Front Burner - Trump’s impeachment: Will history repeat itself?

Episode Date: February 9, 2021

Donald Trump is facing an historic second Senate impeachment trial. Will the former U.S. president avoid conviction once again? Politico reporter Andrew Desiderio explains why all signs point to an acquittal.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hey there, can you hear me? Hi, Andrew. Hey, Jamie. How are you?

Good, thanks. Thanks so much for being here. It's such a pleasure to have you. So maybe you could start by introducing yourself. Can you tell our listeners who you are? Yeah, my name is Andrew Desiderio. I live here in Washington, DC. I cover Capitol Hill for Politico, specifically the US Senate. Perfect. So you are really an excellent person for us to be speaking to today because it is a very big day in Washington. It's been about a month since the US House of Representatives voted to impeach Donald Trump again. And today, Tuesday, marks the first day of his second impeachment trial in the U.S. House of Representatives voted to impeach Donald Trump again. And today, Tuesday, marks the first day of his second impeachment trial in the Senate. And I know that it hasn't been that long since the first trial, the first impeachment trial. But let's start by reminding

people, what is the purpose of a Senate impeachment trial? Right. So an impeachment article is essentially an indictment in a court of law. And when you hold a trial, there are jurors who are adjudicating the charge and deciding whether that individual deserves to be convicted or acquitted. courts in the United States, it's more of a political process than anything else outlined by the US Constitution. So the most comparable thing is a court of law, but that even doesn't really tell the full picture. Right. And using that imperfect comparison of a court of law, the senators are essentially jurors and judges, I guess. Exactly. The senators are jurors. And you know, it's funny, every time we ask them specific questions about impeachment charges, and I remember last year when I was covering the other trial, you know, during the trial, asking them about different evidence that came out,

they would always be able to easily fall back on the typical response of, well, I'm a juror, I can't really comment. I'm trying to uphold my oath here. So it was frustrating to those of us who are covering it. But yeah, senators, for the most part, do take that oath seriously. Right, right. It's convenient for them. So as we've talked about on the show before, there's this symbolic gesture here, since Trump is no longer president, the accountability factor. But there's also a practical argument as well for convicting him in the Senate. And I wonder if you could tell me a little bit about that. That's right. So usually an impeachment trial is to remove the office

holder from that office. But in this case, it's kind of unique because the office holder is no longer in office. In this case, Donald Trump was in office when the House impeached him. But by the time the Senate got around to holding the trial, he was no longer in office anymore. Now, everybody is saying, rightfully so, what's the point of holding an impeachment trial for someone who's no longer in office if there is no office from which to remove that individual anymore? Well, the Constitution also spells out another punishment for being convicted in an impeachment trial, which is being disqualified from holding future office. And that is the key here, is that if Donald Trump were to be convicted, then that sets up a Senate vote whereby they can bar him from holding any future office, federal office, that is. So if Donald Trump wants to do a comeback bid in 2024, run for president

again and seek the Republican nomination, he would not be able to do that. And I want to come back to this idea in a few minutes with you, particularly the political calculations from the Republicans around this. But first, Trump has been charged with willful incitement of insurrection, the argument being essentially that in a speech to supporters at his January 6th rally, he encouraged the subsequent riot at the Capitol building. What is now called an attack on democracy, an insurrection and failed coup attempt in which five people died. Rioters in House Speaker Nancy Pelosi's office. Even replacing the stars and

stripes with the Trump flag. And what arguments are his legal team making in his defense? His lawyers filed their first pretrial brief, 78 pages long. I just spent about an hour going through it. And what they argue is, number one, that the entire process is constitutionally flawed. As we were talking about before, they advanced this argument that the entire proceeding should not be happening because Donald Trump is no longer in office. They also use a lot of elevated political rhetoric, accusing Democrats of trying to seek partisan retribution against the former president. And they also lean very heavily on a free speech argument. They say that Donald Trump's free speech rights, as outlined in the First Amendment to the U.S.

Constitution, cannot be infringed upon, and that Democrats' case in the impeachment article relies on sort of impeaching Donald Trump's free speech, is what they say, because the charge is that he incited the insurrection, partly via his speech the morning of the insurrection, in which he said things like, fight like hell, he said, you know, we have to march on Congress, things like that. We will never give up. We will never concede. It doesn't happen. You don't concede when there's death involved. Our country has had enough. We will not take it anymore. And that's what this is all about. And what Trump's lawyers are essentially arguing is

that that is all protected speech under the Constitution. I want to pick apart these two constitutional arguments with you first, that it's that it's unconstitutional to convict a president after he's left office. And so what are the arguments for and against that? So the argument for it, as outlined by the president, the former president's allies and his attorneys, is that there's no punishment anymore when the person is no longer in office. That it's a really a plain and simple kind of, you know, conventional wisdom argument. Republican Senator Roger Wicker from Mississippi now. Richard Nixon was about to be impeached by the House of Representatives

during his second term. He resigned from office and impeachment evaporated. I think that's what most people have viewed about impeachment. But the flip side, and this is what most legal scholars agree on, which is that, you know, because the Constitution specifically outlines other penalties, including, as we discussed before, the idea of disqualifying that person from ever holding a future office, that it is constitutional for the Senate to put a former president on trial. And they point to the exact words of the Constitution, which say, and I'm quoting here, the Senate has the sole power to try all impeachments. Impeachment manager and Congressman Eric Swalwell, Democrat from California.

Because Donald Trump, we know will do this again, has such a disdain for democracy and a disdain for public safety, we can't afford as a country to give him a chance to even come close to doing this again. So each side is pretty dug in on this issue. But I think the preponderance of legal opinion is on the side of those who say that it is constitutional to put a former president on trial because of a what I just outlined, the Constitution says, in other words, the courts can't tell the Senate how it wants to operate its own rules, and be the fact that there are still penalties for Donald Trump, even though he is no longer the President of the United States.

Right, right. And I know that this argument is going to be sort of first thing on Tuesday. Let's do the second one, the First Amendment argument. So, you know, this is an argument that I think is the one that you'll hear the most throughout the week during the trial, which is that anybody, even the president of the United States, nobody can be held accountable for language that is used, that is protected under the First Amendment. And I think that that's something appealing to a lot of Americans who do enjoy their First Amendment free speech rights, obviously. Take a listen to something else Rand Paul said on the Senate floor today. We're not going down the road that Democrats have decided,

this low road of impeaching people for political speech. I want the Democrats to raise their hands if they have ever given a speech that says, take back, fight for your country. But, you know, what the House impeachment managers are arguing is that this isn't a free speech case, that free speech has nothing to do with an impeachment. In other words, you know, this is a process whereby Democrats allege a former president, a then president, used and abused his perch as the president of the United States to incite an insurrection via his words,

via his actions, and via really a weeks-long pressure campaign that included pressuring his own vice president to overturn the election results and placing that phone call to the Secretary of State of the state of Georgia, pressuring him to, quote, find votes on his behalf. Brad, what are we going to do? We won the election and it's not fair to take it away from us like this. And it's going to be very costly in many ways. I think you have to say that you're going to reexamine it and you can reexamine it, but reexamine it with people that want to find answers, not people that don't want to find answers. So they're really alleging that this is more than just what happened on January 6th, that this was really a lead up to it,

that Donald Trump spent weeks and he did spend weeks trying to discredit the results of the election. And, you know, really told his supporters untruths about the fairness of the election. Right, right. You mentioned that call with the Georgia state official. So much has happened. It actually completely slipped my mind. So I'm really glad that you brought that up. So we have these two constitutional arguments. And then the third argument, like you mentioned before,

is simply that he didn't incite violence, that simply he's just not guilty and that this is really like political theater, right? Exactly. Just over a week ago, Trump had a major shakeup of his legal representation. And what do we know about why his lead lawyers quit? So basically, what happened was the former president cut loose his initial legal team, because we're told that they would not advance some of the disputed claims about the fairness

of the election. He was angry that his initial legal team was not leaning as hard into that aspect of Trump's defense. Interesting. Can you tell me a little bit more about his new legal team? There's Bruce Castor Jr. and David Schoen, right? up out of nowhere. They hadn't been people who were in the president's orbit beforehand. They are obviously longtime Republicans. Bruce Castor is a former district attorney in a suburban Philadelphia county in Pennsylvania. So these were not people that were really on anyone's radar. And it's not clear that they really had any pre-existing relationships with Donald Trump. They certainly weren't representing him in any previous cases. But what was interesting was that none of Donald Trump's defense attorneys from the last impeachment trial signed on to this effort. So essentially, Trump had to start his search anew this time around to find people who were essentially willing to defend him. Right. And so I know

that both of these lawyers have come up against controversies. Schoen has been linked to Jeffrey Epstein, the disgraced financier and convicted sex offender. He said that he met with Epstein in prison just days before Epstein hanged himself. And Schoen said that he had agreed in that meeting to take over Epstein's defense. He has also represented some organized crime figures in New York, including Russian mobsters. And tell me a little bit about Bruce Castor Jr. as well, what his legal history is like. Right. So Mr. Castor, as I mentioned before, was a district attorney for a suburban Philadelphia county back in the day, and he infamously declined to prosecute Bill Cosby, who of course was later found to have sexually abused many women,

and that is certainly the most controversial aspect of his past. Mm-hmm. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years.

I've talked to millions of people, and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial

vision together. To listen to this podcast, just search for Money for Couples. So I want to talk about the Republicans a little bit now. Ten Republicans in the House joined the Democratic majority in the vote to impeach Trump. And I remember right after the Capitol Hill attack, there was this real sense that perhaps there could be enough votes to actually convict him. There was all this anger, you know, of course, because these senators were the victims in this. They and their colleagues were the ones hiding in their offices or fleeing the chamber in gas masks. And from what I understand now, that is not the sentiment right now, right? That's right. So actually, a couple weeks ago, 45 out of 50 Republican senators in the chamber voted for a motion declaring that the trial itself was unconstitutional,

which goes back to what we were talking about earlier. So for that reason, it's hard to imagine seeing, you know, the 17 or so Republicans you would need to vote for conviction, voting for conviction, if they believe that the entire proceeding itself is unconstitutional. Now, some have said that they will divorce that view from their reading of the evidence, and they're listening to the evidence throughout this trial. But it is hard to see now that there will be 17 Republicans who cross over with the Democrats and vote to convict Donald Trump. Of course, you need 67 senators, which is that two thirds threshold in order to convict someone in an impeachment trial. in order to convict someone in an impeachment trial. You can expect that the five who did vote with the Democrats on the issue of the constitutionality

will probably vote to convict. And those are the ones who have been, you know, the most vocal about Donald Trump's conduct. It's a video of Ben Sasse sending a message to the Nebraska Republican Steering Committee. Personality cults aren't conservative. Conspiracy theories aren't conservative. You are welcome to censure me again,

but let's be clear about why this is happening. It's because I still believe, as you used to, that politics isn't about the weird worship of one dude. But it's hard to see a senator who said that the process itself was unconstitutional then voting to convict. The senators who aren't voting to convict here or are thought to not be voting to convict here, what calculus are they making here? Well, I think it's a political calculus, first and foremost, which is that Donald Trump will continue to be a dominant figure in the Republican Party moving forward, regardless of what happens in this trial. He has so much

influence over the Republican base. Many of those same voters are the voters who put those senators in office. So the fear is that Donald Trump would, you know, as he's threatened already, you know, back primary challengers to some of these Republican senators, if they are deemed to be not sufficiently pro Trump. And that is something that they are legitimately fearful of for future elections. And it's something that could actually hurt Republican chances to, to retake the House and the Senate in two years. And in four years, of course, when there's another presidential election. Right. When you mentioned that, I can't help but think about what's happening to some of the House and the Senate in two years and in four years, of course, when there's another presidential election. Right. When you mentioned that, I can't help but think about what's happening to some of the House Republicans right now who voted to impeach Trump like Liz Cheney, right? Yeah, Liz Cheney. So she's the chair of the House Republican Conference in the House,

and she just narrowly survived, or not just narrowly, but she, you know, a lot of people voted against her. A lot of people said that she should not hold a leadership position in the House Republican Conference anymore. Florida Republican Representative Matt Gaetz held a rally in Cheyenne, Wyoming today against Liz Cheney. I'll confess to you, this is my first time in Wyoming. I've been here for about an hour, and I feel like I already know the place a lot better than your misguided representative, Liz Cheney. She was probably among the most vocal Republicans in the House of the 10 who did vote to impeach, saying that there was no question that Donald Trump, in her words, fanned the flames of this entire operation to invade the Capitol and that

it wouldn't have happened without him, without his encouragement. You know, we've had a situation where President Trump claimed for months that the election was stolen and then apparently set about to do everything he could to steal it himself. That's the kind of attack that can never happen again. Our institutions held, but we all have an obligation to make sure that they continue to do so. So a lot of Republicans, pro-Trump Republicans in the House were angry with her and tried to force this vote to overthrow her, to remove her from House Republican leadership. It ultimately failed. But again, this was a secret ballot. the Republicans who might have otherwise wanted to declare their opposition to Liz Cheney were able to vote for her in a secret way such that they wouldn't have to disclose how they voted.

So I think that was part of the reason why she was saved there. But, you know, that just goes to show you that there is a true backlash to people like Liz Cheney. And, you know, just this weekend in her home state of Wyoming, the Wyoming Republican Party voted to censure her for her vote to impeach. Now, she says that really doesn't faze her, but it just goes to show you that the state-level Republican parties are really still with Donald Trump, and they're seeking active punishment against, you know, politicians, Republican politicians who go against Donald Trump. And speaking of Donald Trump, you know, he's been quite silent the last couple of weeks. I mean, I know he's been taken off Twitter, his sort of main source of communication.

But, you know, I'm guessing he's not going to be testifying in this impeachment trial, right? Donald Trump is not going to be testifying in this impeachment trial. That is correct. Donald Trump is not going to be testifying in this impeachment trial. That is correct. The House impeachment managers asked for his testimony, especially because his lawyer's initial filing last week kind of disputed a lot of the central facts to the case. So they said it was important to hear from him. But Donald Trump's spokespeople and his lawyers very quickly followed up and said, that's not happening. spokespeople and his lawyers very quickly followed up and said, that's not happening. We're not going to have Donald Trump testify as part of what they view as an unconstitutional proceeding in the first place. The question is whether the House impeachment managers are going to try to force votes on other witnesses. This is something that has put Democrats in a really

tough position because Senate Democrats, that is, they are very eager to get this trial in the rearview mirror and continue working on President Biden's nominees as well as his COVID-19 relief plan. And they don't want to be bogged down by sort of an elongated trial that looks at the actions of a former president. They say it's important to hold anyone and everyone accountable, but they don't want to drag on the trial. And that's why a lot of them are opposed to this idea of bringing in more witnesses, especially if they believe, as is likely here, that Donald Trump is not going to get convicted, and that he's going to get acquitted fairly easily. All right, Andrew Desiderio, thank you so much.

Thank you for having me. I appreciate it. All right. So in other U.S. news today, Republican Ron Wright has died. The Texas congressman is the first sitting member of Congress to die after contracting COVID-19. The 67-year-old tested positive for coronavirus last month. Wright had been diagnosed with lung cancer in 2018. Some of his final acts in office included voting against the certification of the 2020

election, introducing anti-abortion bills, and voting against impeaching Donald Trump. That's all for today. I'm Jamie Poisson. Thanks so much for listening to FrontBurner, and we'll talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.