The bad news for him is that this jury is so deeply rigged for acquittal among Republicans that it’s almost impossible to argue them into voting with the Democrats. And yet Castor did a bad enough job that he succeeded in flipping one Republican from no in January on holding the trial to yes today.
This now makes two historical precedents that it’s constitutional to try an official who’s been impeached but has since left office. The earlier precedent, the case of William Belknap in the 19th century, was even more aggressive in asserting Congress’s power than today’s vote in that Belknap had already resigned (by a few minutes) before the House got around to impeaching him. Trump was still president, of course, when the House lowered the boom on him on January 13.
The 56-to-44 vote, with six Republicans joining all 50 Democrats, paved the way for the House Democrats trying the case to formally open their arguments on Wednesday afternoon as they seek to prove that Mr. Trump incited an insurrection by encouraging supporters who stormed the Capitol last month and disrupted the counting of Electoral College votes.
But the 44 Republicans who agreed with Mr. Trump’s claim that a former president cannot be subject to an impeachment trial seemed to all but guarantee that he would have the 34 votes he needs on the final verdict to avoid conviction. To succeed, the House managers would need to persuade at least 11 Republican senators to find Mr. Trump guilty in a trial that they have deemed unconstitutional.
Five of the six Republicans who voted with Democrats this time voted the same way two weeks ago: Romney, Murkowski, Collins, Sasse, and Toomey. The new guy joining them is Bill Cassidy of Louisiana. Why? Well, because the defense sucked:
CASSIDY: "President Trump’s team was disorganized….if I'm an impartial juror, and one side is doing a great job, and the other side is doing a terrible job, on the issue at hand, as an impartial juror, I'm going to vote for the side that did the good job." pic.twitter.com/PxNh2lRGBC
— Alan He (@alanhe) February 9, 2021
Sen. Bill Cassidy: “If anyone disagrees with my vote and would like an explanation I ask them to listen to the arguments presented by the House Managers and former Pres. Trump’s lawyers. The House managers had much stronger constitutional arguments. The president’s team did not.” pic.twitter.com/9rNujZFHDR
— Phil Mattingly (@Phil_Mattingly) February 9, 2021
Murkowski was always going to vote yes but Castor didn’t make it hard for her:
MURKOWSKI tells the Capitol pool that Trump's Day 1 argument was a "missed opportunity" and she was "stunned" by Castor:
"Couldn't figure out where he was going. Spent 45 minutes going somewhere, but I don't think he helped with us better understanding where he was coming from."
— Kyle Cheney (@kyledcheney) February 9, 2021
Liberals are reminding people this afternoon that one of the reasons Trump wasn’t tried until after he left office was because Republicans wouldn’t grant unanimous consent to begin the trial before January 20 when Schumer floated the idea. They made Trump’s constitutional defense possible through their own delay tactics! Right, but even if the trial had begun before January 20, while Trump was still in office, it likely would have ended after that date — in which case Republicans would have simply argued that the trial became moot after noon on Inauguration Day. And don’t forget that Pelosi dallied by holding the article of impeachment for a week after January 6 when moving more quickly could have forced the Senate to move sooner. Although let’s be real: Even if she had moved to impeach immediately after the riot, Senate Republicans would have claimed that Trump never received due process in the House and therefore it wouldn’t be fair to convict him at trial, never mind that his lawyers would be given a full opportunity before the Senate to make their case.
There was always going to be a process excuse here for acquitting Trump. It was a simple matter of finding one that they could make with a straight face.
The core argument that it’s constitutional to try a former official is that the alternative would lead to absurd and pernicious incentives, with the president entitled to go on a rampage of bad behavior in his final weeks in office and then dodge the consequences by resigning before he’s tried. In that situation, the president would have a de facto veto over the Senate’s power to convict and disqualify officials and the Constitution doesn’t say anything about a presidential veto. Castor countered that today by arguing that that fear is overblown because, after all, the DOJ can always prosecute a president after he leaves office. Right — but what if his actions don’t rise to the level of a statutory crime? What if he’s guilty of a gross abuse of power, like spending two months brainwashing people into believing an election was being stolen, that doesn’t break any criminal law? The obvious sanction in a case like that is to let the people’s representatives declare that that official has proven himself so thoroughly unfit for office that he can’t hold office again, even if what he’s guilty of wouldn’t land him in prison. That’s all today’s vote was about and it came out the right way. Let future presidents tempted to abuse their power in their final weeks beware.
I’ll leave you with the point below, which is correct. Once the threshold question of jurisdiction is settled, the jury is supposed to render a verdict based on the facts, not based on their personal opinions of whether the jurisdictional issue was properly decided. But Republicans aren’t going to give up their constitutional fig leaf for acquitting Trump. Exit question: Is Cassidy’s vote on whether to convict Trump now in play? Given that he represents a very red state I’m guessing no. He’s going to wimp out just as Mitch McConnell, who was supposedly “pleased” at seeing Trump impeached, did today.
In criminal cases, once a Constitutional pre-trial defense has been heard and denied, it typically is off the table when it comes to the merits of the trial itself.
I know this is not a criminal case, but Senators are free to (and should) operate under the same principle here.
— Elie Honig (@eliehonig) February 9, 2021