Fact-checking Day 1 of Trump’s second impeachment trial: To try or not to try

Before senators could consider a scrap of evidence in the case against former President Donald Trump, they first had to vote whether to try the case at all.

House Democratic impeachment managers argued that even though Trump no longer holds office, the future of the nation hinges on allowing the Senate trial to move forward. 

The Democrats said that to do otherwise would create an entirely new impeachment loophole — the January exception. 

Rep. Jamie Raskin, D-Md., said allowing presidents in their final weeks to violate their oath of office would pose a fundamental threat to democracy.

"It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door," Raskin said. "To hang on to the Oval Office at all costs, and to block the peaceful transfer of power."

Trump’s lawyers argued that House members impeached Trump Jan. 13 out of fear of facing him in 2024, that they abused the impeachment power for political gain. They said that to try Trump would amount to an attack on his right to free speech, and that a Senate trial would leave the country battered and divided even worse than it is today.

They said the House impeachment was rushed and undermine future presidents.

"The snap judgment made in this matter to impeach the president of the United States, without any semblance of due process, at every step along the way, puts the office of the president of the United States at risk every single day," said attorney David Schoen.

In the end, the senators voted 56–44 to hold the trial, with six Republicans breaking from their party.

While points of law and the Constitution can be argued, they generally don’t lend themselves to fact-checks. We did find a few elements where a bit of context helps.

"The vast majority of constitutional scholars who studied the question (of holding an impeachment trial against a former official) ... agree with us, and that includes the nation's most prominent conservative legal scholars." — Rep. Jamie Raskin, D-Md.

Constitutional scholars mostly agree that a former official can be tried in the Senate, while also acknowledging that the opposite position is also arguable. There also is precedent for holding an impeachment trial for someone who is out of office.

The Congressional Research Service has written that while the Constitution leaves the question open to debate, "most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office." 

Charles J. Cooper, a conservative constitutional lawyer who was mentioned on the Senate floor, wrote in a Wall Street Journal opinion piece that the Constitution doesn’t bar Trump’s second impeachment trial. If removal from office was the only available punishment, "the argument against trying former officers would be compelling. But it isn’t," Cooper wrote Feb. 7.

"Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders," Cooper wrote. Cooper has represented former Trump administration officials John Bolton and Jeff Sessions.

"And when his case reached the Senate, this body, (William W. Belknap) made the exact same argument that president Trump is making today: That you all lack jurisdiction, any power to try him, because he's a former official." — Rep. Joe Neguse, D-Colo.

This is accurate. Belknap was a secretary of war who resigned in 1876 just hours before the House of Representatives impeached him on bribery charges. The Senate still held a trial — and acquitted him.

Belknap’s defense team sought to argue to the Senate that the case should be dismissed for lack of jurisdiction because Belknap no longer held office. But that motion "was rejected by the Senate, which held that it had the constitutional authority to proceed to trial and verdict," Keith E. Whittington, a Princeton University political scientist previously told PolitiFact.

"The impeachment of a private citizen in order to disqualify them from holding office is an unconstitutional act, constituting a bill of attainder." — David Schoen, Trump’s defense lawyer

Trump was charged with incitement of insurrection and impeached by the House when he was still president and not a private citizen.

If the Senate convicts Trump, it could also separately vote to disqualify him from holding public office again. Removal from office and disqualification from holding office are punishments stated in the Constitution for a Senate conviction.

Some legal scholars have argued that a "bill of attainder" is unrelated to a Senate impeachment trial.

The U.S. Supreme Court has defined a bill of attainder as a legislative act which inflicts punishment without a judicial trial. The National Constitution Center said in 2019 that the "attainder" concept goes back at least to 16th century England, and was traditionally used by Parliament to single out and punish, often by death, political enemies of the crown.

"Since 1787, the Constitution has contained a clause — not further defined — saying simply that ‘no bill of attainder…shall be passed.’ That clause probably was originally aimed at barring Congress from passing such a bill, since it is contained in a long list of clauses dealing with congressional powers," the National Constitution Center said.

In response to a brief filed by Trump’s lawyers before the trial, Noah Feldman, a Bloomberg Opinion columnist and law professor at Harvard University, wrote Feb. 2 that it was "legally wrong for Trump’s lawyers to say that conviction by the Senate counts as a bill of attainder."

"A bill of attainder is, as its name suggests, a bill — the kind of legislative act that only has effect when it is adopted by both houses of Congress and signed into law by the president," Feldman wrote.

"In this unprecedented snap impeachment process, the House of Representatives denied every attribute of fundamental constitutional due process." — David Schoen, Trump’s defense lawyer

Schoen hammered the point that the House acted before it had the benefit of a full investigation. In 2019, the House held hearings first to investigate whether Trump’s actions in pressuring Ukraine’s president were impeachable. This time, the House built its case on materials that were in the public eye — including Trump’s public statements. Ultimately, the Constitution leaves it up to Congress to define the "high crimes and misdemeanors" that trigger impeachment.

The Constitution doesn’t get more specific about the process than saying the House indicts and the Senate holds the trial. It leaves it to the House to follow its own procedures. Due process, in terms of the opportunity to present evidence and mount a defense, is more part of the trial process in the Senate.

"The impeachment investigation is analogous to a criminal investigation or inquiry by the police, prosecutor, or grand jury," Vanderbilt University law professor Suzanna Sherry told us October 2019 ahead of Trump’s first impeachment.