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Longest-serving senator set to rule over historic impeachment trial

Vermont Sen. Patrick Leahy will serve in a judge-like capacity in former President Donald Trump’s second impeachment trial.
Published: Feb. 8, 2021 at 1:45 PM CST
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WASHINGTON (Gray DC) - The first trial of its kind in the country’s history is set to begin Tuesday.

Former President Donald Trump is the only American politician to be impeached twice, and he will soon be the first president to be tried after leaving office. He stands accused of inciting the deadly mob that laid siege to the U.S. Capitol January 6th.

November’s election already ended his presidency but senators could still block him from holding federal office ever again.

If President Trump still held office, the constitution would require Supreme Court Chief Justice John Roberts to preside over the trial But he declined, so Senate Majority Leader Chuck Schumer tapped the chamber’s longest-serving member -- Sen. Pat Leahy (D-Vt.) – to fill the judge-like role.

The former prosecutor, and chairman of the Judiciary Committee will swear to be impartial but how the trial plays out will be governed by politics as much as the letter of the law.

“Senators are going to make up their minds how they want to vote. I just want to make sure the rulings are fair,” Leahy said in recent a one-on-one interview.

Leahy will decide what’s relevant, and admissible as evidence – presiding over the trial like a judge. Once it comes time for the body to decide whether acquit or convict the former president, Leahy will still get to vote alongside his peers.

Leahy says he’ll base his procedural rulings on past impeachments, Senate rules, and the advice of the chamber’s non-partisan procedural expert. “I’ll prepare for a thousand different eventualities,” he said, “maybe none of the will happen, but I intend to be prepared for whatever happens.”

“I have zero confidence that a Democrat who’s already voted to impeach the president once could be impartial,” said Sen. Rand Paul (R-Ky.). He said, that’s not personal and he respects Leahy, but said having a partisan lawmaker preside over a trial reflects flaws in the process.

Paul -- joined by 44 of his Republican colleagues in the Senate -- led an unsuccessful push to toss the impeachment case. He argues it’s unconstitutional to try a president who’s already out of office.

“I do think it’s a charade, but I also think the argument that he incited violence is incredibly weak,” he said.

In their case briefs, Democratic impeachment managers argue, “there is no ‘January Exception’ to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.”

Paul said a president who cannot be impeached or tried after leaving office would still face potential criminal charges. The U.S. Attorney’s Office in Washington is looking into whether it would consider prosecuting the former president. However, legal experts are also quick to point out that the legal standard for proving incitement in criminal court is high and tough to prove.

Some legal scholars do question the impeachment trial’s constitutionality. But, most in the field -- including Georgetown University Law Center Prof. David Super -- argue It’s legally sound. “The constitution has nothing in it that prohibits a trial under these circumstances,” Super said.

The constitution also offers little guidance on how to conduct a trial. The Senate wrote its own, permanent rules, over the years. “The curious thing is that they have not been following them,” said Super.

Super argues the rules should make it unnecessary for Senators to set unique ground rules for each case, as they have in this instance, as well as President Trump’s previous trial and that of President Bill Clinton.

He said all parties could have more faith in the fairness of a trial if lawmakers didn’t come up with new rules each time an impeachment comes before lawmakers.

Super argues the case itself is a relatively simple one. But, straightforward arguments certainly won’t lead every Senator to the same verdict.

The trial expected to begin Tuesday. Acquittal is seen as likely, given conviction would require two-thirds of the 100 senators to vote in favor and 45 Republicans already essentially voted to toss the case.

If the Trump is ultimately convicted by the Senate, and barred from holding federal office again, his legal team could appeal to the courts. However, historically-speaking, experts say the court generally lets Congress resolve questions surrounding impeachment and conviction.

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