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Ask Bob: What's Sen. Leahy's Role in Trump's 2nd Impeachment Trial?

Sen. Patrick Leahy is sworn in as President Pro Tempore of the Senate on Feb. 4, 2021, with wife Marcelle Pomerleau by his side.
Greg Nash
Associated Press
Sen. Patrick Leahy is sworn in as President Pro Tempore of the Senate on Feb. 4, 2021, with wife Marcelle Pomerleau by his side. Leahys position in the Senate means he will preside over the second impeachment hearing for former President Donald Trump.

The Senate impeachment trial of former President Donald Trump begins Tuesday, Feb. 9, and Vermont's Sen. Patrick Leahy will play a key role in the trial. As Senate President Pro Tem, Leahy will be the presiding officer. In the latest Ask Bob, senior political reporter Bob Kinzel explains Leahy's responsibilities and what to expect from this historic second impeachment trial.

What does that article of impeachment charge? What is the House's argument for impeachment?

The House article of impeachment charges two things that are linked together. One, that for many weeks after the election, Donald Trump as president repeatedly made false claims about the legitimacy of the outcome of the 2020 presidential election, and that these claims culminated in the mob riot at the Capitol building on Jan. 6.

More From NPR: House Transmits Article Of Impeachment Against Trump To Senate

And two, that on Jan. 6, through his words to a large rally, Trump bears "the unmistakable responsibility for an insurrection at the Capitol." Trump's lawyers argue that whatever he said at that rally is protected free speech under his First Amendment rights. And, they argue, the Senate trial is unconstitutional because Trump is no longer in office, and is a private citizen.

Hear this Ask Bob interview featured on Brave Little State:

For Trump's first impeachment trial, U.S. Supreme Court Chief Justice John Roberts was the presiding officer. Why is Sen. Leahy the presiding officer this time?

Chief Justice Roberts turned down the opportunity to be the presiding officer largely on the grounds that Donald Trump Is no longer in office, and a case could be made that the trial is not Constitutional, and therefore the Chief Justice is no longer required to be there.

So the Democrats needed to make a decision: who would preside? And their choice was Sen. Leahy. He had just been sworn in as the President Pro Tem of the Senate, putting him third in line for presidential succession. He's also a lawyer, and a former chairman of the Senate Judiciary Committee. So the Democrats thought he would be the perfect person to be the presiding officer of the impeachment trial.

More from VPR: After Examination, Tests, Sen. Patrick Leahy Heads Home From Hospital

Recall that last month Sen. Leahy was sent to the hospital by the capitol physician. Let's remember: he is 80-years-old.

Here's what we know about his health after that scare: He had some muscle spasms in the afternoon, and it was determined that additional tests at George Washington University hospital would be prudent. The Capitol physician said these were being done to be extremely cautious.

After examining Leahy and reviewing the test results, Leahy was allowed to go home around 8 p.m. that evening. When I talked with Sen. Leahy a few days ago, he said he was "feeling fine" and somewhat embarrassed about the whole situation, considering the way it turned out. But he agreed that caution was the right approach to take.

Now, if for some reason his health does become an issue during the trial, the Democrats would select another person to be the presiding officer, but Leahy could still vote on the impeachment question.

More From NPR: Can The Senate Try An Ex-President?

Former President Trump is no longer in office. Is this impeachment trial unconstitutional?

It's a key question. In the history of this country, there have been 20 people impeached by the House: 15 judges, three presidents, a cabinet member and one Senator. And it's the case of that cabinet member that seems to hold some precedent here.

More From VPR: Constitutional Scholar: As Congress Mulls Impeachment, 14th Amendment Could Bar Trump From Office

The year was 1876, and War Secretary William Belknap, who was considered to be a U.S. Civil War hero, was taking bribes for government contracts. He got caught, and he immediately resigned. But that afternoon, the House impeached him and the Senate later held a trial. Now, the Senate did not convict him, but Senate leaders said it was important to hold the trial, even though he'd left office, to discourage this kind of behavior in the future.

I asked Sen. Leahy how he responds to the argument that the impeachment trial is unconstitutional.

"Because he was impeached while still president, some would say the Senate has the duty to hear the case. The impeachment already happened." - Sen. Patrick Leahy
How does Sen. Leahy respond to the criticism from Senate Republicans that, as the presiding officer, he's both the judge and a member of the jury in this impeachment trial?

In in his many years in the Senate, Sen. Leahy has been the presiding officer on many, many occasions. And he says he has always ruled on issues in a nonpartisan way. I think he views the Republican complaints as an attack on his character.

"Nobody, Republican or Democrat, has ever suggested I was anything but fair. I really make a mark of pride to make sure that my rules are fair. And in this case, they will be." - Sen. Patrick Leahy
Republicans argue Democrats should be looking for unity now, and not trying to impeach President Trump. What does Sen. Leahy say to that?

It's an argument that a lot of Republicans in Congress are making. They say they heard President Biden in his inaugural address call for unity in government going forward. I asked Sen. Leahy if he feels the Republicans have a point. It's very clear he doesn't think so.

"When you Incite a riot and five people die, you'll say, 'Oh, well, we might cause partisanship if we say anything about it.' You just can't do that." - Sen. Patrick Leahy

More From NPR: 'I Did Nothing Wrong': Trump Defiant After Senate Acquittal

<b>How many senators would need to vote in order to find former President Trump guilty? </b>

It's takes a two-thirds majority of Senators who are present. So if all 100 senators are there, they're going to need 67 votes. Now, the Senate is split: 50 Democrats, 50 Republicans, with Vice President Kamala Harris giving the Democrats the majority. So if all 50 Democrats vote guilty, they're going to need at least 17 Republicans to join with them.

Based on some of the procedural votes that have already taken place, there are perhaps five, maybe six Republicans at this time who would vote guilty. But this is a very unusual trial, because the members of the Senate were there, in their chamber, on the day of the insurrection. They don't need to rely on witness testimony. They were there! They saw the riot first-hand, while they were being led through the halls of the Capitol building to a safe room. Will this make a difference in the final vote? I don't think anybody knows for sure.

Have questions, comments or tips? Send us a message or tweet reporter Bob Kinzel @VPRKinzel.

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