The NPR Politics Podcast - 56 Votes Is Enough To Continue Trump's Trial—But Short Of What's Needed To Convict

Episode Date: February 10, 2021

Six Republicans voted with Democrats that it is constitutional to try a former president in the Senate after he or she has left office. But it would take another 11 in order to convict him on the impeachment charge. Follow our live coverage.This episode: White House correspondent Tamara Keith, congressional correspondent Kelsey Snell, and justice correspondent Ryan Lucas.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Ryan Lucas. I cover the Justice Department. And I'm Kelsey Smalley. I cover Congress. Hear ye, hear ye, hear ye. All persons are commanded to keep silence 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. It is 5.59 p.m. on Tuesday, February 9th, 2021, and the second impeachment trial of former President Trump has begun. This first day was focused on the constitutional grounds

for the Senate trial, now that the president is the former president. And the Senate just voted a little bit ago in a mostly party line vote, but actually kind of sort of a little bit bipartisan that the trial should be allowed to proceed. On this vote, the ayes are 56, the nays are 44.

And pursuant to SBAS 47, the Senate having voted in the affirmative on the foregoing question, the Senate shall proceed. That was Senator Patrick Leahy of Vermont, the presiding officer for this trial. And that was also the end of the day. The day started with a very visceral video, sort of a super cut, a timeline of that very dark day, mixing video of the insurrection with video of President Trump with video of senators and members of Congress fleeing the chambers. House impeachment manager, Democrat Jamie Raskin of Maryland introduced the montage with a warning. And if we buy this radical argument that President Trump's lawyers advance, we risk allowing January 6th to become our future. And what will that mean for America?

Think about it. What will the January exception mean to future generations if you grant it? I'll show you. Democrats have said for weeks that their argument was going to be visceral, that it was going to be based on public evidence, that they said that they were going to be showing new videos and showing different ways of seeing what happened that day. And that's what that video really did.

They showed a video of Trump revving up the crowd at the rally that happened down near the White House. We fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore. They kind of interspersed that with the ramping up of the violence. These graphic videos you mentioned, it wasn't just that they were saying things explicitly. They were captioned explicitly. You could see the profanities. You could see the mob pressing in against the Capitol Police.

It was a, I mean, it was very difficult to watch. You saw people in the crowd storming the Capitol carrying Trump flags. You saw people in the crowd storming the Capitol carrying Trump flags. You saw people in the crowd carrying a Confederate battle flag. And there was also video at one point in time of what appeared to be the crowd beating a Washington, D.C. police officer and dragging him down the stairs. That is how intense, kind of right in the middle of the violence this video put you. And what today, the whole point of today, today's arguments were not in theory on the merits, though certainly both sides did make some of those arguments. But really, the point of today was to tease out whether it is constitutional to, he's already been impeached when he was president, but now he is no longer president, whether a former president can be tried by the Senate and potentially convicted by the Senate.

Yeah, the House managers spent about an hour and a half going through this. They looked to history. They looked at the text of the Constitution. And then they also brought up the analysis of current legal scholars, constitutional experts, and they pointed to what has become, I wouldn't go so far as to say a consensus, but certainly a growing number of people across the political spectrum who support the Democratic argument that a former president can indeed be tried by the Senate. And the argument that they're pushing back on, of course, is the argument that we would later hear from the president's team, which is the idea that you have to be a current office holder. You have to be the current president

of the United States to be impeached and then tried before the Senate. And they say that that just doesn't hold up. Now, I have to add to this that not every legal scholar agrees with that assessment. There is debate still within the legal community, but certainly house managers today were able to point to more than 150 or so, I would say, legal scholars across the political spectrum who side with the Democratic House managers on this question. You know, I think one moment that's going to stick with many people was Raskin's closing argument, where he was recounting his own story.

He was telling about what happened to him on January 6th, and his voice was cracking, he was choking up, and he was explaining that his daughter and son-in-law were in the Capitol that day, and it was one daylaw were in the Capitol that day. And it was one day after they had buried his son, who took his life just a few days before. You know, he described his family being barricaded in an office while members of the House were sending text messages to loved ones and fearing that they would die. And he described people taking off their pins that identified them as members of Congress. He even said that he talked to his daughter afterwards and she said she didn't ever want to go back to the Capitol. And then this is kind of

how he closed. Senators, this cannot be our future. This cannot be the future of America. We cannot have presidents inciting and mobilizing mob violence against our government and our institutions because they refuse to accept the will of the people under the Constitution of the United States. So this kind of gets to the broader strategy that we've heard from Democrats that they've been telegraphing, which is that they do not want this to be a trial about dry procedure or interpretations of the Constitution alone, that they want people to feel this. They want Republican senators to take a vote at the end of this trial and have to, you know, vote against the idea that all of the things that they witnessed, that they experienced,

that the country is trying to move past and recover from, that all of that was not an impeachable offense. He wants Republicans to have to take from, that all of that was not an impeachable offense. He wants Republicans to have to take full ownership of all of that when they vote. And then after a short break, it was time for the president's defense team to get up. And Bruce Castor Jr. had the misfortune, maybe, I don't know if that's the right word, of following this very emotional closing from Raskin. And I'm told by an aide to President Trump that the whole purpose of Castor's very long, very meandering introduction was simply to try to calm the emotions, to cool things off before they went and made their real argument. Yeah, if we thought that Castor was going to get up and provide a very kind of coherent, well-organized rebuttal to what we had just heard from house managers, that is not what we got. kind of a folksy at times, rambling 40 minute or so speech in which I think a lot of us were

struggling to figure out what his exact point was. He did have some in there, but it was not a coherent body of arguments. Ultimately, another attorney got up, David Schoen, and he came out swinging, right, Ryan? Schoen, in no uncertain terms, made it clear that he views this as House Democrats using impeachment as a political weapon to eliminate a rival, a man who he essentially said Democrats were afraid of facing again in an election, and therefore they want to use impeachment as a means to bar him from running for office or holding office in the future. With this trial, you will open up new and bigger wounds across the nation, for a great many Americans see this process for exactly what it 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 dare to share their political beliefs and vision of America. So yeah, you are not hearing really a legal argument there. That is most definitely more of an emotional and a political argument, which is not to say that Schoen did not later on in his speech get into some of the legal arguments that Trump's defense team is going to try to make. And on the question of jurisdiction and constitutionality, the argument that Schoen made is the same one that we have heard from his team before, which is that the Constitution in their reading says that you have to be a current officeholder. You have to

be the current president of the United States in order to be impeached and removed from office. All right, we are going to take a quick break. And when we come back, which Republicans sided with Democrats to move forward with the trial? My name is Peter Sagal, and I'm here to interrupt your very serious NPR podcast to tell you about another NPR podcast, mainly mine, Wait, Wait, Don't Tell Me. Chances are that right now you're enjoying an earnest, serious treatment of some serious topic in the news or perhaps history or science. That's great, really. Well, that's not what we do do because people cannot live on serious alone. Listen now to the Wait, Wait, Don't Tell Me podcast from NPR.

And we are back. And I want to talk about which Republicans ultimately ended up siding with Democrats to say that this trial is constitutional. I guess, Kelsey, what stands out as most interesting here is that there had been sort of a, I don't know, a dry run vote on this question not that long ago. And there were 55 Republicans, but today there were 56. Yeah, the person who changed their mind is Senator Bill Cassidy from Louisiana. He came out afterwards with a statement basically saying that the arguments from Trump's lawyers weren't good he said that you know that he first clarified that his vote on the constitutionality question was not anyway a way to kind of divine what he's going to do and when it comes to voting to convict but he just basically said that the president's team didn't didn't give a strong argument and he felt that the house managers argued a stronger hand as to why this was a constitutional trial and he voted

that way so um i guess we should note here that in order to actually convict and remove though he's already gone in order to convict president trump former Trump, you would need two thirds of the Senate. That would be 67 votes. It seems kind of unlikely that there are that many more Republicans who are suddenly going to be persuaded. I would say it's exceedingly unlikely. I think that the constitutionality vote does tell us where a lot of senators may be going when it comes to this. In the case of Senator Cassidy, perhaps it means that he will be voting against conviction. And he just didn't think that the president's lawyers did a great job here. One of the things that I hear when I talk to Republicans is that they still think that President Trump and his supporters are really the base of their own reelection prospects. They think that the party has moved in that direction and they do not want to alienate

those voters or potentially alienate President Trump, who hasn't ruled out running for a future office. And the interesting thing about this constitutionality question is, as convincing as the House managers may have been for Senator Cassidy, and as questionable as the Trump legal team's presentation may have been in the eyes of, we've already heard a couple of Republicans who thought that it was not particularly strong. The constitutionality argument has always been something that will give Republicans a reason to vote against conviction. You don't even have to address the merits of the case if you are already on the record saying

you think that the whole proceeding is unconstitutional. That is the value of having that vote in your back pocket. All right, well, let's look ahead to tomorrow. We are past the constitutional question, maybe. And the trial really begins in earnest. Kelsey, what are we going to have on tap? We're expecting more videos. We're expecting more of that argument that we saw kind of previewed in the 13-minute video we talked about at the beginning here. Democrats want to lay out a timeline where they show all of President Trump's actions leading up to January 6th. And they plan to kind of connect the dots for senators

about how they see that as being direct incitement of the crowd that went from the speech that President Trump was giving down Pennsylvania Avenue and mobbed the Capitol. Right. We will be back in your feeds tomorrow. It will be late because this trial is going to run into the night. The second day of the trial begins at noon. I'm Tamara Keith. I cover the White House. I'm Ryan Lucas. I cover the Justice Department.

And I'm Kelsey Snell. I cover Congress. And thank you for listening to the NPR Politics Podcast.