justice to give way to the Vice President."[48] Georgia State University law professor Neil Kinkopf argued that "a trial of a President (even a former President) is a momentous event and having the Chief Justice preside seems more congruent with, or more fitting of, the occasion."[48]

On January 12, the day before the House debated the article of impeachment, Pelosi named nine Democratic representatives to be managers in the Senate trial: Raskin (lead manager), Cicilline, Lieu, Diana DeGette, Joaquin Castro, Eric Swalwell, Joe Neguse, Madeleine Dean, and Stacey Plaskett.[49] The managers were chosen for their expertise in constitutional law, civil rights, and criminal justice. Raskin is a former constitutional law professor at American University; Lieu is a former military prosecutor in the United States Air Force; Cicilline is a former public defender; Swalwell is a former prosecutor in California; DeGette is a former civil rights attorney; and Castro, Neguse, Dean, and Plaskett are all former lawyers in private practice.[50]

Democrats relied on many of the same lawyers and aides who helped assemble the first impeachment trial case, including Susanne Sachsman Grooms from the House Oversight and Reform Committee, and Aaron Hiller, Arya Hariharan, Sarah Istel and Amy Rutkin from the Judiciary Committee. The House also temporarily called back Barry H. Berke, a seasoned New York defense lawyer, to serve as chief counsel, along with Joshua Matz, a constitutional expert.[51]

House managers
Lead manager Jamie Raskin (Maryland)	Diana DeGette (Colorado)	David Cicilline (Rhode Island)	Joaquin Castro (Texas)	Eric Swalwell (California)
Ted Lieu (California)	Joe Neguse (Colorado)	Madeleine Dean (Pennsylvania)	Stacey Plaskett (U.S. Virgin Islands)

It was initially unclear who would be on Trump's legal team, as numerous prominent law firms had refused to represent him. The Lincoln Project had publicly pressed law firms not to do so.[40] Law & Crime reported that "essentially all respectable law firms and attorneys" were distancing themselves from him.[52]

Rudy Giuliani, as Trump's personal lawyer, was left out of early conversations about the upcoming defense, and Trump ordered his aides to stop paying Giuliani.[53][54][55] On January 18, one day after meeting with Trump, Giuliani said he would not represent him, stating, "Because I gave an earlier speech [at the rally], I am a witness and therefore unable to participate in court or in the Senate chamber."[56] Similarly, John Eastman, who joined Giuliani on stage at the January 6 rally, was initially considered for a role on Trump's defense team, but he withdrew because his role at the rally made him a witness.[57] Dershowitz, Pat Cipollone, and Jay Sekulow, who helped lead Trump's defense effort during his first impeachment trial, also declined to represent him.[58] Other lawyers who defended Trump during his first impeachment trial, including former Florida Attorney General Pam Bondi, Eric Herschmann, Patrick Philbin, and Marc Kasowitz, said they were not interested in joining the defense for the second trial. Some of them privately expressed their belief that Trump's actions were indefensible.[40]

Trump and congressional Republicans considered designating two of Trump's most vociferous defenders in Congress – Jim Jordan and Elise Stefanik – to represent him, even though neither is an attorney.[52][lower-alpha 1] Congressman Matt Gaetz suggested he would resign his position in Congress to represent Trump if asked to be part of the legal team.[59][60] Both Jordan and Stefanik had voted to reject electoral votes for Biden, even after the president's supporters stormed the Capitol on January 6.[52]

In late January, Trump formed a defense team of five attorneys to be led by Butch Bowers, a South Carolina-based lawyer who helped former South Carolina governor Mark Sanford fight off being removed from office and who also helped former South Carolina Governor Nikki Haley during an ethics investigation.[58][61] Senator Lindsey Graham of South Carolina had arranged Trump's hiring of Bowers.[62] Subsequently, four more lawyers were named to the defense team under Bowers: Deborah Barbier, a Columbia, South Carolina, criminal defense lawyer and former federal prosecutor who has represented high-profile, controversial clients; former acting U.S. Attorney General Johnny Gasser; criminal defense attorney Greg Harris; and Josh Howard of North Carolina.[63][64][65][66] However, the defense attorneys all withdrew on January 30, one week before the trial.[66][67][68] The departures occurred after Trump clashed with his attorneys on strategy and fees. Trump wanted to focus on his false claims that the election was "stolen" from him, in contrast to the lawyers, who insisted on focusing on the legality of convicting a former president. Trump was unhappy with the fees and expenses estimated by the lawyers.[66][67][69] None of the lawyers had been paid any advance fees nor had they signed letters of intent.[67]

On February 1, after the collapse of his earlier legal team, Trump announced that David Schoen and Bruce Castor would be his new defense lawyers.[70][71] Pennsylvania attorneys Michael van der Veen and William J. Brennan joined Schoen and Castor as part of the presentation team.[72][73]

Trump counsel
David Schoen	Bruce Castor	Michael van der Veen	William J. Brennan

Senator Richard Blumenthal (D-CT) said: "The evidence is Trump's own words, recorded on video. It's a question of whether Republicans want to step up and face history."[75] Senator Kirsten Gillibrand (D-NY) said, "This is a very simple allegation. It is incitement to insurrection. We could conduct a trial in a concise amount of time because the evidence that's needed is pretty direct."[76] In the run-up to the trial, a number of Republican senators opposed holding a trial.[77][78] Republican Senator Rand Paul of Kentucky continued to make false claims of election fraud.[79][80] Other Senate Republicans, such as Marco Rubio of Florida, contended that a Senate trial would be too divisive and that it would be "arrogant" for the Senate to exercise its power to bar Trump from holding office in the future.[81][82]

Senate Democrats favored the conviction of Trump, stating that the evidence was clear and straightforward. Assuming all Democratic senators (and the two independent senators caucusing with the Democrats) had voted to convict Trump, 17 Republican senators would have needed to vote to secure the two-thirds majority for conviction. If Trump had been convicted, then the Senate could have disqualified him from holding any federal office by a simple majority vote.[76][75] On February 9, 45 senators (38 Democrats, 5 Republicans, and 2 independents caucusing with the Democrats) supported conviction, 35 senators (all Republican) opposed conviction, and 20 senators (10 Democrats and 10 Republicans) had not released an official statement. This implied that to convict Trump with the required two-thirds majority, some of the Republican senators who said they opposed conviction would have needed to change their minds, either by voting to convict or by not appearing for the vote.[74] Senator Lindsey Graham (R-SC) worked to persuade other Republicans to vote against conviction.[75] In January, Republican Senator Mitch McConnell, the former Senate Majority Leader, reportedly told senators their decision on whether to convict the outgoing president would be a "vote of conscience"[83] and told colleagues he was undecided whether he himself would vote to convict.[84] He later stated on the Senate floor that President Trump "provoked" the mob that stormed the Capitol.[85] However, McConnell announced on the morning of February 13 that he would vote to acquit Trump.[86][87]

Nancy Pelosi signing the article of impeachment

Senator Chuck Grassley administers the oath of office to President pro tempore Patrick Leahy.

Article I, Section 3, Clause 6 of the U.S. Constitution states that "The Senate shall have the sole Power to try all Impeachments." Per the Senate's impeachment rules adopted in 1986, the submission of the articles to the Senate initiated the trial.[13] Speaker Pelosi signed the article of impeachment on January 13, 2021.[88] The article was formally transmitted to the Senate on January 25, 2021.[89] On January 26, the House impeachment managers, accompanied by the clerk of the House and the acting House sergeant at arms, conducted the ceremonial procession from the House to the Senate (across the National Statuary Hall and the Capitol rotunda) to formally deliver the article of impeachment, triggering the trial.[90][91] Raskin, the lead House impeachment manager, read the article to the Senate.[90]

Senate President pro tempore emeritus Chuck Grassley (R-IA) swore in the chamber's presiding officer, Senate President pro tempore Patrick Leahy (D-VT),[92] who then swore in all senators as jurors. Each senator then signed the oath book. Each was required to take the following oath or make the affirmation:[92][13][93][3]

Oath: I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws: So help me God.

Affirmation: I affirm that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws.

The acting Senate sergeant-at-arms, Jennifer Hemmingway, then read aloud the following proclamation to mark the beginning of the proceedings:

Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, the now former President of the United States.

Senator Patrick Leahy signing the summons for second impeachment of Donald Trump

The summons to Trump was issued the same day.[92]

On January 26, Republican Senator Rand Paul forced a vote to dismiss the impeachment charge, on the basis that it was unconstitutional to try a past president. The motion was defeated 55–45, with all Democrats, both the independents, and five Republicans (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania) voting against the motion.[3][4] The vote was seen as a "test vote" and was viewed as a strong indication that the Senate would not reach the two-thirds majority required to convict Trump.[4][94]

Under an agreement between Chuck Schumer and Mitch McConnell, the pre-trial briefing schedule was set.[92]

Trial Memorandum of the House of Representatives[95]

Replication of the House of Representatives to the Answer of President Trump[96]

The House of Representatives, through the nine Democratic impeachment managers, filed an 80-page pretrial brief on February 2. The detailed brief stated that Trump was "singularly responsible" for the violent attack on the Capitol on January 6, citing his preceding campaign to undermine democracy and overthrow the election, and argued that acquitting Trump and failing to disqualify him from future office would gravely harm the nation, stating: "President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A president who violently attacks the democratic process has no right to participate in it."[97]

The impeachment managers argued that the expiration of Trump's term, and his new status as a private citizen, did not present a bar to Senate trial and conviction, writing: "There is no 'January exception' to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.[97] and that it was "unthinkable" that the Framers of the Constitution would have left the country "virtually defenseless against a president's treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck."[98] The House brief stated that "if provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be."[99]

Trump's lawyers filed a 14-page response to the article of impeachment later the same day.[99] Trump's lawyers did not explicitly embrace Trump's false claims of a "rigged" election,[99] but nevertheless echoed them, asserting that "insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president's statements were accurate or not, and he, therefore, denies they were false."[98] Trump's lawyers also argued that the impeachment proceeding is legally "void" because Trump is no longer president.[100][101][99] The brief asserted that prior to the January 6 riots, Trump had "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect".[99]

The House had predicted that Trump would use the First Amendment for his defense, which they countered in their brief that the First Amendment was not applicable to an impeachment trial, writing: "The First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office."[100] Quoting the standard established in Brandenburg v. Ohio (1969), a landmark decision of the U.S. Supreme Court interpreting the First Amendment,[95] the House added that "speech is not protected where it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[100] Nearly 150 leading First Amendment lawyers and constitutional scholars from across the political spectrum found Trump's First Amendment assertion "legally frivolous" and not a viable defense against conviction.[102][103]

The House submitted its replication to Trump's answer on February 8.[96]

Reply Memorandum of the House to the Trial Memorandum of President Trump[104]

Trump, through his attorneys Bruce L. Castor Jr., David Schoen, and Michael T. van der Veen,[105][106] submitted a brief asserting that Democratic leadership in the House were engaging in a "selfish attempt" to capitalize on the storming of the Capitol and its aftermath. They argued that instead of healing the nation or prosecuting lawmakers who participated in the riot, they instead intend "to callously harness the chaos of the moment for their own political gain."[106] Unusual for legal documents, Trump's lawyers invoked partisan rhetoric, writing that Democrats suffer from "Trump Derangement Syndrome"; sought to "silence a political opponent and a minority party" as part of a years-long effort; and "hunger for this political theater" that would be "a danger to our Republic [sic] democracy and the rights that we hold dear."[107]

Seeking to distance Trump from his supporters who assaulted the Capitol, his lawyers wrote that "the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted."[107] Trump's lawyers, citing discredited sources such as the conspiracy theorist The Gateway Pundit website, also falsely claimed in the brief some elements of the Capitol insurrection consisted of anti-Trump rather than pro-Trump figures.[107][108] The brief also denies that Trump took no steps to halt the violence, described him as "horrified" by the scene and asserting that there was a "flurry of activity" inside the White House constrained by "complex procedural elements";[107] this revisionist account[109] is contradicted by the actual sequence of events on January 6, when Trump initially ignored requests for him to restrain the mob, and was described by multiple Trump administration officials and others in contact with him on that day as delighted at the halting of the electoral vote count.[109][110]

Trump's lawyers argued that Trump did not incite the rioters and that his comments and rhetoric about fighting was metaphorical rather than a call for violence.[106] They contended that Trump, in the rally preceding the assault on the Capitol, used the term fight "in the figurative sense" and not "to encourage acts of violence."[106] Trump's lawyers also described some of Trump's acts, including a phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to "find" additional votes for him to overturn Biden's victory in Georgia, as merely political.[107] Trump's lawyers also repeated their free-speech argument, arguing that he could not be convicted due to the First Amendment;[107] a minority of legal scholars believe that the First Amendment applies in the impeachment context.[111]

The brief makes 15 references to a 2001 article on impeachment by prominent legal scholar Brian Kalt, asserting that he had concluded that impeaching a former president is unconstitutional. Kalt replied that Trump's lawyers made "flat-out misrepresentations" of his work and that he had actually concluded that there is a "solid basis" for post-presidential impeachments, having noted and rejected contrary arguments.[112]

In an unprecedented maneuver in American history, the Trump defense team declared that Trump would, if convicted by the Senate, attempt to overturn the verdict. Trump's lawyers say the conviction would be "unauthorized" and "non-binding" – and that if Trump runs for president again, it "would be challenged in a court of law".[107] Given Nixon v. United States, it is unclear whether or to what extent a challenge to a Senate impeachment conviction would be justiciable.[111] The Supreme Court case had unanimously determined that the question of whether the Senate had properly tried an impeachment was a political question and could not be resolved in the judicial branch.[113]

The House submitted its reply memorandum on February 9, 2021.[92][104]

Request of Jamie Raskin on behalf of the House for Trump to testify[114]

In a letter to Trump attorneys on February 4, lead impeachment manager Jamie Raskin invited Trump to testify (and be subject to cross-examination) before or during the impeachment trial; the House impeachment managers argued that his testimony was needed after he disputed the House's allegations that he incited the insurrection at the Capitol.[115] The letter stated that Trump's refusal to testify would support "a strong adverse inference" against Trump.[115] The House's letter noted that there was no barrier to a former president giving testimony (and noted that Presidents Gerald Ford and Bill Clinton had testified in office, and the Supreme Court held in Trump v. Vance (2020) that Trump was not immune from legal process while serving as president).[116]

Trump's lawyers Castor and Schoen responded to Raskin the same day in a terse letter declining the invitation.[115] In their response, they called the House's request for Trump's testimony "a public relations stunt"; rejected the implication of adverse inference for refusing to have Trump testify; said that the House "cannot prove" its allegations; called the impeachment trial an "unconstitutional proceeding"; and stated that it is too serious "to try and play these games".[117][118][119]

The House impeachment managers signaled that they would not subpoena Trump's testimony, stating that there was ample other evidence (including video evidence) that supported his guilt.[120] Raskin stated that Trump's "immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt."[120]

In preparation for the trial, House Democrats built a detailed case against Trump, emphasizing what Trump knew in advance of the attack on the Capitol on January 6 and the effect of Trump's words and actions on his rioting supporters, with the goal of showing that Trump "summoned the mob, assembled the mob, and lit the flame of this attack".[121] In a notable departure on strategy, the managers declined to discuss the logistics of their case, whereas in the previous impeachment trial they had engaged in numerous communication platforms to advance their position to the public. The managers also sought to apply the lessons learned in the last impeachment trial: not antagonize Republicans, use lots of videos, and make succinct arguments.[51][122] The managers prepared to conclude in a week, forgoing witnesses as they believed it would be unnecessary and hinder Biden's priorities on passing legislation and confirming nominees.[123] The managers intended to use the evidence collected in FBI affidavits charging hundreds of the Capitol insurrectionists, many of whom cited Trump's comments as permission to storm the Capitol. On certain filings, Trump is described as a "de facto unindicted coconspirator" for the Capitol riots and the driving force behind the breach, according to Proud Boys organizer Ethan Nordean.[107] Accordingly, the House was reported to present their case like a "violent crime criminal prosecution."[124] House impeachment managers and the staff, aided by the law firm Debevoise & Plimpton, compiled audio and video footage of Trump's rally and the ensuing attack on the Capitol, as well as details about the injuries sustained by police.[121][125][126]

According to The New York Times, the managers were also concerned about implicating Republican lawmakers who entertained the president's claims of election fraud, notably those who questioned and objected to the 2021 Electoral College vote count, as well as in the case of Ted Cruz and Josh Hawley, played a role in the Capitol storming. The managers sought to make clear that it is not his party but Trump himself who is on trial, so as to not alienate the GOP senators.[127][51]

Trump's defense team indicated that they would present their opening arguments in one day. Bruce Castor, David Schoen, Michael van der Veen and William J. Brennan were all expected to speak.[128] Trump announced that he would not testify for the impeachment trial.[129]

On the evening before the defense's opening arguments, Senators Lindsey Graham, Ted Cruz, and Mike Lee were seen going into a room that Trump's lawyers were using to prepare for their arguments. Cruz downplayed the meeting as an opportunity to "share [their] thoughts" about the defense's legal strategy. When reporters confronted Schoen on the appropriateness of impartial jurors consulting with the defense team, he claimed that the trial did not have "any semblance of due process whatsoever".[130]

On February 9, Raskin described the scene in the House during the invasion, with people phoning their loved ones to say goodbye, and "the most haunting sound I ever heard" – people pounding on the door like a battering ram. Regarding the constitutionality of trying Trump when he was no longer in office, he urged senators not to create a "January exception" to a president's accountability.[153]

On February 10, the impeachment managers began to present their case. They presented new footage of the attack, including police body camera footage. Citing this, Plaskett revealed that rioters came within 100 feet of where Vice President Pence was sheltering with his family, and raised the point that a gallows was constructed outside the capitol where rioters chanted "Hang Mike Pence". Citing the possession of a 950,000-volt stun gun by the man who was photographed with his feet on Pelosi's desk, as well as other evidence, Plaskett argued that the rioters intended to murder the speaker of the House. Plaskett stated that lawmakers were put in danger because of Trump's speeches and tweets.[154] She cited witness testimony from arrested rioters who said that anyone they got their hands on they would have killed. "They were talking about assassinating the vice president of the United States", she said. "They did it because Donald Trump sent them."[155]

The impeachment managers' presentation concluded on February 11. Diana DeGette argued that statements of rioters made "before, during and after the attack make clear the attack was done for Donald Trump, at his instructions, and to fulfill his wishes."[156] Ted Lieu argued that Trump demonstrated no remorse after the attack.[157]

Immediately after the end of the first day of opening arguments, Senator Mike Lee raised an objection.[158] He moved to strike a portion of the prosecution's presentation in which they described Trump's telephone calls to him and Senator Tommy Tuberville, claiming that their description of the calls was untrue. This drew much confusion due to Lee's spokesperson and Tuberville confirming the calls from Trump. Despite the perplexity of the situation, Rep. Jamie Raskin, the lead impeachment manager, eventually agreed to Lee's request calling it "much to do about nothing".[158][159][160]

On February 12, Trump's counsel Castor, Schoen, van der Veen and Brennan presented their opening arguments.[130] Van der Veen called the impeachment article an "unconstitutional act of political vengeance" and amounted to "constitutional cancel culture" on Trump and his supporters. They claimed that Trump's remarks that day "encouraged those in attendance to exercise their rights peacefully and patriotically",[161][162][163] and that the House's charge that he incited an insurrection was "a preposterous and monstrous lie".[164]

Van der Veen argued that if the Capitol attack was premeditated as criminal files have alleged, Trump could not have incited what was already planned. Schoen asserted that the House had afforded Trump's counsel no due process in the impeachment proceedings and claimed that the House has manipulated footage and relayed inaccurate information. They also criticized the managers for heavily saying "reportedly" as their standard for evidence.[165]

Mounting a "whataboutism" defense,[166][167][168] Trump's lawyers played a lengthy video montage demonstrating what they described as the hypocrisy of Democrats' reactions to Trump's rhetoric. As examples, they showed clips of Schumer appearing to threaten Supreme Court Justices Kavanaugh and Gorsuch at a March 2020 pro-abortion rights rally.[169] (Schumer apologized the next day.)[170] The video montage included Democrats using the word "fight" and the phrase "fight like hell" in several speeches, remarks, and interviews, focusing on Senator Elizabeth Warren.[171] Many of the clips, from Democratic figures such as Representatives Maxine Waters, Al Green, Nancy Pelosi, and Alexandria Ocasio-Cortez, Senators Elizabeth Warren and Jon Tester, and President Biden,[172] were taken out of context,[170] and involved the Democrats referring to "fighting" for constituents against bureaucratic obstacles (as in the Tester clip),[172] fighting for progressive policy positions (as in the Warren clips),[167] or fighting the coronavirus (as in a Schumer clip).[167] Trump's lawyers falsely claimed that Trump's first two tweets during the Capitol attack urged calm; Trump in fact first tweeted an attack on Vice President Pence before making a tweet saying "stay peaceful" and "no violence".[173] Trump's attorneys asserted that Democrats' calls for Trump's impeachment was evidence of a "double standard", and claimed that Democrats and liberals had been out to get Trump physically and politically since the beginning of his candidacy for president.[172] They furthermore showed clips of Trump's speeches throughout the years that they claimed the Democrats and media had misrepresented, as evidence that he had always condemned violence and white supremacy. They insisted that Trump's words at the rally were "ordinary political rhetoric" and protected free speech. The defense team rested their case after less than three hours, proceeding to a question-and-answer session.[174]

During the proceedings, Republican Senators Ted Cruz, Mike Lee, Dan Sullivan, Mike Braun, Todd Young, and Marsha Blackburn repeatedly huddled to discuss their "standards" of impeachment.[175] Graham and Cruz repeatedly consulted with Trump's lawyers during their breaks.[176]

Republicans generally lauded the House managers' presentation, with focus being drawn to Ted Lieu's warning that he was not concerned about the results of Trump winning another presidential election, but of his losing one.[177] Most Republicans said they thought Trump would be acquitted, with some repeating their convictions about the trial's alleged unconstitutionality.[177] Trump's lawyers' presentation was praised by Republicans such as Ron Johnson[178] and John Barrasso.[179]

Democrats criticized Trump's lawyers' presentation and denounced the defense team's equating of Trump's rhetoric ahead of the storming of the Capitol to past comments by Democrats: Senator Tim Kaine called it a "bogus argument"; Martin Heinrich called it a "completely false equivalence" and said "I don't remember any violent mobs after any of those comments"; and Chris Coons said, "Show me any time that the result was, our supporters pulled someone out of the crowd, beat the living crap out of them, and then we said, 'That's great, good for you, you're a patriot.'"[179]

Schoen reportedly threatened on the evening of February 11, the night before the opening argument for the defense, to quit Trump's defense team over a disagreement about the use of videos. Trump called Schoen and convinced him to stay.[180]

In remarks on the Senate floor after the adjournment of the "Court of Impeachment", Minority and Republican leader Mitch McConnell, who voted for acquittal, said his vote was based on his belief that the Constitution did not permit the Senate to convict an ex-president.[187]^: S735 He noted that Trump "didn't get away with anything yet" because the criminal justice system could still deal with the situation.[216] He added:

January 6th was a disgrace. American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like. Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President. They did this because they had been fed wild falsehoods by the most powerful man on Earth – because he was angry he'd lost an election. Former President Trump's actions preceding the riot were a disgraceful dereliction of duty. The House accused the former President of, quote, 'incitement.' That is a specific term from the criminal law. Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day.[217][218]

Schumer strongly criticized the Senate's decision to acquit Trump in a floor speech, calling it "un-American" and insulting to patriots who sacrificed themselves for the country for centuries. "There is nothing, nothing more un-American than that ... There is nothing, nothing more antithetical to our democracy... insulting to the generations of Americans patriots who gave their lives to defend our form of government." Schumer vowed that the storming of the Capitol would be Trump's "final terrible legacy" and that history would condemn the Republicans who voted to acquit. Schumer decried the events of January 6, saying it would "live on in infamy, a stain on Donald John Trump that can never, never be washed away".[219]

Republican Senator Bill Cassidy said the Constitution and the country "is more important than any one person" and that he voted to convict Trump "because he is guilty."[220] Republican Senator Susan Collins of Maine said that Trump "incited an insurrection with the purpose of preventing that transfer of power from occurring" and that his "actions to interfere with the peaceful transition of power" constituted an abuse of power and "grounds for conviction."[221]

Jamie Raskin hailed the effort as the "most bipartisan presidential impeachment in the history of the United States"; stated that "Trump stormed our House with the mob he incited and we defended our House"; and referred to McConnell's speech as confirmation that the House had proved their case and that the Senate had merely punted on their responsibility over a debunked technicality than on the merits.[222]

McConnell was condemned as hypocritical for criticizing Trump after voting to acquit him, especially because he had maneuvered to block the House from starting the trial before Trump had left office, and thereafter cited Trump's status as a private citizen as a reason to not convict him. Speaker Nancy Pelosi said: "It is so pathetic that Senator McConnell kept the Senate shut down so that the Senate could not receive the Article of Impeachment and has used that as his excuse for not voting to convict Donald Trump."[223]

After the Senate vote, former President Trump released a statement calling the trial "yet another phase of the greatest witch hunt in the history of our Country" and asserting that his movement had "only just begun."[224]

President Joe Biden released a statement following the acquittal that day. He noted the sacrifice of Capitol Police Officer Brian Sicknick who had lain in honor in the Capitol Rotunda days ago, the bipartisanship of the impeachment and the trial, and McConnell's speech laying responsibility on Trump. He stated that "democracy is fragile" and must always be defended, and that "violence and extremism have no place in America".[225]