Considering Trump's Second Impeachment Trial

To the Teacher:

The end of the Trump presidency has been historic, including in this way: Never before has a U.S. president been impeached more than once.

In this lesson, students will discuss the impeachment trial in the Senate in February 2021. They will consider the sequence of events leading up to the trial, the events at the Capitol on January 6, and the arguments for and against conviction.

This may be a sensitive issue in your class. Consider revisiting your class’s community agreements to ensure that everyone is respected during the discussion. See these additional guidelines for discussing controversial or upsetting issues.

Introduction

Ask students to share:

Have you followed Trump’s second impeachment and trial?
What has most struck you about it?

Begin by reviewing with students some of the events that have taken place leading up to Trump’s second impeachment and trial.

Alternatively, ask students to read the chronology and list of participants below on their own before you begin your classroom discussion. See this pdf version of the chronology and participants’ list.

Chronology of events

December 18, 2019:
The House of Representatives impeached President Trump for attempting to use U.S.foreign policy to damage his political opponent. Note: Impeachment officially charges the president with a serious offense and then it’s up to the Senate to convict or acquit. Only two other presidents have been impeached. None, including Trump, have been convicted.

November 3, 2020:
Joe Biden won the presidential election by 7,052,770 votes.

November 4, 2020 - January 4, 2021:
Every court case (over sixty of them, with one minor exception) challenging the election results was thrown out.

December 14, 2020:
Each state certified the winner of their state’s electoral votes. Joe Biden won 306 electoral votes, Trump won 232. All major news outlets, including Fox News, reported these election results. Republican leaders, including then Senate Majority Leader Mitch McConnell, acknowledged Biden’s win. However, Trump and some of his supporters refused to concede.

January 6, 2021:
Trump gave a speech to supporters near the White House urging them to march to the Capitol and “Stop the Steal.”

January 6, 2021:
Thousands of Trump partisans attacked the Capitol. Though members of Congress and their staffs were evacuated (some only minutes before the mob approached), the mob injured dozens of police officers, ransacked offices, and held parts of the building for hours. Five people died during the insurrection, including one police officer.

January 13, 2021:
The House of Representatives voted to impeach Donald Trump for inciting the mob to storm the Capitol.

January 20, 2021:
Trump’s term as president ended. Joe Biden was inaugurated as president and Kamala Harris as vice president.

January 26, 2021:
The Senate began deliberations on the impeachment. Conviction requires a two-thirds vote of the Senate, which is now 50 Democrats and 50 Republicans (with Vice President Kamala Harris casting the deciding vote in the event of a tie). If a president is convicted, the Senate can further vote to disqualify the president from serving in future federal office. (That vote takes only a simple majority.)

January 26-February 9, 2021:
Negotiations about Senate trial procedures.

February 10-11, 2021:
The House managers present their case for conviction to the Senate.

February 12, 2021:
Trump’s lawyers present their defense. The defense and prosecution teams take questions from senators.

February 13, 2021:
Closing arguments and the final vote. A majority (57) vote to convict, but a two-thirds majority (67 votes) is necessary for conviction.

The participants

Speaker of the House Nancy Pelosi (D) chose a team of nine “House managers” to present the case to the Senate. If it were a criminal case, the managers would be the equivalent of the prosecution team. The team of House managers was led by Representative Jamie Raskin, Democrat from Maryland.

Former President Trump's defense team included Michael Van der Veen and Bruce Castor. They were last-minute appointments after his original team quit two weeks before the trial.

Under the Constitution, after hearing the evidence from both teams, the full Senate, by a majority vote, can decide to either acquit or convict. The senators are, in effect, the jury.

Senator Patrick Leahy, as the senior Democratic senator (or president pro tempore of the Senate) presided over the trial. If Trump were still in office, the Constitution would have assigned that job to the Chief Justice of the Supreme Court. Senator Leahy’s role is to rule on procedural questions, much as a judge does in a court trial.

Part l: The Case Against Trump

Before the Senate could even begin considering the evidence, they had to establish the legitimacy of the trial itself. Senate Republicans challenged the constitutionality of convicting a president who was no longer in office.

Six Republicans joined all fifty Democrats voting to proceed with the trial.

The House managers, led by Representative Jamie Raskin, began their arguments on February 10. They made a number of contentions to support their motion to convict Trump of “high crimes and misdemeanors”:

Former President Trump exhorted his supporters to come to Washington at the exact time that Congress was meeting to ratify the election results.
The language Trump used in his January 6 speech led to the violent storming of the Capitol. As House Manager Rep. Joe Neguse argued:

"Was it foreseeable that the violence would erupt on January 6th if President Trump lit a spark? Was it predictable that the crowd at the 'Save America rally' was poised on a hair trigger for violence that they would fight literally if provoked to do so? Of course it was. When President Trump stood up to that podium on January 6th, he knew that many in that crowd were inflamed, were armed, were ready for violence. It was an explosive situation. And he knew it.”

Trump deliberately stoked anger and resentment in his repeated lies about election fraud.
Trump did nothing for hours to halt the violence after the attack (and in fact continued to incite the mob after the breaching of the Capitol).
Trump did not order protection for Congress and the Capitol after the attack had begun.
The attack was planned so openly that Trump had ample time to discourage the rioters from using violence.
Trump’s rhetoric for months before the election about “stealing votes” encouraged violence toward Democrats and state legislators around the country.
The rioters’ own words indicate they believed that they were there at Trump’s urging.

Discuss:

What arguments, if any, stand out for you? Why?

Next, watch this video, an 8-minute portion of Raskin’s speech before the Senate:
https://www.youtube.com/watch?v=Jp2cs2lQz6E

Discuss:

Raskin uses the former President’s own words to show that Trump encouraged the mob to stop Congress from acting to ratify Joe Biden as President. But Trump never directly urges his followers to attack. Should this matter? Was his intent clear enough?
Donald Trump took three hours after the breach of the Capitol to tell his supporters to “Go home now.” At the same time, he told them, “We love you. You’re very special.” How damning is that of the President’s intent?
If Trump were angered or displeased by the actions of his followers, what could he have done when he first heard of the violence?
What do you think of Jamie Raskin’s warning at the end of the clip, that taking no action will encourage further insurrections?
Does the attempt to reverse the election—especially in the context of a norm-breaking presidency—say anything about the fragility of our democratic system?
How convincing is Jaime Raskin’s speech? To Democrats? To Republicans? To the Senate?

Rep. Raskin on First Amendment arguments

Consider watching this 6-minute video, in which lead House Impeachment Manager Rep. Jamie Raskin explains why Trump’s words are not examples of “free speech” and protected by the First Amendment:
https://www.cnn.com/videos/politics/2021/02/10/raskin-trump-first-amendment-impeachment-trial-two-vpx-sot.cnn/video/playlists/trumps-second-impeachment-trial/

Raskin discusses a quote by former Supreme Court Justice Oliver Wendell Holmes, who said, "you can't shout fire in a crowded theater." Raskin says:

This case is much worse than someone who falsely shouts out fire in a crowded theater. It's more like a case where the town fire chief – who's paid to put out fires – sends a mob not to yell fire in a crowded theater, but to actually set the theater on fire. And who then when the fire alarms go off and the calls start flooding into the fire department asking for help, does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV with glee and delight.

Discuss:

Do you agree with Raskin’s analogy? Why or why not?

Raskin also argues that while private citizens have a First Amendment right to talk about their support for the enemies of the United States, someone in the position of the presidency does not have that right: “If you're President of the United States, you've chosen a side with your oath of office and if you break it, we can impeach, convict, remove, and disqualify you permanently from holding any office of honor, trust, or profit under the United States,” Raskin argued.

Discuss:

Do you agree with Raskin’s argument about this? Why or why not?

Part 2: The Case for Trump & Conclusion

Former President Trump’s lawyers began their defense on February 12, 2021. Though they were allotted up to sixteen hours (as were the House managers), they used only three hours. Donald Trump chose not to testify.

Trump’s lawyers presented an aggressive defense, choosing to attack the Democrats as much as defend the ex-president. They argued that Trump urged only peaceful protest and that the impeachment was motivated by Democrats’ hatred of Trump.

They contended that:

Trump’s January 6 speech encouraged only peaceful action.
The use of the word “fight” was meant only figuratively, not literally. They also argued that Democrats also use the word, as demonstrated in their video, which featured many Democratic senators using “fight” in their speeches. Said Trump attorney Michael van der Veen:

“Suddenly, the word ‘fight’ is off limits? Spare us the hypocrisy and false indignation. It’s a term that’s used over and over and over again by politicians on both sides of the aisle. And, of course, the Democrat House managers know that the word ‘fight’ has been used figuratively in political speech forever.”
Trump is entitled to Constitutional freedom of speech.
The entire process was unconstitutional because Trump was already out of office and impeachment is intended to remove someone from office.
Trump had always supported the police and has often called for “law and order.”
The impeachment was a political witch hunt.
That only a small portion of Trump’s rally participated in the violence (and that Antifa was involved).

Watch Trump lawyer Michael van der Veen make the case that Trump’s rhetoric is protected free speech and cannot be considered incitement to violence in this 10-minute video:

https://www.cbsnews.com/video/trump-impeachment-defense-first-amendment-democrats-rhetoric/#x

Discuss:

Do you agree that a President’s free speech is equivalent to an ordinary citizen’s freedom of speech? Or do you agree with Representative Raskin’s argument that impeachment, which is not a criminal offense, is appropriate when a president’s speech violates their oath of office?
Was it persuasive to show that Democrats also urge people to “fight”?
The House managers put the January 6 speech into the context of Trump’s months-long effort to whip up anger and resentment about non-existent voter fraud. Trump’s lawyers chose to focus solely on Trump’s January 6 speech preceding the insurrection. Which approach is more convincing?

Consider watching this additional 4-minute video of Trump lawyer Bruce Castor. In this clip, Castor argues that the Democrats are impeaching Trump to keep him from running for president in 2024, and that the impeachment is an example of suppressing political speech:

https://www.youtube.com/watch?v=3l_V93mS8Qw

Discuss:

Are you familiar with the term “cancel culture” used by conservatives to describe efforts by progressives and people of color to limit hate speech? According to Trump attorney Bruce Castor: "That’s what this trial is really about. It is the only existential issue before us. It asks for constitutional cancel culture to take over in the United States Senate. Are we going to allow canceling and banning and silencing to be sanctioned in this body?”
Is that what the trial was about, in your opinion?
Castor accuses the Democrats of impeaching Trump to remove him as an electoral threat. Do you agree? Or do you accept the Democrats’ argument that Trump was attempting to remain president by any and all means—including violence?

The Trial Concludes

After Republicans completed their arguments, House impeachment managers briefly considered extending the trial to include testimony from Republican Rep. Jaime Herrera Beutler of Washington. She reported that in a conversation with Republican House Minority Leader Kevin McCarthy, Trump seemed to have sided with the rioters as his supporters stormed the Capitol.

But Republicans threatened that if the trial were extended, they too would call on many witnesses – and might also block President Biden’s nominations to fill top administration positions. In the end, Democrats decided not to call witnesses, and instead read Herrera Beutler’s statement into the record.

The Senate moved to a vote, which took place on Feb. 23. The vote was 57 to convict, 43 to acquit—ten votes short of the 67 votes needed to convict. Seven Republican senators voted to convict Trump: Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Patrick J. Toomey of Pennsylvania.

After the vote to acquit, Senate leaders Chuck Schumer (Democrat) and Mitch McConnell (Republican) delivered concluding remarks. McConnell, who voted against conviction and who was until recently a consistent ally of Donald Trump, gave an astonishingly harsh criticism of the ex-president:

There's no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it. The people that stormed this building believed they were acting on the wishes and instructions of their president.

This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.

McConnell’s remarks were not substantially difference from what the House managers had been arguing throughout the trial. Where McConnell parted ways was belief that the Senate trial after Trump had already left office was not in accordance with the Constitution.

Throughout his years as the majority leader in the Senate, McConnell earned a reputation as the consummate politician—exercising every ounce of his power to thwart the Democrats and advance the conservative agenda.

Discuss:

What do you think of McConnell's decision to vote to acquit Trump but condemn his behavior in a statement afterwards?
Do you think McConnell's post-trial condemnation of Trump, but vote to acquit, stemmed from constitutional principle or was it a tactical decision in a looming battle for control of the Republican Party?