Trump's second impeachment trial: Day 4

By Meg Wagner, Melissa Mahtani, Melissa Macaya and Veronica Rocha, CNN

Updated 9:33 PM ET, Fri February 12, 2021
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1:23 p.m. ET, February 12, 2021

Meanwhile at Mar-a-Lago, a "convict Trump" banner flew over his club

From CNN's Allie Malloy and Jim Acosta

CNN
CNN

A banner reading “CONVICT TRUMP AND LOCK HIM UP” was flown over former President Trump’s club Mar-a-Lago before his lawyers began their defense in his second impeachment trial.

The banner flew over Trump’s club in Palm Beach only minutes before his defense team's arguments.

His defense team is speaking right now on the Senate floor. His attorney Michael van der Veen called the article of impeachment against Trump "an unjust and blatantly unconstitutional act of political vengeance."

 

1:04 p.m. ET, February 12, 2021

Defense team shows clips of Schumer appearing to threaten Kavanaugh and Gorsuch

From CNN's Dan Berman

Former President Trump's lawyers have twice shown video of now-Senate Majority Leader Chuck Schumer at a March 2020 pro-abortion rights rally when he appeared to threaten Supreme Court Justices Neil Gorsuch and Brett Kavanaugh.

"I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions," Schumer said.

Those comments drew a very rare public rebuke from Chief Justice John Roberts, who has also sparred with Trump about the independence of the judiciary.

"Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter," Roberts said.

Schumer later apologized, saying, "I shouldn't have used the words I did, but in no way was I making a threat, I never, never would do such a thing."

12:46 p.m. ET, February 12, 2021

GOP senator says there is "real concern" about the quality of Trump's defense

From CNN's Jeff Zeleny

A Republican senator tells CNN there is “real concern” about the quality of the former President Trump team’s defense today, saying a poor performance will make it even more difficult to defend their expected votes to acquit him. 

“The last thing we need is to have a repeat of the disaster that we saw on Tuesday,” the senator said.

The senator, who has been among those paying far closer attention to the proceedings in the chamber than many colleagues, said there is no question the House impeachment managers’ presentation will almost certainly be stronger that the defense presentation. But the senator said Republicans hope the defense is presented “in a professional and serious way – unlike the rambling show” from the first day of the trial.

This senator, along with many others, are clinging to the idea that convicting a former President is not constitutional, despite that matter being settled on a 56-44 vote on Tuesday.

Senators have been told to expect to have dinner in the Capitol on Friday evening, with the question portion of the trial expected tonight.

12:46 p.m. ET, February 12, 2021

Trump defense attorney calls impeachment proceedings "constitutional cancel culture"

From CNN's Adrienne Vogt

Senate TV
Senate TV

Michael van der Veen, a defense attorney for former President Trump, called the unprecedented second impeachment trial “constitutional cancel culture” in his opening presentation. 

Van der Veen called impeachment proceedings “plainly unconstitutional.” 

“In effect, Congress would be claiming…the right to disqualify a private citizen no longer a government official from running for public office,” he said. “…In short, this unprecedented effort is not about Democrats opposing political violence. It is about Democrats trying to disqualify their political opposition. It is constitutional cancel culture.”

Van der Veen said the “canceling” would extend to those who voted for Trump.

“History will record this shameful effort as a deliberate attempt by the Democrat party to smear, censor and cancel not just President Trump, but the 75 million Americans who voted for him. Now is not the time for such a campaign of retribution. It is the time for unity and healing and focusing on the interests of the nation as a whole,” he said. 

12:43 p.m. ET, February 12, 2021

GOP senator defends his meeting with Trump's lawyers last night

From CNN's Ted Barrett

Ting Shen/Bloomberg/Getty Images
Ting Shen/Bloomberg/Getty Images

Sen. John Cornyn, a Republican from Texas, defended his meeting with former President Trump's defense lawyers last night.

Cornyn was one of three GOP senators to meet with the defense team.

“Well this, obviously, is not a trial in the traditional sense. That would not be appropriate at a trial. But this is a political exercise as much as anything else so there’s no prohibition on that,” Cornyn said. 

“Obviously, in a normal legal proceeding, that would not be permissible,” he added.

CNN is seeking additional comment from Sen. Lindsey Graham of South Carolina and Sen. Ted Cruz of Texas, the two other Republicans who met with Trump’s team of lawyers Thursday night where they discussed the legal strategies the lawyers would pursue in their arguments today.

Another Republican, Sen. Mike Lee from Utah, refused to answer a question from CNN whether it was appropriate for him to meet with Trump’s defense counsel while also being a sworn juror in his impeachment trial.

12:39 p.m. ET, February 12, 2021

Senate Democrats plan to limit the number of questions they'll ask both teams

From CNN's Manu Raju

Democratic senators discussed today limiting the number of questions they plan to ask the impeachment managers and former President Trump's attorneys.

It's unclear how many questions they might ask — one Democratic Senate source said perhaps just five on their side — but the belief is there's no need to further clarify what they believe is a slam-dunk case from House Democrats.

This also is another indication that the question period — which is expected to happen as soon as tonight — is not expected to go the full four hours as allotted under the Senate trial rules.

As in the first impeachment last year, these questions are submitted in writing and then read out loud by the presiding officer. In this case, that will be Sen. Patrick Leahy, the longtime Vermont Democrat.

12:37 p.m. ET, February 12, 2021

Fact check: Is it constitutional for Trump to be tried in the Senate after leaving office?

From CNN’s Holmes Lybrand and Tara Subramaniam

Questions have arisen over the constitutionality of former President Trump's trial in the Senate, and it is a central part of the Trump defense team’s argument. 

Trump's defense attorney Michael van der Veen claimed during today's proceedings that the Democrats' article of impeachment is an "unjust and blatantly unconstitutional act of political vengeance."

At the start of the impeachment trial on Tuesday, the Senate voted that the second impeachment trial of Trump is constitutional. The 56 to 44 vote, however, showed why there's little path for the House managers to obtain the two-thirds majority needed for conviction, as all but six Republican senators voted for a second time that the trial was unconstitutional because Trump is no longer president.

Trump is the first president to be impeached twice and is the first ex-president to have his impeachment tried in the Senate while out of office. 

Following Trump's most recent impeachment in the House, former US Circuit Court Judge J. Michael Luttig weighed in on some constitutional questions, writing on Jan. 12 in the Washington Post that "Congress loses its constitutional authority to continue impeachment proceedings against" Trump after he leaves office because "the Senate's only power under the Constitution is to convict — or not — an incumbent President."

Senate Democrat Richard Blumenthal called arguments questioning the constitutionality "bogus," saying that "[T]here's nothing in the Constitution that prevents any federal officer from being tried after they're out of office."

Facts First: Given the limited language in the Constitution on impeachment, legal experts disagree about whether the Senate can convict a former president. However, Democrats, who hold a slim control of the Senate, have gone forward with a trial.

Under the Constitution, the House can impeach a President for "treason, bribery or other high crimes and misdemeanors." Then the Senate holds a trial and needs a two-thirds majority to convict and remove the President from office. Another vote would be necessary to bar the then ex-President from holding office again, but this vote would require only a simple majority.

The Constitution doesn't specifically address convicting an ex-President but simply says "The President," VP and all civil officers "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Read more here.

12:30 p.m. ET, February 12, 2021

GOP senator wants Trump lawyers to address Tuberville call

From CNN's Ali Zaslav, Lauren Fox and Jeremy Herb 

Nicholas Kamm/AFP/Getty Images
Nicholas Kamm/AFP/Getty Images

Sen. Bill Cassidy, a Republican from Louisiana, says he wants former President Trump’s lawyers to address the call that Trump had with Sen. Tommy Tuberville on Jan. 6 as the riot was happening.

Trump had called Tuberville, a Republican from Alabama, to convince him to make additional objections to the Electoral College vote in a futile effort to block Congress' certification of President-elect Joe Biden's win, according to a source familiar with the call.  In that call, Tuberville says he told Trump that then Vice President Mike Pence was being evacuated. That call was before Trump tweeted about Pence. 

Trump's tweet said: "Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"

“The President clearly had knowledge at that point and then the tweet went out,” Cassidy said.

“You put all that together and it gives it a special credibility … so the point being, that I would like both sides to address that, certainly the defense team. How would they explain that away if you're going to explain that away?”

Cassidy was one of six Republicans to vote that the impeachment trial is constitutional.

12:24 p.m. ET, February 12, 2021

Trump's lawyer calls impeachment article an "unconstitutional act of political vengeance"

Senate TV
Senate TV

Former President Trump's lawyers have returned to a familiar "witch hunt" argument and cited free speech in their arguments before the Senate today.

Attorney Michael van der Veen opened his arguments by criticizing the proceedings.

"The article of impeachment now before the Senate is an unjust and blatantly unconstitutional act of political vengeance," he said. "This appalling abuse of the Constitution only further divides our nation when we should be trying to come together around shared priorities. Like every other politically motivated witch hunt, the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence, and the interests of the American people. The Senate should promptly and decisively vote to reject it."

Van der Veen went on to argue that Trump's speech on Jan. 6 before the Capitol riot "explicitly encouraged those in attendance to exercise their rights peacefully and patriotically."