Second Impeachment Trial Begins with Constitutional Debate on Trying Former President

The Senate’s second impeachment trial of Donald Trump began on February 9, 2021, with a four-hour constitutional debate centered on the fundamental question: can the Senate try a former president? In a 56-44 vote, the Senate affirmed that the trial was constitutional and could proceed, with six Republicans joining all fifty Democrats in support. The vote marked a critical early test that demonstrated Trump would likely be acquitted, as conviction would require 67 votes—meaning at least seventeen Republicans would need to vote guilty. The trial represented the first time in American history that a former president faced impeachment proceedings after leaving office, raising unprecedented constitutional questions that dominated the opening day’s arguments.

Presiding over the trial was Senator Patrick Leahy of Vermont, the Senate’s president pro tempore, rather than Chief Justice John Roberts who had presided over Trump’s first impeachment trial. The Constitution specifies that “When the President of the United States is tried, the Chief Justice shall preside,” but since Trump was no longer president, Roberts was not constitutionally obligated to participate. Roberts made clear he did not want to preside, likely seeking to keep the Supreme Court out of partisan political proceedings. Leahy, as the longest-serving senator from the majority party, held the constitutional position of president pro tempore and was the appropriate alternative. Vice President Kamala Harris also declined to preside, as using her would have presented “bad optics the Founders wanted to avoid.” Leahy emphasized his impartiality, noting his background as a trial lawyer and state prosecutor plus decades of presiding over Senate proceedings. Unlike Roberts in the first trial, Leahy retained his vote as a senator, which Trump’s legal team later argued created a conflict of interest.

Trump’s Defense Team’s Disastrous Opening

Trump’s legal team—comprised of Bruce Castor, David Schoen, and Michael van der Veen—delivered what was widely regarded as a shambolic opening presentation that drew harsh criticism even from Republican senators inclined to support Trump. Castor, a former Pennsylvania district attorney, delivered a meandering 45-minute argument that failed to address the core constitutional question and instead wandered through tangential topics. Republican senators were blunt in their assessments: Senator Lisa Murkowski of Alaska stated, “I was really stunned at the first attorney who presented for former President Trump. I 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.” Senator John Cornyn of Texas said bluntly, “I thought the President’s lawyer—the first lawyer—just rambled on and on and on and didn’t really address the constitutional argument.” Senator Ted Cruz of Texas, a staunch Trump ally, admitted “I don’t think the lawyers did the most effective job.” Even Harvard Law professor emeritus Alan Dershowitz, who had defended Trump in his first impeachment, criticized Castor’s performance, saying he had “no idea” what Castor was doing and could not detect a coherent argument.

Trump himself was reportedly “enraged” by Castor’s performance and told an aide “Bruce doesn’t go on TV again” after watching the presentation. The poor performance stood in stark contrast to the House impeachment managers’ focused and organized constitutional arguments, which several senators noted were far more compelling. Senator Bill Cassidy of Louisiana, who became the sixth Republican to vote that the trial was constitutional, explicitly cited the disparity in presentation quality: “The House managers had much stronger constitutional arguments. The president’s team did not.” Cassidy elaborated that the House managers “were focused, they were organized” and “made a compelling argument,” while “President Trump’s team were disorganized” and “did everything they could but to talk about the question at hand.”

Bill Cassidy’s Critical Vote Switch

Senator Cassidy’s decision to vote that the trial was constitutional represented the only Republican vote change from an earlier procedural vote on January 26, when the Senate had voted 55-45 on a similar question. The five Republicans who had previously voted for constitutionality—Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Patrick Toomey of Pennsylvania—were joined by Cassidy, bringing the total to 56-44. Cassidy’s switch was particularly significant because it demonstrated that the quality of the legal arguments mattered and that senators were evaluating the presentations on their merits rather than reflexively voting along partisan lines.

However, Cassidy’s vote also immediately triggered backlash from the Louisiana Republican Party, foreshadowing the pattern of retribution that would follow the trial. His willingness to break with Trump despite representing a conservative state showed both courage and the political risks facing Republicans who prioritized constitutional duty over party loyalty. The 56-44 vote made clear that at least eleven Republicans were open to the argument that trying a former president was constitutional, but it also revealed that Trump had a solid firewall of 44 senators who would likely vote to acquit regardless of the evidence presented.

Constitutional Arguments and Historical Precedent

The House impeachment managers argued that the Founders had explicitly contemplated impeachment of former officials, citing historical precedent from British parliamentary practice and early American cases. They emphasized that allowing presidents to escape accountability by resigning or running out the clock would create a dangerous “January exception” where presidents could commit grave offenses in their final weeks without consequence. The managers cited the 1876 impeachment trial of Secretary of War William Belknap, who had been tried and nearly convicted after resigning, as precedent that the Senate possessed jurisdiction over former officials.

Trump’s legal team argued that impeachment was fundamentally a removal mechanism and therefore could not apply to someone no longer in office. They contended that Trump, as a private citizen, was entitled to constitutional protections that impeachment proceedings did not afford, and that trying him would violate separation of powers. However, their arguments were undermined by Castor’s rambling presentation and internal contradictions, including Castor’s bizarre statement praising the House managers and acknowledging that Trump had lost the election—a claim Trump himself refused to accept.

The 56-44 vote to proceed demonstrated that a bipartisan majority of senators believed the trial was constitutional, even if they fell short of the two-thirds needed for conviction. The debate exposed fundamental questions about the limits of presidential power, the scope of impeachment, and whether presidents could be held accountable for offenses committed in their final days in office. The constitutional question would continue to provide political cover for Republicans who wished to avoid confronting the evidence of Trump’s conduct on January 6, allowing them to vote for acquittal on jurisdictional grounds rather than defending Trump’s actions substantively. This dynamic, combined with Trump’s defense team’s poor performance, set the stage for the dramatic days of evidence presentation that would follow.