Alabama’s senators voted to acquit former President Donald Trump in his second impeachment trial, both citing the constitutionality of the prosecution.
“The Constitution speaks of removing a sitting president, not a private citizen,” Sen. Richard C. Shelby said in a statement posted to his website and social media.
“I recently voted to dismiss this case based on its questionable constitutionality. The framers were clear in limiting impeachment to the president, vice president, and civil officers of the United States. That is why today, I voted to acquit,” Shelby said.
Sen. Tommy Tuberville also said in a statement that he had concerns about the constitutionality of the trial. “I voted twice to say so,” he said.
Tuberville was referring to two earlier votes, one to set the rules for the trial and one to declare that the proceedings were constitutional. Tuberville and Shelby both voted against those proposals.
“But I had a duty as a juror to listen to the arguments of both sides and keep an open mind, which I did. After hearing the arguments presented, I voted to not convict for a number of reasons, including the fact that I don’t think the Senate has the authority to try a private citizen,” Tuberville said.
The Senate voted 57 to 43 on Saturday to convict Trump of willfully inciting violence against the U.S. government. Every Democrat, the two independents and seven Republicans voted to convict the former president. But conviction requires a two-thirds vote, and so he was acquitted.
Tuberville played a small role in the trial because of a telephone call he took Jan. 6, the day of the riot.
Both Trump and his attorney Rudy Giuliani called Tuberville that day to try to get him to delay certification of election results, even as the riot was under way. The calls accidentally went to the office of Sen. Mike Lee, R-Utah. Lee called Tuberville to the phone for one of those calls, and Tuberville said he told Trump that Vice President Mike Pence had been evacuated, that law enforcement was trying to evacuate him at that moment and that he had to go, then hung up.
“There are no winners today,” Tuberville said in his statement. “The American people lost. Our country is hurting from a global pandemic, and rather than addressing the serious needs of our constituents we wasted a full week on an unconstitutional trial. Now it’s time for us as a country to move on. We need to remember that at the end of the day we’re on the same team: the American team. Both sides can do better at remembering that.”
This was Shelby’s third time serving on an impeachment jury. He was in the Senate when then-President Clinton was impeached in 1999 on two articles, one for perjury and one for obstruction of justice.
Shelby voted that Clinton was not guilty of perjury but was guilty of obstruction of justice. The perjury charge was defeated with a 55-45 vote and the obstruction of justice charge drew a split vote, 50-50.
He also sat for Trump’s first impeachment trial a year ago on two charges, abuse of power and obstruction of Congress. Shelby voted to acquit at that time, as well.
In all, there were four votes on the Trump impeachment issue last week. The last of those was whether to convict him.
During the proceedings, impeachment manager David Cicilline, D-R.I., said: “While spreading lies about the election outcome in a brazen attempt to retain power against the will of the American people, (Trump) incited an armed, angry mob to riot — and not just anywhere but here in the seat of our government, in the Capitol … while we carried out a peaceful transfer of power, which was interrupted for the first time in our history. This was a disaster of historic proportion. It was also an unforgivable betrayal of the oath of office.”
Trump counsel Michael van der Veen said: “Do not let House Democrats take this crusade any further. The Senate does not have to go down this dark path of anonymity and division. You do not have to indulge the impeachment lusts, the dishonesty and the hypocrisy. It is time to bring this unconstitutional political theater to an end … . With your vote you can defend the Constitution. You can protect due process and you can allow America’s healing to begin.”
A yes vote was to convict Trump. Shelby and Tuberville both voted against this.
Senators voted 89-1 on Feb. 9 to approve rules agreed to by both parties (S Res 47) to govern the impeachment trial. In part, the framework allowed four hours’ debate on a Republican challenge to the constitutionality of the trial.
A yes vote was to establish trial rules. Shelby voted in favor of the rules; Tuberville voted against them.
Voting 56 for and 44 against, the Senate on Feb. 9 agreed to a motion that the impeachment trial is constitutional. This dispensed with a Republican argument that Trump, who was impeached by the House while still in office, could not be tried by the Senate because he was a private citizen.
Democrats said that under that logic, presidents could commit high crimes and misdemeanors in their last days in office and escape accountability. They noted that the presidential oath of office, which is written into the Constitution, forbids the commission of impeachable offenses on all days of a presidential term. The oath requires presidents to “preserve, protect and defend the Constitution of the United States.” Democrats also cited a letter debunking the GOP argument signed by more than 150 constitutional scholars and judges of all ideologies.
Jamie Raskin, D-Md., said: “President Trump may not know a lot about the framers, but they certainly knew a lot about him. Given the framers’ intense focus on danger to elections and the peaceful transfer of power, it is inconceivable that they designed impeachment to be a dead letter in the president’s final days in office when opportunities to interfere with the peaceful transfer of power would be most tempting and most dangerous.”
Trump counsel David Schoen said: “Presidents are impeachable because presidents are removable. Former presidents are not because they cannot be removed. The Constitution is clear: trial by the Senate sitting as a Court of Impeachment is reserved for the president … not a private citizen who used to be president of the United States. Just as clear, the judgment required upon conviction is removal from office, and a former president can no longer be removed from office.”
A yes vote was to establish the trial as constitutional. Shelby and Tuberville both voted no.
On Saturday, the Senate had a contentious debate over whether to allow witness testimony in the impeachment trial. Senators voted 55 for and 45 against calling witnesses.
This followed disclosures about a telephone conversation Trump had with Kevin McCarthy, R-Calif., the House minority leader, as the Capitol attack raged. Trump reportedly belittled McCarthy’s request that he call off the rioters, according to notes taken by Jaime Herrera Beutler, R-Wash., when she discussed the call with McCarthy. House managers originally said they wanted to depose Herrera Beutler to shed light on Trump’s frame of mind during the riot, but then asked only that her account be admitted as written evidence, which then occurred.
Jamie Raskin, D-Md., called the congresswoman’s information “an additional critical piece of corroborating evidence” of the president’s “willful dereliction of duty as commander in chief of the United States” during the Jan. 6 attack.
Trump counsel Michael van der Veen said: “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 (Democrats) did not do. Please … do not limit my ability … to discover the truth.”
A yes vote was to open the trial to witnesses. Shelby and Tuberville both voted against it.