USA TODAY International Edition
Senators’ awkward role in spotlight
Lawmakers serving as both jurors, witnesses to riot
WASHINGTON – Imagine a judicial proceeding where the prosecutors, the jurors and the judge also happen to be the eyewitnesses to the alleged crime.
Consider also if that proceeding happened in the same building where the lawlessness unfolded.
Welcome to the second impeachment trial of Donald J. Trump.
When the Senate convenes Tuesday to begin weighing whether the former president should be convicted on a charge he incited the pro- Trump mob that stormed the Capitol on Jan. 6, it will be far different from last year’s trial. Most any trial, really. Trump’s first impeachment centered on second- hand accounts of a private phone call pressuring the president of Ukraine to announce a political investigation into a political rival, Joe Biden and his son Hunter. The House held weeks of hearings, more than a dozen witnesses were called, and Supreme Court Chief Justice John Roberts presided over a Senate trial that ultimately acquitted Trump on both articles.
This time, the world witnessed in real- time the events of Jan. 6: Trump’s
speech near the White House telling the mob “If you don’t fight like hell, you’re not going to have a country anymore”; the deadly storming of the Capitol about a mile away; lawmakers hiding in fear; and the ransacking of offices.
Instead of holding hearings and calling witnesses as in Trump’s first impeachment trial, the House fast- tracked one article of impeachment days before Trump left office. Many Republicans contend the trial itself isn’t constitutional because Trump is no longer in office.
The result is an awkward dynamic for members of Congress, particularly the Senate. Just a month after the riot, 100 senators must decide whether to punish an ex- president for an insurrection whose targets were the very lawmakers who will determine his fate. For many it’s personal, because they must relive an assault that sent them and their staffs scrambling for their own safety.
“I was a judge for 13 years in state courts. I’m not used to a trial where there was actually no evidence presented,” said Sen. John Cornyn, R- Texas. “And I’ve seen these bizarre statements like, ‘ Well, we don’t need any evidence because we were the victims.’ So we’re the victims, the jurors. ... It’s just – it’s bizarre.”
The setting alone underscores the peculiarity of the proceedings.
Sen. Patrick Leahy, D- Vt., as Senate pro tempore, will preside over the trial in the very chamber rioters occupied and ransacked after overwhelming Capitol Police officers.
The nine Democratic House members who will act as impeachment managers, or prosecutors, are expected to include extended video and photo clips of the Jan. 6 attack that killed five, hoping the images of the violent insurrection will help remind jurors of the horror of that day and help sway reluctant Republicans to convict Trump.
Lawmakers pointed to their firsthand experiences as a factor in the debate over whether witnesses will be called.
“We were all there,” said Sen. Mike Braun, R- Ind., when asked whether witnesses should be called. “We were basically all eyewitnesses, so I don’t think it’ll make a big difference one way or the other.”
Democratic Sen. Chris Murphy said he’d like to hear from others.
“We were very limited witnesses. I saw what was happening inside the Senate chamber and two seconds of what was happening in the rest of the building as we retreated to safety,” he said. “I think we should allow for witnesses, if either side wants them.”
It’s unclear whether any witnesses will be called in the Senate. But the one Democrats most want – Trump himself – is refusing to appear.
Trump’s attorneys are calling a request for him to testify a “public relations stunt.” In a letter to lead impeachment manager Rep. Jamie Raskin and the other House prosecutors, Bruce Castor Jr. and David Schoen argued that needing testimony from the former president shows Democrats “cannot prove your allegations against the 45th President of the United States, who is now a private citizen.”
As the presiding officer, Leahy could wield enormous influence on the contours of the trial by issuing key rulings on the admissibility of evidence, for example.
But as a target of the assault on the Capitol, can he truly be unbiased? He says he not only can, he must.
“When presiding over an impeachment trial, the president pro tempore takes an additional special oath to do impartial justice according to the Constitution and the laws,” Leahy said in a statement. “It is an oath that I take extraordinarily seriously.”
Some senators are not looking forward to the trial, and not just because they don’t think the president should be tried or because they doubt their ability to be fair jurors.
Trump’s lawyers – and a number of Senate Republicans – argue the trial itself is unconstitutional because Trump is no longer in the White House and cannot be removed from an office he no longer occupies. But the argument that Trump couldn’t be tried as a private citizen was rebuffed by Democrats who said the Constitution requires the Senate hold a trial whenever a president is impeached – no matter whether they’ve left office.
Last month, 45 Senate Republicans voted not to hold the trial because it was unconstitutional. Though their effort failed, the 55- 45 vote to move ahead with the trial suggested Trump is likely to be acquitted because a two- thirds majority – or at least 67 votes – is needed for conviction.
For Iowa Republican Sen. Joni Ernst, who argues the trial is unconstitutional, the proceedings are personal as well.
“I wish that we didn’t have to go through this. The events on that day were horrible,” she told USA TODAY. “I wish President Biden would just enforce to everyone that we do need to move on, at some point. As Congress, we need to bring the nation together, and that’s not what we’re seeing, and it’s just sorely disappointing.”
Sen. Richard Durbin, D- Ill., the second- ranking Senate Democrat, said that during the trial he would remember Capitol Police Officer Brian Sicknick, who died after the riot.
“For everyone who makes the argument to ‘ get over it,’ I’ll remember one Capitol Police officer who gave his life to protect me and this Capitol,” Durbin said Wednesday on the Senate floor. “I’m also going to remember his family, the loss that they’ve endured because of a political exercise based on a big lie propagated by the former President of the United States.”