With seven Republicans voting with all Democrats to convict, the Senate nevertheless voted Saturday afternoon to acquit former President Donald Trump, in his second impeachment trial, of a single charge of incitement of insurrection.
Americans, and apparently most senators, were under the impression that the Saturday session would feature closing arguments and perhaps a verdict.
Instead, hours before the final vote, the Senate was thrown into chaos with a last-minute prosecution call to hear from a witness and the prospect of that prompting numerous defense witnesses.
Behind closed doors, senators then cut a deal to call no witnesses after all.
House Democrats’ impeachment managers wanted to focus on a new media account of a phone call during the Jan. 6 riot at the Capitol in which House Minority Leader Kevin McCarthy, R-Calif., implored Trump to call off the mob.
Trump, two weeks away from leaving office, reportedly responded: “Well, Kevin, I guess these people are more upset about the election than you are.”
Here are key points from the fifth and final day of Trump’s second impeachment trial in the Senate, which is now split 50-50 between Republicans and Democrats.
1. Senate Vote 57-43
Democrats had hoped to convict Trump and then, by a simple majority vote, disqualify him from running again. Although Trump was acquitted, the Senate vote marked the most bipartisan of any final vote in a presidential impeachment trial in history.
The five-day trial also marks the shortest such Senate proceeding in history. The House impeached Trump with seven days left in his term.
Trump became the only former president to stand trial before the Senate and the only official to be twice impeached by the House and twice acquitted by the Senate.
The final vote was 57-43 to convict Trump, falling 10 votes short of the required two-thirds vote.
Sen. Richard Burr, R-N.C., was the biggest surprise among the seven Republicans who voted to convict, since he previously voted twice that the trial itself was unconstitutional because Trump no longer was president.
The other Republicans who voted to find Trump guilty—and also voted Tuesday that the trial was constitutional and should move forward—were Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, Pat Toomey of Pennsylvania, and Bill Cassidy of Louisiana.
This was a big difference from Trump’s 2020 Senate impeachment trial, when Romney was the only Republican senator to vote to convict and remove Trump from office. That also marked the first time in history that a senator from an impeached president’s party voted to convict.
2. Trump Breaks Silence
Trump, who has been banned from Twitter, his preferred platform, hadn’t spoken publicly since leaving office Jan. 20. However, the former president issued a statement after his Senate acquittal through the Twitter account dubbed TrumpWarRoom.
The former president thanked both his legal team and members of Congress who opposed his impeachment for incitement of insurrection in connection with the Capitol riot that occurred as lawmakers met Jan. 6 to certify the Electoral College vote that made Democratic nominee Joe Biden president.
“It is a sad commentary on our times that one political party in America is given a free pass to denigrate the rule of law, defame law enforcement, cheer mobs, excuse rioters, and transform justice into a tool of political vengeance and persecute, blacklist, and cancel people and viewpoints with whom they disagree,” Trump said in the written statement.
Trump also called himself a “champion of the unwavering rule of law.”
“This has been yet another phase of the greatest witch hunt in the history of our country,” he said. “No president has ever gone through anything like it, and it continues because our opponents cannot forget the almost 75 million people, the highest number ever for a sitting president, who voted for us just a few short months ago.”
Trump had been speaking at a huge rally near the White House to protest the official election results when rioters began their successful attempt to breach the Capitol. Democrats argued that the president’s urging of supporters to “fight like hell” was an incitement of insurrection.
3. What Beutler Said About Trump-McCarthy Call
What ensued Saturday morning began with a story Friday night about the Trump-McCarthy phone call that CNN treated as a bombshell, although Rep. Jaime Herrera Beutler, R-Wash., had talked about for several weeks.
Before CNN reported on the phone call, complete with an expletive directed by McCarthy at the president, the Daily News of Longview, Washington, had reported Jan. 17 on what Beutler said she was told about the call.
Beutler has said she shared the story of the Trump-McCarthy call with “thousands of residents” in a town hall meeting held by telephone Feb. 8, also covered by media in her congressional district, as reported by The Chronicle of Centralia, Washington.
The Senate impeachment trial began Feb. 9.
In a statement Friday night, Beutler again relayed her account of a conversation with McCarthy that she had talked about since mid-January to explain her Jan. 13 vote, with nine other Republicans, to join House Democrats’ impeachment of Trump.
“When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was [the leftist extremist group] Antifa that had breached the Capitol,” Beutler said, adding:
McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: ‘Well, Kevin, I guess these people are more upset about the election than you are.’
Since I publicly announced my decision to vote for impeachment, I have shared these details in countless conversations with constituents and colleagues, and multiple times through the media and other public forums.
Beutler also said: “To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: If you have something to add here, now would be the time.”
McCarthy himself did not tweet or issue a statement on the matter.
4. McConnell: Trump ‘Responsible for Provoking’ Riot
After the vote, Senate Majority Leader Charles Schumer, D-N.Y., sharply criticized the 43 Republican senators who voted to acquit Trump.
Senate Minority Leader Mitch McConnell, R-Ky., followed Schumer, explaining that his vote to acquit was because Trump no longer is in office and not because he believed the former president to be innocent.
“There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day,” McConnell told fellow senators. “No question about it. The people that stormed this building believed they were acting on the wishes and instructions of their president.”
McConnell said the riot by some Trump supporters was a “foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole” from Trump after his election loss Nov. 3.
“The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise,” said McConnell, who worked closely with Trump on key policy achievements such as confirming judicial appointments and passing tax reform.
Trump “seemed determined to either overturn the voters’ decision or else torch our institutions on the way out,” the Kentucky Republican said.
“We know that he was watching the same live television as the rest of us. A mob was assaulting the Capitol in his name,” McConnell said, noting that Trump did not act to stop the violence.
“The president did not act swiftly,” McConnell said. “He did not do his job. He didn’t take steps so federal law could be faithfully executed and order restored.”
However, McConnell said, it was not the job of the Senate to try private citizens. Just because Trump wasn’t convicted in the Senate doesn’t mean he got away with anything, the Republican leader said, suggesting that the former president still faces the court system.
“The question is moot because former President Trump is constitutionally not eligible [for an impeachment trial],” McConnell said. “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run.”
5. Surprise Call for Witnesses
Rep. Jamie Raskin, D-Md., the leader of the nine House impeachment managers, or prosecutors, opened what was expected to be a closing argument with a surprise effort to call Beutler as a witness.
“Needless to say, this is an additional, critical piece of corroborating evidence further confirming the charges before you as well as the president’s wilful dereliction of duty and desertion of duty as commander in chief of the United States, his state of mind, and his further incitement of the insurrection on Jan. 6,” Raskin said.
“For that reason, and because this is the proper time to do so under the resolution the Senate adopted to set the rules for the trial, we would like the opportunity to subpoena Congresswoman Herrera [Beutler] regarding her communications with Minority Leader Kevin McCarthy and to subpoena her contemporaneous notes.”
Raskin said her testimony could be given by Zoom, a videoconferencing app, for an hour or less.
Trump lawyer Michael van der Veen warned senators that more witnesses would be called as a result.
“After what happened here in this chamber yesterday, the House managers realized that they did not investigate this case before bringing the impeachment,” van der Veen said. “They did not give the proper consideration and work. They didn’t put the work in that was necessary to impeach the former president. But if they want to have witnesses, I’m going to need at least over 100 depositions, not just one.”
Van der Veen noted that law enforcement has charged hundreds in connection with the Capitol riot.
“Each one of those, they said Mr. Trump was a co-conspirator. That’s not true,” van der Veen said. “The only thing I ask is if you vote for witnesses, do not handcuff me by limiting the number of witnesses I can have. I need to do a thorough investigation that [the impeachment managers] did not do.”
He said other depositions need to be taken, mentioning House Speaker Nancy Pelosi, D-Calif., and Vice President Kamala Harris.
Harris is empowered to break tie votes in favor of Democrats in her constitutional role as president of the Senate.
“Nancy Pelosi’s deposition needs to be taken. Vice President Harris’ deposition definitely needs to be taken. Not by Zoom. None of these depositions should be taken by Zoom,” van der Veem said. “These depositions should be done in person in my office in Philadelphia. That’s where the depositions should be done.”
When senators laughed, van der Veem appeared to take umbrage.
“I don’t know how many civil lawyers are here, but that’s the way it works, folks,” Trump’s lawyer said. “When you want someone’s deposition, you send a notice of deposition and they appear at the place where the notice says. That’s civil process. I don’t know why you are laughing.”
Senate President Pro Tempore Patrick Leahy, D-Vt., presiding over the trial, called for decorum.
“I would remind everybody, we will have order in the chamber during these proceedings,” Leahy said.
Van der Veen added: “I haven’t laughed at any of you. And there is nothing laughable here.”
Leahy again admonished the Senate, referring to Chief Justice John Roberts’ comments during Trump’s first impeachment trial.
“I would remind everybody, as Chief Justice Roberts noted Jan. 21, 2020, citing the trial of Charles Swayne in 1905: All parties [in] the chamber must refrain from using language that is not conducive to civil discourse,” Leahy said.
6. Collapse of Call for Witnesses
The Senate then voted 55-45 to allow witnesses, with five Republicans joining all Democrats, including Leahy as presiding officer, in favor.
Four Republicans—Collins, Murkowski, Romney, and Sasse—at first voted in favor of witnesses. Lindsey Graham, R-S.C., then changed his vote from no to yes, in what many saw as a strategic move.
Graham earlier had voted against the constitutionality of the trial.
Toomey and Cassidy had voted to proceed with the trial, but voted against calling witnesses.
In tweets, Graham elaborated on his reasons for backing witnesses, and later said in a press release from his office:
It is my firm belief that the House managers are trying to investigate the case AFTER it was brought to the Senate. It is better for the country to go to a final vote.
However, if the body wants witnesses, I am going to insist we have multiple witnesses.
We can start with Speaker Pelosi to answer the question as to whether or not there was credible evidence of preplanned violence before President Trump spoke? Whether Speaker Pelosi, due to optics, refused requests by the Capitol Hill Police for additional resources like the National Guard?
Her testimony is incredibly relevant to the incitement charge.
The Senate went into a long recess right after the vote in favor of witnesses.
Perhaps not eager to see multiple Democrats called as witnesses, Senate leaders agreed behind closed doors—with buy-in from House impeachment managers and Trump’s legal team—to enter Beutler’s public statement on the Trump-McCarthy call into the record.
Another Trump lawyer, Bruce Castor, said the defense team would agree to admit Beutler’s statement as evidence. Raskin then read aloud the Washington Republican’s full statement.
7. Dubious ‘Raskin Doctrine’
Van der Veen referred to the Trump defense team’s presentation Friday that included video of numerous elected Democrats, including Biden and Harris, using violent language to talk about Trump, the Supreme Court, and Republican officeholders.
“Yesterday, in questioning, House Manager Raskin admitted that House Democrats had invented an entirely new legal standard. In fact, they have created a new legal theory—the Raskin Doctrine,” van der Veen said, adding:
The Raskin doctrine is based on nothing more than determining protected speech based on the party label next to your name. Regardless of what you have heard or what you have seen, came from the House managers, if you pay close attention, you will see any speech by Democrat elected officials is protected speech, while any speech made by Republicans elected officials is not protected.
But, van der Veen added, “The creation of the Raskin Doctrine actually reveals the weakness of the House managers’ case.”
He said Supreme Court rulings had given the speech of elected officials the strongest protections:
I’ll remind you why. You all need to be free to have robust political discussion because your discussion is about how our lives are going to go. That shouldn’t be squelched by either side. Why would the House managers make up their own legal standard? I’ll tell you why. Because they know they cannot satisfy the existing constitutional standard set forth by the United States Supreme Court that has existed for more than half a century.
In response, Raskin joked that he was honored to have a doctrine named after him.
8. Focus on ‘Dereliction of Duty’
The Achilles’ heel for the House impeachment managers has been that the charge of incitement of insurrection is difficult to prove without evidence of intent and because of the right to free speech.
In the final day, the House Democrats focused largely on the concept of Trump’s dereliction of duty, which Raskin said was “built into” the article of impeachment for incitement because of the wording that followed.
But Van der Veen argued that a “kitchen sink” article of impeachment violates Senate rules.
“How did Donald Trump react when he learned of the violent storming of the Capitol and the threats to senators, members of the House, and his own vice president?” Raskin said.
Secret Service agents quickly moved Vice President Mike Pence out of the Senate chamber, where he was presiding over the counting of electoral votes, as rioters stormed the building. Trump pressured Pence, in his speech and in tweets, to block certification of electoral votes from states with results he disputed.
Raskin, the lead impeachment manager, delivered the prosecution’s closing argument.
Raskin said Trump didn’t stop the mob’s violence “in either of his roles, as commander-in-chief—or, in his real role that day, inciter-in-chief … the ex-president knew, of course, that violence was foreseeable.”
“He was not surprised, and not horrified,” Raskin said. “No, he was delighted and through his acts of omission and commission that day, he abused his office by siding with the insurrectionists at almost every point.”
Rep. David Cicilline, D-R.I., argued that Trump “willfully betrayed” members of Congress when they faced danger.
“The insurrectionist mob began chanting, ‘Hang Mike Pence!’ It was unfolding on live TV,” he said. “It’s just not credible that the president at no point knew his vice president was in this building and was in real danger.”
Ken McIntyre contributed to this report.
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