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Trump's 2nd impeachment trial deemed constitutional in Senate vote, will continue

U.S. Senators in Donald Trump's historic second impeachment trial agreed Tuesday to go ahead and consider the case, rejecting an attempt by the former president's defence team and some Republican allies to halt the trial because he is no longer in office.

Senators vote 56-44 in favour, with most Republicans against

Donald Trump looks on at the end of his speech during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, U.S, January 6, 2021. (Jim Bourg/Reuters)

U.S. Senators in Donald Trump's historic second impeachment trial agreed Tuesday to go ahead and consider the case, rejecting an attempt by the former president's defence team and some Republican allies to halt the trial because he is no longer in office.

The vote was 56-44 on the question of whether the Senate has jurisdiction and could proceed. Six Republicans joined the Democrats to support going ahead with the case. 

The trial opened Tuesday in the Senate with Democrats showing graphic video of the deadly Jan. 6 attack on the U.S. Capitol and the defeated former president whipping up a rally crowd — saying "We're going to walk down to the Capitol!" — as he encouraged a futile fight over his presidency.

The lead House prosecutor told senators the case would present "cold, hard facts" against Trump, who is charged with inciting the siege of the Capitol to overturn the presidential election he lost to Democrat Joe Biden. Senators sitting as jurors, many who themselves fled for safety that day, watched the jarring video of the chaotic scene, which included rioters pushing past police to storm the halls and Trump flags waving.

"That's a high crime and misdemeanor," said Rep. Jamie Raskin, in opening remarks. "If that's not an impeachable offence, then there's no such thing."

Trump is the first president to face impeachment charges after leaving office and the first to be twice impeached . The Capitol siege stunned the world as rioters ransacked the building to try to stop the certification of Biden's victory, a domestic attack on the nation's seat of government unlike any in its history. Five people died.

A Donald Trump flag is seen as a mob climbs through a window they broke at the U.S. Capitol Building in Washington on Jan. 6. (Leah Millis/Reuters)

Figure of speech, say lawyers

Each side had two hours to make its case on Tuesday, after which the Senate rejected the Republican efforts to dismiss the trial.

Trump's lawyers insisted that he is not guilty on the sole charge of "incitement of insurrection," his fiery words just a figure of speech, even as he encouraged a rally crowd to "fight like hell" for his presidency. 

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. 21:38

While acquittal is likely, the trial will test the nation's attitude toward his brand of presidential power, the Democrats' resolve in pursuing him, and the loyalty of Trump's Republican allies defending him.

"In trying to make sense of a second Trump trial, the public should keep in mind that Donald Trump was the first president ever to refuse to accept his defeat," said Timothy Naftali, a clinical associate professor at New York University and an expert on Richard Nixon's impeachment saga, which ended with Nixon's resignation rather than his impeachment.

"This trial is one way of having that difficult national conversation about the difference between dissent and insurrection," Naftali said.

Security remained extremely tight at the Capitol, a changed place after the attack, fenced off with razor wire and armed National Guard troops on patrol. The nine House managers walked across the shuttered building to prosecute the case before the Senate.

WATCH | Trump's 2nd impeachment trial gets underway in Washington:

Trump’s unprecedented 2nd impeachment trial opens

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Democrats opened former U.S. president Donald Trump’s second impeachment trial with some of the worst scenes captured of the Capitol Hill riots on Jan. 6. While Trump’s conviction is unlikely, it could still serve to further divide Republicans. 2:32

Constitutional arguments 

The trial started with debate and a vote over whether it was constitutionally permissible to prosecute Trump after he is no longer in the White House.

Trump's defence team focused on that question of constitutionality, which could resonate with Republicans eager to acquit Trump without being seen as condoning his behaviour.

Lead lawyer Bruce Castor said that no member of the former president's defence team would do anything but condemn the violence of the "repugnant" attack, and "in the strongest possible way denounce the rioters."

David Schoen, left, and Bruce Castor Jr., right, lawyers for former U.S. president Donald Trump arrive at the Senate on Tuesday for the second impeachment trial of Trump. (Andrew Harnik/Pool via Reuters)

Yet Trump's attorney appealed to the senators as "patriots first," and encouraged them to be "cool headed" as they assess the arguments.

Trump attorney David Schoen turned the trial toward starkly partisan tones, the defence showing its own video of Democrats calling for the former president's impeachment.

Schoen said Democrats are fuelled by a "base hatred" of the former president and "seeking to eliminate Donald Trump from the American political scene."

No 'January exception' for presidents

The House prosecutors argued there is no "January exception" for a president on his way out the door. Rep. Joe Neguse, referred to the corruption case of William Belknap, a war secretary in the Grant administration, who was impeached, tried and ultimately acquitted by the Senate after leaving office.

"President Trump was not impeached for run of the mill corruption, misconduct. He was impeached for inciting a violent insurrection — an insurrection where people died, in this building," Neguse said. "If Congress stands by, it would invite future presidents to use their power without any fear of accountability."

At one pivotal point, Raskin told the personal story of bringing his family to the Capitol the day of the riot, to witness the certification of the electoral college vote, only to have his daughter and son-in-law hiding in an office, fearing for their lives.

"Senators, this cannot be our future," Raskin said through tears. "This cannot be the future of America."

Republicans critical of Trump's legal defence

Senate Republicans had sharp criticism for Trump's lawyers after their performance Tuesday.

Many said they didn't understand the lawyers' arguments as they sought to persuade the Senate to dismiss the trial on constitutional grounds. 

Republican Sen. Bill Cassidy, who voted with Democrats to move forward with the trial after voting against them in a similar vote two weeks ago, said Trump's team did a "terrible job" and was "disorganized," "random" and "did everything they could but to talk about the question at hand."

Republican Sen. Susan Collins, who also voted with Democrats, said she was "perplexed" by lead Trump lawyer Bruce Castor, "who did not seem to make any arguments at all, which was an unusual approach to take."

Sen. Ted Cruz, one of Trump's staunchest allies, said he didn't think the lawyers did "the most effective job," while praising Raskin, the Democrats' lead prosecutor, as "impressive." Sen. John Cornyn said Castor "just rambled on and on and on."

But both still voted to dismiss the trial, along with 42 other Republican senators.

Asked for a response to the Republican criticism, Castor said, "We had a good day." The other Trump lawyer, David Schoen, told reporters: "I always hope to improve."

WATCH | Trump's First Amendment rights could rest on intent:

The evidence for Trump’s 2nd impeachment trial

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The events, the words and the context leading up to the Capitol Hill riots will be the key evidence used in former U.S. president Donald Trump’s second impeachment trial in the Senate. 6:39

Witnesses unlikely

It appears unlikely that the House prosecutors will call witnesses, in part because the senators were witnesses themselves. At his Mar-a-Lago club in Florida, Trump has declined a request to testify.

Trump's defence team has said it plans to counter with its own cache of videos of Democratic politicians making fiery speeches. "We have some videos up our sleeve," senior Trump adviser Jason Miller said on a podcast Monday.

White House press secretary Jen Psaki said Tuesday that Biden would not be watching the trial of his predecessor.

"Joe Biden is the president, he's not a pundit," she said. "He's not going to opine on back and forth arguments."

Typically senators sit at their desks for such occasions, but the COVID-19 crisis has upended even this tradition. Instead, senators will be allowed to spread out, in the "marble room" just off the Senate floor, where proceedings will be shown on TV, and in the public galleries above the chamber, to accommodate social distancing, according to a person familiar with the discussions.

LISTEN | What the trial means for U.S. political institutions:

As former U.S. president Donald Trump's impeachment trial gets underway this week for his role in inciting the U.S. Capitol attack, some say the country's political institutions are at stake. To unpack the issue, Matt Galloway speaks with Ken Mack, the Lawrence D. Biele professor of law and affiliate professor of history at Harvard University, and Karen Tumulty, a political columnist for the Washington Post. 20:13

The Democratic-led House impeached the president swiftly, one week after the most violent attack on Congress in more than 200 years. 

A conviction in a Senate trial requires two-thirds — or 67 senators — to vote in favour.

With files from CBC News

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