Senate Impeachment Trial Schedule Announced

Today on Jay Sekulow Live, we have a date for when the Senate will take up the impeachment trial of former President and private citizen Donald J. Trump.

The article of impeachment will be delivered today, but the trial more than two weeks away. We'll talk about all of that today on Sekulow Radio. Call 1-800-684-3110.

That's 1-800-684-3110. And now, your host, Jordan Sekulow. So here's what we know, folks, which was up in the air up until this weekend and really later on Friday when Chuck Schumer and Mitch McConnell came to an agreement, and they haven't come to an agreement on much yet, but they came to an agreement on when the impeachment trial will begin and when they will receive the article of impeachment. That ceremonial act of the House managers walking over the articles of impeachment, and so with Raskin and Eric Swalwell and the others... And Ted Lieu. I guess you got... How many did they put up this time?

The Hall of Horrors, that's what you said. Is it 10 this time, Will? I'm counting.

Is it 9 or 10? So they'll walk over. That'll be like a ceremony, you know, today. And that happens at 7 p.m. Eastern time. They deliver them to the Senate. Tomorrow, the Senators get sworn in as jurors.

But they've agreed, I guess I'll vote on this, or they've just done it by agreement between the leaders. They've agreed that they will not actually start the trial until February 9th will be the first day you'll see all the Senators there in the trial. You'll see the House managers at their table, the President's team at their table, and the trial begin. We don't have a trial schedule yet, so we don't know how long the impeachment... I think the first time around they got 12 hours to open up, right? And you sit for about... You start at noon, so we don't really also know... We started at 1, didn't we? I don't think we know about that yet either.

We don't know if they're going to try to do half days. We started at 1 because the Supreme Court was still taking arguments. Right.

So there's a lot to talk about here. So you've got a two-week plus one-day build-up to the actual trial, a question about who is going to preside over the trial. It becomes clear now it's not going to be Chief Justice Roberts. The question is, is it going to be Vice President Harris... Maybe, or the Senate pro tempore. Which, again, Pat Leahy. It's a mostly ceremonial role.

If they follow the model of Chief Justice Roberts, they leave most of the decisions up to the Senate. They're there for the question and answer time because they read the questions and then direct those to respond to the questions. And that's really the key part. So you've got the opening statements, which I imagine will still be significant. I don't know if they're going to give them 12 hours this time over one article.

When they had no witness testimony and nothing like that. So it's probably going to be shorter. I think it's going to look a lot different than what we were doing a year ago this week. Yeah. Because we had multiple counts with complicated separation of powers arguments and complicated constitutional issues. Now they've got a big constitutional issue here at the front. Of course, which is this idea of impeaching a President who's already removed from office, which is the reason why I think John Roberts will not be presiding over this. But I think the fact of the matter is that the briefs are not going to be exchanged until the week of February 2nd, then again February 8th, and then February 9th the house managers will submit the rebuttal. And then I suspect the trial will begin.

Yeah. I mean, this is again, so what we don't also, what is still remaining out there, some have talked about, oh, we can get this done in three days. I think it takes them at least a week. They forget that how long it takes to get through opening statements. And all nine of these congressmen are going to want to participate. Right. And they get to question. And the senators, I mean, they can keep that going. They may try to call witnesses. I mean, you know, there was Eric Swalwell was on today. He didn't answer that question.

He's just going to leave that up to the team. The witnesses would actually be members themselves, likely, who were there at the events. But again, what we are fairly confident I can be right now is that this will lead to another quittle. And why am I confident of that? Because if you listen to Republicans closely about this, they are all coming up with their own reasons why they do not support this impeachment.

Whether they think it's wrong, whether they think the speech is protected, whether they think it's just wrong to impeach a private citizen, they're all coming up with reasons. I still think there'll be a handful, but I can't even get to 10. And 10 would still not get you there. You've got to get to 17 to do this post-President's vigil. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights, in courts, in Congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

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Request your free copy of Mission Life today online at ACLJ.org slash gift. What you'll hear in this trial is people quoting scholars left and right about whether or not you can impeach a former official, but then the Senate, and I'll go back to Joe Biden's words when he wrote this to as a senator to his fellow senators, has to think about the general welfare of the country. So is this a precedent they want to set? Impeaching past Presidents?

And then what then prevents them from saying we're going to impeach every past President we didn't like because the new party will come in and can you still impeach Barack Obama? For Fast and Furious or for the IRS targeting the answer? Benghazi? Yeah, right.

No. He's out of office. So here's the thing that's going to happen. I mean, even senators that think what the President did was wrong and impeach him. But you impeach Hillary Clinton as a former cabinet member to keep her. Yeah. I mean, that's part of their motivation. They don't want Trump to run again.

Impeach Hillary Clinton for what she did with the email scandal and all that scandalous conduct so that she can't run again for public office either. So let's get a handle on kind of where it is then. We've got a schedule now of sorts, which means this thing's going to start in about, what, three weeks? Two weeks and a day.

Two weeks and a day. You know, I will tell you that it's very different than the one we tried in that the issues, as I said earlier, in our case were, I think, much more complicated legally because you had so many separation of powers issues. The power of the President on foreign policies.

It's zenith. It's biased. And then you had this, you know, impeachment by leaking. I mean, it was, so he was acquitted. He's going to be acquitted again. There's no way he's going to be convicted. I mean, I just, there's no way. Whether you think that, and that, I mean, senators may think that the conduct itself was impeachable by the way, but they're going to, this constitutional issue looms out. There's no right.

There's no, here is the answer. I mean, I think there's, there's arguments on both sides. I think the stronger policy argument and looking at the words of the constitution, the President says that a former President, he wouldn't do it too. But what, what's the sense of timing now and how things are going to work? Well, first of all, I think the most significant difference between last time and this one is exactly that last time it was a sitting President with some time left in his term and senators had to look at it through that rubric. Now they're not looking at it through that.

And Jay, maybe I'll go in reverse, starting with your, your, your question about what is the sense? I think the consensus position, even among Republican senators who are troubled by the President's actions are that they don't have jurisdiction here. I mean, you've started to hear it from a number of congressmen, Senator Cotton, Senator Rubio, Senator Sasse has even said that he has some concerns about this.

And so, look, I think a lot of people are going to say, well, there's a lot of Republicans that are concerned about the President's actions. That may be true, but that's not the question that they're going to be asking. And on process, Jay, the discussion you had with Jordan about how this is going to play out and why we don't know some of the details, that's actually going to be one of the most significant differences as well, because remember, until, before you even get to the possibility of witnesses or questions, a motion can be offered. So look, I expect a motion to dismiss on constitutional grounds to be offered at the very outset. And right now, Jay, I don't think we can say conclusively that that won't pass.

I think it could pass. I mean, you'd have to get Joe Manchin and Kyrsten Sinema and some of these others to go along with it and you'd have to keep all the Republicans together. What Republicans have said that they were inclined to impeach other than Mitt Romney? Actual impeachment? Ben Sasse said impeachable, but doesn't think it's right to do.

So that's as far as he went. Lisa Murkowski wanted resignation, but hasn't said that she would definitely vote to impeach. And the rest, I mean, you saw from Marco Rubio, he just thinks this is throwing, which is, I agree, fuel on the fire. And that is in line with where Joe Biden has been in the past as a senator, is that you have to look at the general welfare of the country before you just look at how they feel like doing as politicians and what it will do to the country versus what it would do to the man who is being impeached as a private citizen. So I think there's a lot of them who would have voted to impeach this President because of this, a decent amount of Republicans.

I don't know if it ever got to 17, by the way. But there's probably a lot more than two or three. But I don't think the Murkowski's and the Collins, I don't think they're a definite yes vote on impeachment, Sam, because of the precedent they would be setting.

And they're big on that. A lot of those long-term senators care a lot about the precedents they set in the institution of the Senate. Yeah, they've been very clear, Jordan, that they are not an automatic yes on impeachment. I mean, I think Mitt Romney probably went the furthest in saying he may be a yes.

But even he said he would consider it. And look, Joe Manchin said that he's not for starting this trial either. So now, look, I'm not I'm not telling you that he's going to vote not guilty at the end. But this is not just on the Republican side. And the process arguments aren't just concerns on the Republican side either. Look, constitutionally, every one of these senators, Jordan, even the ones that don't think the trial should happen at the end of the day, it looks like they're going to be presented with their argument and they're going to have to answer two questions. One, do we have jurisdiction?

Two, should he be convicted? Let's putting aside the whole, you know, Biden wanted unity in the country, which obviously when these are delivered today, that unity is over with. But here's the question. You look at the impeachment managers, Wes, you said this earlier, that have been selected here, including Ted Lieu, including Jamie Raskin and Eric Swalwell. And you say to yourself, you said this, well, it's like they're tone deaf on what this singles. Yeah, either Nancy Pelosi is truly trying to blatantly insult the American people of all stripes, or she is completely clueless as to how this team, you know, is perceived and how it affects this idea of healing and national unity. And besides that, Jay, impeachment power, I think, is designed to protect the nation against harm from an incumbent President, not to exact political revenge. And it does appear that they're either clueless or they're tone deaf as to how this affects the nation. And it gives the appearance that they don't care near as much for the country as they do for politics. And we had this, the head of the impeachment for the Democrats, the manager, the head of the manager, so the Adam Schiff of this impeachment.

Think about the past one, too. They sent Adam Schiff and Jerry Nadler to the U.S. Senate to try and convince Republican senators, because that's who their focus is, not the Democrats, to convince Republican senators, the two most partisan guys in the House, to convince them they're already inclined not to support anything that comes out of their mouth. And it got so partisan, the attacks there, this even more so. But Jamie Raskin, the main article of impeachment is this impeding the certification of the election.

Well, let's do a flashback, because he impeded it in 2016. Take a listen. This is the Democrat House manager you'll see a lot of in two weeks, and you'll see tonight leading over the article of impeachment, back in 2016. You'll also hear Joe Biden's voice, because he was in the pits role back then as vice President. Take a listen.

What purpose is Member Ryan? I have an objection, because 10 of the 29 electoral votes cast by Florida were cast by electors not lawfully certified, because they violated Florida's prohibition against dual office holdings. The debate is out of order. Section 15 and 17 of the Title III of the United States Code require that any objection be presented in writing, signed by both the members of the House of Representatives and a senator, is the objection in writing, and signed not only by the member of the House of Representatives, but also by a senator. Is it in writing, Mr. President? Is it signed by a senator? Not as of yet, Mr. President.

In that case, the objection cannot be entertained. Because you're sitting him over. Why don't we... They're calling Ted Cruz and Josh Hawley traitors for doing what Jamie Raskin, who's now going to go... The lead manager. Yeah, the lead manager is going to do some bad decision there, and then Swalwell and Ted Lieu are just despised by the conservatives. So how are you going to convince 17 Republicans? It's why are they giving Donald Trump another victory?

You have to keep asking yourself... I don't understand it. Is Donald Trump in the news today, when he can't even speak through his social media outlets, yet every major news outlet is spending their time on Donald Trump? I am trying to determine the calculus that the Democrats are using here. They're obsessed. Well, they may be obsessed, and they don't want him to run in 2024, but they know they're going to lose. Maybe they thought right afterwards they had some momentum, but quickly it reshuffled, right?

The deck reshuffled quickly, and he said, boy, this impeaching previous President's going to be a horrible constitutional President. And then scholars started coming out saying you can't do it. Then there's scholars saying you can, and it's clearly going to be up to the Senate. And then you say to yourself, what is the political calculation here?

And this is what I'm trying to figure out. For this to be the imaging, a two-week trial, and then the Senate pro tem or the vice President as the President of the Senate is going through the roll call. Then they do the yeas and nays, and there are 50 votes, you know, to convict, and 50 votes to acquit. Thus it fails, or if there's 52 votes to acquit, because you've got a couple that are concerned, Democrats concerned about the constitutional issues. So then the headline in The Washington Post once again, I'm going to, I think I have it somewhere.

I should have brought it in. It's Trump acquitted, and it's going to be Trump acquitted, comma, again. So what in the world is the political calculation on that one? No, I think it's an absurd political calculation. But they're thinking something. I mean, they think there's some reason to do this. Well, they must think that they could somehow scare Republicans from being associated with President Trump. And I think they're doing the opposite.

They never understand the mindset of a Republican voter, just like it's tough for Republicans to understand the mindset of a Democrat voter. But what I do understand is encouraging their supporters to reorganize after they were exhausted. And to me, it gives President Trump the jumping off point to start reengaging, because they're making him the focus.

So I wouldn't be surprised that come February 9th, he starts reengaging on whatever media he can, because he's a private citizen at issue of trying to be impeached by Ted Lieu and Eric Swalwell, the Chinese spy guy, and Jamie Raskin, who objected to his election certification, because he had a rally to give a speech and said, go protest peacefully. This is the country we live in. This brings MAGA right back to the forefront of our country. We'll take your calls.

1-800-684-3110. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work. Become a member today.

ACLJ.org. So we have the date. We know the ceremonial action will take place tonight and tomorrow. Tonight, the House managers will walk over the article of impeachment around 7 p.m. Eastern time. And then tomorrow, we will find out, I guess, who is presiding over this because the senators will be sworn in. Technically, at that point, the impeachment trial has begun, but there's not going to be arguments. So on the floor, you're not going to see the back and forth of the questioning until February 9th, which is a Tuesday. So we're two weeks and one day out.

You're going to drag the country through it even more and to build up even more to this impeachment of a private citizen. Probably not over until February. My guess is around February 17th, February 20th. Yeah, and you never know.

You cannot predict the end date. The question and answer period. How long did that go with us? Three days? Two days? Twelve hours? It was a long time. For each side, yeah.

A couple of days. And it wasn't, I don't think it was going to be over. It was just when it was kind of done. Yeah, your questions kind of petered out. Yeah, very late into the night. And let's take a phone call because they don't want this one to be like that.

You can tell these senators they don't. But actually, before I take Leslie's call, let me just say, have they made any kind of rulings yet on timing about this? Because ours was very set. Other than like Saturday, which was a shorter day, and Sunday was off. You had the set time, but you also could go very late into the early hours the next day.

Yeah, I've not seen one, Jordan. And you know, to be honest with you, I don't know how much of that we can expect until we actually get through those early motions. That's why I mention that because I don't think there's any certainty that they're going to get to the questions. I would suspect, if I were guessing here, I'm guessing you'll get guidance from Leader McConnell and Schumer on if they get to questions, how long each senator would have and what opportunity they would have. But Jordan, I don't think you're going to have certainty on that until you get through those early motions. Have they figured out any certainty on like, are they going to try to do half day of work and then go start the trial at three o'clock? It does not sound like it, Jordan.

It sounds like this deal sort of allows them to get through maybe the COVID measure and the most important nominations and then move wholly to impeachment. I think that's the plan. Okay. Leslie in Massachusetts on Line 3. Leslie, welcome to Jay Sekula Live. You're on the air. Hi, my attorney Sekula. How are you today? We're good. Wonderful.

Oh, Sekula Square. My question is this. I'm an attorney and a pretty smart person. I sit back and I look at what's going on with President Trump and my question is this. Upon impeachment, you know, it's a trial. What viable evidence do they have other than the last closing remarks that the President said about, you know, peacefully marching down Pennsylvania Avenue?

Maybe if he didn't use the word march, that's the only thing I can think of, but nothing in that phrase that he stated, that he said to the people that were watching incited any kind of violence or riot. So where are they going with evidence? You have to forget actual law and precedent. High crimes and misdemeanors is broad and the Supreme Court has said they're staying out of that. So the Senate can make up whatever charged crime they want for this specific trial.

I wouldn't say it's like a banana republic because it's a very high bar. That's why no President's ever actually been convicted in these impeachments. The only President likely that would have been is Nixon, but he resigned. And so that was like they basically told him the votes are going to be there to impeach you. Now, Republicans would have still Gerald Ford has still become the President.

So I mean, it would. And so basically, that's the only one I can even look back in history and say, maybe the votes were there because but they didn't even get to that point. So here you look at the situation and you have to take off your lawyer hat in the sense of, well, courts have defined this kind of speech and made it clear that there's a very high bar to incitement and all that doesn't matter. It's what the Senate wants you to play. So they will argue that. I know that the President Trump's legal team will bring up the fact, too, because they care about that, but it doesn't govern. It's not like precedent, Dad. There's no precedents here.

They can make up the crime as they go along. And though there is a very lack of there's it's not like last time where there were 55, 60 witnesses and hearings at Nadler's committee and Schiff's committee. There were no hearings before the House of Representatives.

There was no opportunity for the President to present a narrative or a legal argument. They just said, no, the President's speech led to an incitement. That incitement included an insurrection. We're going to do an impeachment on insurrection with two hours of debate. That was it.

They barely debated. They also added that phone call to the Georgia Secretary of State. That's going to come up more than you think. Yeah, I think it will.

And I think they're going to push that, the Democrats. Although it's not listed as the count. No, it's just kind of mentioned. Yeah.

It's not a separate count. It's just kind of mentioned as, see, he just leading up to this was doing things that were going to cause the violence. Well, that's what I think you're going to see. I think that the Democratic House managers are going to take everything. They're not going to just take the words. They're not going to, believe me, they're not going to highlight the words peacefully protest. They're going to say march on the Capitol. They're going to go through the speech. You've got to be tough. You've got to be tough.

You've got to fight. It's not going to just be the President's speech. It's going to be other people that participated in that.

The question you would ask yourself legally, normally, is does this reach the Brandenburg standard, this imminent lawless conduct that you know is going to happen that you're doing it? Clearly it doesn't. But that doesn't matter in an impeachment trial, which is totally political.

It is. It is not a legal proceeding. It is a political proceeding. You know, and you're right, they didn't have any sworn testimony before the House, no hearings. And I think most people, they could take this, and what's going to be interesting tonight is the faux drama, the gravity as the impeachment managers walk through the hallways of Congress. They would be a lot more believable and they'd have more integrity had they not brought up such a farce impeachment a year ago. The American people saw through that, as did the Senate. And had that been more legitimate or had they had more integrity a year ago, then I think people would say, well, this is a little more believable. But it's all an act.

It's all drama. And they know it's not going to succeed. And I'm like you, Jay, I'm wondering, what is the political calculus here?

Because it's obvious they're not going to convict the President. And my question is, in two years, is this going to majorly politically backfire on the Democratic Party? And I think it should.

Yeah, I think it is. Let me, as we close this segment out, obviously we've got a lot more to talk about in the next half hour, let me say this. We secured a major victory. The ACLJ filed a federal lawsuit on behalf of Jewish organizations and Jewish students that attend Georgia Tech, the Georgia Institute of Technology. In the federal complaint, we asserted that those at Georgia Tech had violated Title VI and were engaged in unacceptable discriminatory practices. And the Department of Education actually joined in and did an investigation after we filed the federal suit. I am happy to report that the case has been resolved, that Georgia Tech has modified and changed its policies, and has affirmatively stated that, let me read it last year, the U.S. Department of Education launched an investigation into an incident involving a Georgia Tech student organization. Georgia Tech is pleased to announce the parties have reached an agreement.

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We're talking about freedom. We will fight for the right to live in freedom. Live from Washington, D.C., Jay Sekulow Live. And now, your host, Jordan Sekulow. Welcome back to Sekulow Radio.

We are taking your phone calls 1-800-684-3110. I think it was important that we update you on the ACLJ's work outside of just all these issues that have been kind of captivating the nation since Election Day, and even going back further since the first impeachment that we were involved in, which is the victory at Georgia Tech against anti-Semitism. The fact that we're still having to fight that is very real at the ACLJ, and it's up at ACLJ.org, so you can actually learn more about that case as we do all this work. Some of it we haven't had time to get to on radio.

That's when it just came out today, so we wanted to update you on that at ACLJ.org. You know, I think this is an interesting question to just discuss, Charles on YouTube, because you can also look back at the last impeachment, and you say, how did that affect the 2020 election? But, Charles on YouTube wrote, do you think this impeachment affects the 2022 midterms? Does it hurt or help Republicans?

You know, it's interesting because if you look at it, I mean, George, we had the impeachment in 2020, and the President, putting the President's race aside, the Georgia race, the two Senators that won were Democrats. So, I don't think it helps. I don't think, even though I think he'll be acquitted, I don't think this helps.

It just brings up, conjures up tumult, if you will. I think that's the way to look at this, and this was a very sad day for America on January 6th when this happened, and I think that all this does is highlight this kind of discourse, social discord. So, I don't think that, it may make the President stronger politically, but look, no matter how you view the election result, whether it was stolen, whatever it was, at the end of the day, after all the process, Joe Biden won. However you look at how it got there, Joe Biden is the sitting President of the United States.

So, let's be realistic here. Okay, so, did the impeachment help the President? No, I don't think it helped the President, but I'll tell you what really hurt was the Chinese with COVID.

That hurt significantly. I think that overtook the impeachment, but right after the impeachment is when we started shutting down. So, we like left that trial, and then about two weeks later, we already knew about COVID at that point. And then the President's first debate was not a good debate, and that was not his best one, and then he cancelled the second one.

I mean, there's a lot of things. But people say about the midterms. I think, listen, midterms election is really going to be up to our good candidates. Us are running state by state, and there will be the question mark fan about how involved the President will be in these. I think he'll be involved in some and not in others, depending on the candidate.

Yeah, probably on the preference of the candidate. Look, I mean, I've said several times before that I think this effort to pursue impeachment is as much about 2022 as it is 2024. And the reason for that, Jordan, is if I look back on the 2020 elections, I totally agree with Jay about the impact in Georgia, but if you look at the House elections across the country, I think the divisions on the left definitely helped Republican candidates. And I think this effort for impeachment is a way to try to continue to divide the right moving into the midterms in 2022, because historically, Jordan, I mean, you know this, the party that does not have the White House typically wins seats back in at least the House. And when one party controls all of government, as is the case now, that party that is out of power usually does even better. In the House, Jordan, they only need a handful of seats to get back control of the United States House, and in the Senate, they need a net pickup of exactly one.

They need one pickup. So look, in 2022, it could easily be a Republican House and a Republican Senate with President Biden, and I think that may have as much to do with pursuing this as anything else. Yeah, and I still tend to think, Wes, that they are trying to make sure Donald Trump does not run again for President, and even if he's acquitted, maybe it's just a bridge too far for people in their thought process.

I think so too. We're talking about political calculus. I think the Dems, you know, they're making the political calculation that the risk of blowback and rejection of the American people are worth it in order to mollify the left-wing political base. Plus, they want to get these GOP senators on record in this impeachment trial as well.

It's a political calculation. We'll continue to take your phone calls. 1-800-684-3110. We've got one line open right now if you want to talk to us on the air.

1-800-684-3110. I'll also be on Sean Hannity's radio broadcast today. I'm supposed to be with Shannon Brehm on Fox News tonight to talk about that. I was on Newsmax this morning talking about all of this so people are kind of getting ready to go again with another impeachment. This time, though, not of a sitting President, so it brings up a whole host of other issues of a private citizen and former President.

We'll be right back. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

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Request your free copy of Mission Life today online at ACLJ.org slash gift. This is an interesting question because you will hear this come up too. It's already coming up in discussion. And what happens is those who support the impeachment of former President Trump don't like to give you the full answer on what exactly happened. But let's go to Roger's call. Online 5 in Minnesota. Roger, welcome to Secular Radio.

Thank you so much for taking my call. Senator Amy Klobuchar came out publicly yesterday with the argument that she felt there is precedent for trying President Trump, even if he's a private citizen now. And the example she used was War Secretary William Belknap back in 1876.

And I'm wondering, does this even hold water? Let me tell you something interesting about the Belknap case. So they did have a trial. He impeached, then he left office, then they tried him even though he was out of office.

He was acquitted. And 22 of the 25 senators that voted for acquittal said, we think what the Secretary of War did was impeachable, but we don't think we had the authority constitutionally to try him. So yes, that's the example they're using, but those senators said, the majority of those senators said, no, it's not sufficient enough to impeach that person because of that.

So it puts you back in the same thing. So they went through this entire trial for people to say. Now here you may see a motion to dismiss right up front on constitutional grounds.

Yeah, you could definitely see that. That would take 51 votes. The question is... Where would those 51 votes come from? That would be the question.

So I don't know if you're going to get... So let's say you lose at least Mitt Romney probably. He says he wants to hear the arguments.

So he doesn't think it's going to be dismissed right there. I don't know if there'd be others, Republicans, who are not necessarily going to vote to impeach, but I think that's a tough vote to say you get to 51. I would take probably, definitely takes a Democrat or a couple.

Yeah. So you've got to have... Have any Democrats said anything publicly other than Joe Manchin saying this is, and he's really independent? Well, everything else has been pro-impeachment that I've heard. Tim Kaine has brought up the idea of the 14th Amendment and the... No, no, I'm talking about sitting senators. Tim Kaine is from Virginia.

Oh, using the 14th Amendment. Yeah, but what I'm saying, the backdrop of him saying that, he has said that he's not going to get convicted. He's a Democrat senator. Yeah, but has he said the reason that he would... Did he say how he would vote on the constitutional issue?

Yeah. I mean, Tim Kaine is... Yeah, Tim Kaine is raising the 14th Amendment issue, but... The disappointing thing about American politics today, Jay, is that each party are, for the most part, the members of that party are in lockstep. In another day and time, even when I was younger, senators would depart and vote differently than their party leaders. Congress people would do the same thing, Republican and Democrat, because they were voting rational, conscience, these kinds of things. Nowadays, it seems like the whip in the Senate and the House and the majority leaders, they get all of their people in total lockstep, so that the possibility of a few Democrats voting to dismiss, knowing that it's pointless and that it's hurting the American people, they will not balk against the party leaders in order to simply vote for something that is really, really sensible and rational and good for the country.

The party members are absolutely in lockstep most of the time. And what would also differ from that case of the 1800s is that that Secretary of War found out this was coming, rushed to resign, like the same day, the House. This is a different time, and a different time with how things were communicated, and still then. So he didn't finish his term. The President of the United States finished his term. He didn't resign. He finished his full term in office, the impeachment came, and the trial didn't start until after.

So it's not going to start until after. And they still said no. This whole idea what Wes was talking about, that Tim Kaine brings up, is the Fourteenth Amendment. It's a post-Civil War amendment to the Constitution that said basically, if you took up arms or you were an insurrectionist against the United States, we're going to bar you from office. You'd have to get special clearance to sit back in. And that's a majority vote. That would be a real stretch.

I mean, a real stretch. And I think would create all kinds of constitutional issues. It's not impeachment, so the Supreme Court would have to engage that. Now, interesting right now is we have a case up at the Supreme Court on behalf of the President involving the District Attorney in New York, and I expected that stay to be lifted today because the President's out of office, and it wasn't.

And what does that tell me? Is that some of these issues that are lingering have got constitutional significance the courts may still address. So who knows?

I mean, it's just, but that one would be one where I think you'd go to court and say to the Supreme Court, you have to go to the District Court first, and then ultimately the Supreme Court and say, wait a minute. It can't mean it for this or else than any majority Senate can basically, you know, what would be the evidentiary standard of that? A speech? Very difficult to say.

Very difficult to say. Let me ask you this. I heard John Cornyn's statement, and John Cornyn, who's a pretty level-headed, he's a very level-headed guy. He's got no appetite for this. Well, no, he wants to get about the work of the United States Senate, and he initially said that he was concerned about the events of January 6th. But look, the President's term is over, and I don't think John Cornyn is going to stand in favor of proceeding at all.

I think he'll be with Marco Rubio voting for the first chance to dismiss. But Jay, I wanted to add one thing to the conversation you were having about, you know, whether or not you could get to 50 votes for a motion to dismiss. Look, this is the reality of living in a COVID environment in the United States Senate is it is very, very frequent these days to have less than 100 senators voting. And look, I think both parties are going to make every effort to get every senator in the chamber, but you know this from having tried it before. Once it gets started, some of these votes just happen, and I can easily see a scenario where you're only going to have 98 or 99 senators voting. So a majority, Jay, might not be 51 on some of these votes. So if you got one Democrat, even if you lost Mitt Romney, it could be decisive. Yeah, I just, I still don't understand this political calculation. Legally, look, we'll be able to give you commentary while this proceeding, like we'll talk about what happened, what happens tonight, we'll talk about tomorrow.

Obviously, we've done it. So the uniqueness about listening to our broadcast on this is there's a handful of lawyers that have done these impeachments in our history. And a good portion of those handful of lawyers are on the set right now, and one will be in our studio in Atlanta tomorrow. And so you'll have three lawyers that were involved in this that will be able to comment on this during the proceedings. And we may even go live on a couple of the key days, you know, depending on how those hearings start, when we want to go over some key points, or at least certainly save it for the next day's radio to give you a full analysis of what's going on.

But, look, impeachment proceedings are always significant, but they are cheapening the meaning of impeachment by doing this. Yeah, I mean, interesting questions coming in, and I want to start taking these by phone. Karen in Montana on Line 3. Karen, welcome to Secular Radio. You're on the air.

Thank you. I understand there's controversy over impeaching a private citizen, and I wonder what impact beginning this process in the Congress while President Trump was still in office has on this. Well, it's interesting because John Adams took the position that he could always be impeached 10 years later.

Hamilton, not so much. He took a different view. You've got Mike Ludick, former Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, saying unconstitutional. You've got John Yoo, former Justice Department official, Office of Legal Counsel, saying unconstitutional, can't do it.

You've got others saying you can do it. So the issue here is it's going to be decided by the Senate. I don't see an opportunity. I don't see the court weighing in on this. Impeachment rests with, as Andy pointed out last week on the broadcast in the United States v. Nixon, that impeachment uniquely rests with the United States Senate and House, and that's their responsibility, and the court's not going to weigh into this if they don't have to.

Exactly. I mean, I think that's where you cannot rely on a court to fix this problem. I mean, the Fourteenth Amendment issue, if that comes up, that brings up a different issue that may be justiciable by the courts, but I don't think they want to touch impeachment. I don't think John Roberts is going to be there, and that will raise issues, too, and issues that didn't arise in art when we were doing it. But, like, you know, as President of the Senate, technically, let's say on this motion to dismiss, could Kamala Harris be the tie-breaking vote if she's not sworn in?

I mean, and she's not presiding over it, and so she's not actually the President, but is she still the President of the Senate, or is that stop because you're in a trial? Those are issues that the Senate is going to have to resolve, and I think those are going to be votes on votes potentially. Now, you may never get to that vote. We didn't have that issue where John Roberts, they said, what if he had to be a tie-breaking vote?

Well, that issue never came about. He was very reluctant. John, if you remember, the chief justice was very, he said no when they asked him to be the arbitrator of witness calling, of the relevancy of witnesses. And we argued that, with due respect to the chief justice, that he is sitting not as the chief, of course, he's always the chief justice of the United States, but as the presiding officer, not the judge. He's the presiding officer, procedural. To start doing substantive rulings we thought would have been unconstitutional, and ultimately, John Roberts decided he would not engage in those. So, there's a lot of play in the joints that will take place here, though.

Yeah, there's so much uncharted water here. Back to this possible motion to dismiss, though, Jay. You know, in our court system, speaking of the courts, frequently if there's a case that's going to trial, and a person asks for immediate relief in an injunction from a judge, the judge will deny the injunction because they are not likely to succeed on the merits. Right.

In the Senate, they are not likely to succeed in convicting the President, so why not grant the motion to dismiss, why don't some of the Democrats have cooler, calmer heads and say, look, let's be done with this. Yeah, that's what they should do. But it's not going to happen, I think. It's not going to happen. But the politics of America right now is not cooler, calmer heads, it is division, divide and conquer is the path to victory. And the path to victory is narrow for both parties, so they've got to divide and conquer as best they can and try to harm the other side as much as possible. That's just the truth, and it's an unfortunate truth, but it's one you see that the Biden administration will be dealing with now on day one. He didn't even try to stop this. Remember that.

He didn't even try. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, the play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work. Become a member today, ACLJ.org. Welcome back to Secular Radio. Final segment.

We are taking your phone calls now. George on Facebook, this issue of the chief justice, does the Constitution say it has to be a chief justice? Actually, in this case, no. It says when it's the President, it has to be the chief justice. That's the only time, too.

Yes. Other officials that get impeached, and more frequently it's judges, actually, is the most frequent that you see in history. It's the Senate handling it. And it's not big news.

It's not something that the networks cover. But when it's the current President, yes, the chief justice has no choice, and they have to accommodate kind of his schedule. And that's because you don't want it to depoliticize what is already a very political... Well, it would be the vice President who sits in, and they would become the President, so it would take out that issue. The vice President would be sitting in, and if convicted, the vice President becomes President.

Here's what Alan Dershowitz said to that point. The first question is, who's going to preside? I don't think it's going to be Chief Justice Roberts. I don't think he will agree to preside over a trial of a former President. There is only one President, and his name is not Trump.

Let me ask you this, Stan. Do we have any sense yet? Are we getting any rumbling on that issue? Jay, I asked several people on the Democrat side of the aisle in the United States Senate that question over the weekend, and they were not unanimous. I will tell you that the most frequent answer I got was Senate pro tem Patrick Leahy, but I did also hear the answer Kamala Harris. I only heard one person answer that they thought it would be the chief justice.

I'm with Alan Dershowitz on this. I don't think it's going to be the chief justice. If I had to bet, I would bet on Pat Leahy. But Jay, even the United States Senate on the Democrat side of the aisle, they don't know the answer to that question at this point. Yeah, I mean Kamala Harris, I don't think she'd want to do it, just becoming vice President and be thrust into that role of kind of silence.

But also, I mean, you know, it makes it even more partisan to have Pat Leahy that does the chief justice because he's a partisan Democrat, which means if they throw issues up to him to decide, he can start making decisions. Which is why this is so bad. It is so bad that they are setting these precedents as we speak. That's what I was just going to address. They're making up as they go.

Realize that. Well, you say they're making up as they go. You mean literally they're making up as they go. There's no rules on this. It's like you're saying, what is the law?

What is the standard? You know, they can impeach over anything they want if they can get two-thirds of the Senate to agree with them, which they're not going to be able to do here. You know, for instance, there could be a big fight over witnesses. Are they going to want to call a bunch of House representative members that said, hey, we were in there when this attack was going on. Are they going to call Vice President Pence, former Vice President Pence and say, what was your reaction to this?

Now, the question will be, will they get witnesses? Now, the Senate is equally divided. The tie-breaking vote is the vice President.

It's really, really unique and unusual. Yeah. The framers, you know, they debated and rejected the idea of having the federal judiciary preside over impeachment trials. They thought it was better to let the Senate make up their own rules, except in the case of impeaching a President.

But Donald Trump's no longer the President. I just don't. That's why none of this fits into the right framework, because let's say you had a witness debate. Remember that witness debate we had?

Hours and hours and hours on the floor of the United States Senate. And I was doing a lot of that argument on why witnesses were not appropriate, because they already had 17 witnesses. They're acting like they hadn't. Now, they had no witnesses in the House because they rushed it through. Now they want to cure it by doing it in the United States Senate. Again, exactly what they want to do. So they want to cure it by having witnesses maybe in the Senate.

Now, how long? That debate goes on. Let's say it's 50-50. It's 50-50, because that's what the Senate is. So the vice President, Harris, casts the deciding vote. That's why this makes no sense.

That's why this makes no sense. Also, they set a horrendous precedent by voting through an article of impeachment without any witnesses, without hearing any statements, without putting anything on the record. And just by saying, well, we all lived it, so we all know what happened. Well, there were 35 people on the phone call with Ukraine. They didn't just say, well, there are 35 people on the phone call, so we don't need to hear from any of them.

This readout is the readout. And like who they were calling or not, and like who the Republicans were able to call but not able to call or not, by the time it got to the Senate, they had heard from a number of people. Then they wanted to hear from more, because still the House had messed up. And there were people that they didn't really fight to, they didn't feel like fighting to actually try to get subpoena and to testify. And then they wanted to have the Senate do that for them. And the Senate decided, we're not going to do that for you. And this was again an impeachment that you knew the outcome was just potentially how few Republicans would actually go along with it. The same thing again. Eric Swalwell, who I can't even believe is on this committee, it's so ridiculous, is an impeachment manager, was asked this question.

Take a listen. Do you expect members of Congress potentially to testify since they're the ones who saw this whole insurrection go down? We'll be ready for whatever the Senate rules allow. As you pointed out, this is unique. No trial perhaps ever has had jurors who were also witnesses, jurors who were victims, jurors who ran for their lives. That's true because that would be bad jurors. Yes, you could be a juror. That would be due process. But none of this applies. So what you're going to see, if I was trying the case, I think the first thing I'd open up with is a motion to dismiss on constitutional grounds.

If that is denied, likely that you don't have the 50 votes there to do that, or 51. I would then go to the merits, and in the merits of my argument, I would say, assuming everything they're saying is true, does it meet the constitutional burden of this was not protected speech? So assuming everything they said was true, does it meet the burden of Brandenburg versus Ohio, which is the key Supreme Court decision on this, which sets the bar very high for what is not protected speech. It may not have been advisable speech, it may have been wrong speech, it may have been something you wish it never was given, and I could list 100 things that I didn't like about it. But the fact is, the reality is, that to say that it was not constitutionally protected is pretty darn dangerous.

I mean it really is dangerous. Would you start playing them right to their face? Well I think what I would do is I would use the President's speech, in my defense actually, and then I would take the Chuck Schumer speech.

Do we have that? I want people to remember this, because this becomes relevant, and I believe, by the way, as bad as this is, it's protected speech. He doesn't get to talk during this, while you play it for him. He has to sit there and take it. He's got to take it, and now he's the majority leader.

Now we may not have it, so if we do have it, we've got it. This was Chuck Schumer about Supreme Court Justices. 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. So if you rule the wrong way, in our view, your whirlwind is going to be launched against you, you will not know what hit you, you'll ruin the day.

Well wait a minute, this is a lifetime employment. So you can't say, because we're going to beat you in an election. Right.

He has no defense there. He was chastised by the Chief Justice on that, by the way, John Roberts. But the fact is, was that speech not protected? It was protected speech. Protected speech can be aggressive, offensive, rude, and protected.

Unseemly and protected. So it depends on where we want these standards to go. What do we want these standards to be?

What do we want these standards to be? But I think that would be a debate to have if this was a current President. Yeah, but he's not. So that's why I keep, I always bring that up. I constantly be bringing that up. So again, folks, we'll be analyzing this, because you heard from Swalwell, either he's not willing to give it away, or they still don't understand their role. And you'll find from those House managers, a big difference between them and attorneys usually, even if they were former attorneys, because they've been out of practice for so long. So they come across so partisan. It was unbelievable watching how partisan they were. So how off-putting they are to half the Senate. And definitely the 17 they would need to convict. And that's why you can predict this before it starts, unless something, as I've said, spectacularly bad happens or wrong goes on.

You can predict the outcome way before this even begins. We'll talk to you more tomorrow, walking people through this. Where you can learn more about our life-changing work. Become a member today.