anything less than holding this president accountable for the violence he caused on january 6th and the harm and pain he caused in trying to jeopardize their democracy in this country. >> rashida tlaib of the great city of detroit, thank you for your time. that is "all in" on this thursday evening. >> excellent, excellent hour. and thanks to you at home for joining us this hour. happy to have you here. the united states senate has a chaplain, his name is barry black, which is cinematic enough. but his voice is beyond that. his voice is among members of the clergy, chaplain barry black has what should be considered an unfair advantage when it comes to his ability to make you think beyond the everyday. to make you think of the other worldly. just by virtue of the magnificent sound of his voice.

>> let us pray. eternal god, author of liberty, take control of this impeachment trial. lord, permit the words of the new england poet james russell lowell to provide our senate jurors with just one perspective. lowell wrote once to every man and nation comes a moment to decide. in the strife of truth with falsehood, for the good or evil side. mighty god, could it really be that simple? could it really be just truth striding against falsehood and

good striving against evil? powerful redeemer, have mercy on our beloved man. we pray in your magnificent name. amen. >> could it really be that simple? could it really be just truth striving against falsehood? barry black today, the senate chaplain. for the first time in american history, an american president has been impeached twice. republicans in the united states senate refuse to allow witnesses or documents to be subpoenaed or admitted at evidence at his first senate impeachment trial. they acquitted him at that first impeachment trial almost exactly one year ago. republicans were still in control of the senate when the president's supporters launched a violent attack on the capitol

last month. the house impeached him again for that, making history. but the republicans in control of the senate refused to come back into session to start the second impeachment trial while trump was still president. they would not consent to start the senate impeachment trial until he was gone from office and the new president was already being sworn in. well, today, 44 out of 50 republican senators voted that this senate impeachment trial right now shouldn't be happening at all, voting essentially that this trial could have only happened while trump was still president, even though they themselves were the ones who blocked that from happening when they were in charge. they were the ones who insisted there could be no trial while trump was in office. they now say because he wasn't tried while he was in office, he should not be tried at all. they will not allow him to be tried while he's president and they will not allow him to be tried after he's president, and that's how they roll, and that's what we know.

but the senate is not controlled by the republicans anymore. and the second senate trial began today, amid interestingly, an unusually large amount of scrambling on the part of the former president's defense. this past weekend, you may recall, donald trump fired his original legal defense team for this trial. it was reportedly -- reported by axios after some dispute as to whether or not he would pay them. multiple news organizations also reported he had also insisted his defense lawyers try to advance the argument at trial that he is secretly still president, that he secretly won the election and joe biden shouldn't be in the oval office, and what, he should be deposed by a violent mob, perhaps? he fired his first defense team the weekend before the trial formally started.

in part, perhaps, because he wouldn't pay them, and in part because they wouldn't argue that. he replaced that initial defense team with two new lawyers, bruce castor and david schoen. now, i have to apologize here for a second. last night, when discussing the president's new lawyer, david schoen, i slipped of my own accord, and called him doug schoen instead of david schoen. the reason is doug schoen was a fox news guy, and now i think he's gone to newsmax, but that's why i had the name doug in my head. david is a different man entirely. i'm sorry for that slip. but the reason we're talking about mr. schoen, trump's lawyer, is a few days ago, he asked for the impeachment trial schedule to be changed to accommodate his religious practice. he strictly observes the jewish sabbath. the senate received that request and agreed to it. they changed the senate impeachment trial schedule, instead of their usual pause on sunday, they decided they would pause on saturday to accommodate mr. schoen. they announced that and formalized it yesterday, and

after that, at the end of the day, mr. schoen said, never mind, he submitted a new letter withdrawing his request that the trial be paused on saturday, saying instead that his colleagues on the president's defense team would happily cover the trial and he would sit it out, but it's fine if the trial kept going. we don't know why he changed his mind. he had asked for a large accommodation and gotten it, and then gave it back, but now, the end result, and this is interesting, is that the senate trial of president trump is going to run seven days a week. that wasn't initially going to happen. they were going to take sundays off before schoen asked for this change. after schoen asked for change, they decided, okay, we'll work sundays. now david schoen has said that's okay, and now there's lots of noise on the democratic side they were worried about the trial stretching on too long, getting in the way of president biden confirming his cabinet secretaries and getting other work done. the end result of whatever went haywire on the president's defense team with mr. schoen

submitting the request, having it acceded to, and withdrawing it anyway, the end result is the democrats in the senate get to run the trial seven days a week with no days off so they can finish it faster which is what they wanted. also, somewhat quietly on the sidelines, senator schumer's office confirmed to reporters even though the impeachment trial is going to be running every day now, seven days a week until it's over, they have also figured out a way to keep confirmation hearings for biden cabinet nominees ongoing at the same time. so even as the senate trial started today, there were still confirmation hearings today for more biden nominees. which means the beltway press whiffed on this one. for all those weeks of hand wringing about whether an impeachment trial of president trump would sidetrack or derail the ability to get the biden administration's agenda moving, well, now, they're proceeding

with a seven-day-a-week trial while confirming nominees at the same time. they're on track to get the massive $1.9 trillion relief plan that biden wants passed by the end of the month, a week before the end of the month, possibly, all at once. they're doing it all at once, not bad. the former president is apparently meanwhile still adding lawyers to his defense team. even as the trial is now under way. yesterday, we learned that he had made a last-minute addition of a new lawyer named van der veen, michael van der veen, philadelphia inquirer reporting today that mr. van der veen recently sued president trump, really recently, in the lead-up to the 2020 election, he sued trump, arguing trump and his campaign were trying to suppress the vote in democratic-leaning areas of pennsylvania. he also defended a college student who was prosecuted for trying to hack into an irs database to obtain trump's tax records. that student saying mr. van der veen described trump to him as a

quote, f'ing crook, but he didn't just say f, apparently he said it for real. and now, that man represents donald trump in his impeachment trial. no word on whether former president trump knew these facts about his new lawyer when he was hired while the trial was already under way. but that's weird. the inquirer and nbc news also reporting today that trump just added two additional lawyers to his team, again, as the trial is under way. a lawyer named william brennan and a lawyer named julianne bateman. now, maybe there's five lawyers on the trump team. but again, it is odd that they're being added even as the trial is starting. i'm sure given what happened to the last five lawyers that president trump fired just last weekend, i'm sure these new ones got some kind of ironclad agreement that they're all going to be paid, right? you would be crazy not to get that. but for a client who is famous for not paying his lawyers, for going ballistic on them and

saying they're terrible and they don't deserve to be paid and he's not going to pay them, there was a moment today when the president's defense team started to present its case, admit it, if you watched the trial, this crossed your mind. there was moment when you maybe thought, as the president's defense team started their defense, didn't you maybe think, you know, is donald trump really going to pry open his wallet and pay the bill when it comes? for these legal services? for this guy? really, is he going to pay? >> my name is bruce castor. i am the lead prosecutor -- lead counsel for the 45th president of the united states, i was an assistant d.a. for so long, i keep saying prosecutor, but i understand the difference. i don't want to steal the thunder from other lawyers. but nebraska, you're going to hear, is quite a judicial thinking place. when you're driving down the street and you look over at your

wife, and you say, hey, you know what, that guy's about to drive through the red light and kill that person, we still know what records are, right? or the thing you put the needle down on and you play it. and here's little bruce 8, 9, 10 years old listening to this in the late '60s, there isn't a member in this room who has not used the term i represent the great state of fill in the blank. why? because they're all great. i know you're not allowed to talk, but i don't see them jumping up saying you're wrong. there are smaller countries that lasted for a shorter time that i don't know about off the top of my head. i saw a headline, representative so-and-so seeks to walk back comments about -- i forget what it was, something that bothered her, instead of flood gates, i was going to say originally, it will release the whirlwind, which is a biblical reference. i subsequently learned that that

particular phrase has been taken so i figured i better change it to flood gates. no one alive had ever lived through a presidential impeachment. not unless some of you are 150 years old. senators some time in the past realized you can't do that because you pass a rule, it says hey, you can't do that. so that's why it's flawed. i don't want to steal the thunder from the other lawyers, but nebraska, you're going to hear, is quite a judicial thinking place. nobody says it that plainly. but unfortunately, i have a way of speaking that way. >> i put in that one bit about nebraska twice. nebraska, you're going to hear, is quite, quite a judicial thinking place. and you can stop right now.

i have already designed the t-shirt, nebraska, you just call me. i will let you use it for free or for a very, very small fee. bruce castor was the man in the spotlight today for the president's defense. he led the president's defense today. it was impossible to follow what he was talking about. but don't take it from me. do take the t-shirt idea from me, but do not take that assessment from me. take it from louisiana republican senator bill cassidy, who had previously voted that the senate shouldn't put president trump on trial because he's a former official. senator cassidy of louisiana changed his mind today, not only thanks to what he heard from the house impeachment managers, but also thanks to whatever that was from the president's defense. >> you were the one republican who changed votes to a yes. what happened? what changed your mind? >> i said i would be an impartial juror. anyone listening to those arguments, the house managers were focused. they were organized.

they relied upon both precedent, the constitution, and legal scholars. they made a compelling argument. president trump's team were disorganized. they did everything they could but to talk about the question at hand. and when they talked about it, they kind of glided over it, almost as if they were embarrassed of their arguments. if i'm an impartial juror and one side is doing a great job and the other side is doing a terrible job, on the issue at hand, as an impartial juror, i'm going to vote for the side that did the good job. >> what does it mean for a conviction? >> i don't know. we haven't heard that yet. i'm an impartial juror. >> why do you think that the trump defense team did a terrible job? >> did you listen to it? >> i did. >> it speaks for itself. >> louisiana republican senator bill cassidy today, explaining why he voted with just five other republicans and all the democrats to go ahead with the trial today.

even senators who voted not to go ahead with the trial appear today have some trouble swallowing whatever it was that the president's defense team served up today. >> i thought that the president's lawyer, the first lawyer, just rambled on and on and on and didn't really address the constitutional argument. finally, the second lawyer got around to it. and i thought he did an effective job, but i have seen a lot of lawyers and a lot of arguments, and that was -- that was not one of the finest i have seen. >> not one of the finest i've seen. he just rambled on and on and didn't address the argument. nevertheless, despite that assessment, republican senator john cornyn of texas sided with 43 other republican senators today and voted with the president's defense team that they shouldn't even go ahead with the trial in the senate. but the republicans lost the vote. it was 44 votes on their side and 56 votes in favor of going ahead with the trial. six republican senators voting

with all of the democrats. and i don't know what the former president thought of his defense team today. the headline right now in "the new york times" is, meandering performance by defense lawyers enrages trump. okay. maybe that's true. i don't know what he really thought of the defense team today. honestly, i don't know if he'll pay their bills when they come. but i have to think that there must have been moments today for the former president that were harder to hear than others. >> after he's out of office, you go and arrest him. so there is no opportunity where the president of the united states can run rampant in january at the end of his term and go away scot-free. the department of justice does know what to do with such people. >> sorry, you're the president's defense counsel, did you say? he could be arrested, maybe he should.

shouldn't go away scot-free, the department of justice knows what to do with such people. cnn had literally reported right before mr. castor said that that president trump, quote, has been asking aides and associates about his potential exposure to criminal prosecution after his impeachment trial is completed. that's what the president is worried about, and that's his brand-new defense lawyer who he reportedly hired without meeting the guy, talking about how nebraska is a judicial thinking place, and also this. >> after he's out of office, you go and arrest him. the department of justice does know what to do with such people. >> how did that land today in mar-a-lago, do you think? the defense side today was astonishing in many ways. the house side, effectively the prosecutors, were playing a completely different game. for one thing, they used less of their time. they in fact gave up the opportunity to use more than a

half hour that they had remaining, which they had reserved as rebuttal for whatever it was that was going to come from the president's defense. once they saw what came from the president's defense, i think they decided they didn't need to rebut it. the centerpiece of their argument was constitutional, that the constitution itself and precedent and the vast bulk of scholarship on the issue all finds the same thing, that the senate can try a former official indeed a former president. in fact, as lead impeachment manager jamie raskin argued today, which i didn't know before he argued it, one of the ways we know for sure that the founders intended impeachment to apply to former officials is that all of the impeachments that were attempted during the lifetimes of the founders, all of them were impeachment of former officials. so if they didn't think impeachment should apply to former officials, they could have objected then. they did not. impeachment has always applied to former officials. congressman raskin and

congressman neguse and cicilline made their arguments and the jurisdiction to have this trial and that proven by history and the law. they then played a stunning 13-minute video showing the attack on the capitol. the president's words that day leading up to it, the constitutional process that was under way in the capitol that was derailed by the mob attack. and after that video, congressman raskin closed with these remarks i'm going to play now. i know a lot of people saw the video today. it's re-aired many times today. it's very powerful. it's very compelling. it's absolutely worth watching, but the remarks by congressman raskin after the video is the thing that had me honestly laying down and turning everything off for a while to just take this in. i think it was really important, and i think it was really powerful. watch. >> to close, i want to say something personal about the

stakes of this decision, whether president trump can stand trial and be held to account for inciting insurrection against us. this trial is personal indeed for every senator, for every member of the house, every manager, all of our staff, the capitol police, the washington, d.c. metropolitan police, the national guard, maintenance and custodial crews, and press and all of our family and friends, and i hope this trial reminds america how personal democracy is. and how personal is the loss of democracy, too. distinguished members of the senate, my youngest daughter, tabitha, was there with me on wednesday, january 6th. it was the day after we buried her brother, our son, tommy. the saddest day of our lives.

also there was my son-in-law, hank, who is married to our oldest daughter, hannah. and i consider him a son, too. even though he eloped with my daughter and didn't tell us what they were going to do. but it was in the middle of covid-19. but the reason they came with me that wednesday, january 6th, was because they wanted to be together with me in the middle of a devastating week for our family. and i told them i had to go back to work because we were counting electoral votes that day on january 6th. it was our constitutional duty. and i invited them instead to come with me to witness this historic event, the peaceful transfer of power in america. and they said they heard that president trump was calling on his followers to come to

washington to protest, and they asked me directly, would it be safe? would it be safe. and i told them, of course it should be safe. this is the capitol. steny hoyer, our majority leader, had kindly offered me the use of his office on the house floor because i was one of the managers that day, and we were going through our grief. so tabitha and hank were with me in steny's office, as colleagues dropped by to console us about the loss of our middle child, tommy. our beloved tommy. mr. neguse and mr. cicilline came to see me that day. dozens of members, lots of republicans, lots of democrats came to see me. and i felt a sense of being lifted up from the agony. and i won't forget their

tenderness. and through the tears, i was working on a speech for the floor. when we would all be together in joint session. and i wanted to focus on unity when we met in the house. i quoted abraham lincoln's famous 1838 speech, where he said that if division and destruction ever come to america, it won't come from abroad. it will come from within. said lincoln. and in that same speech, lincoln passionately deplored mob violence. this is right after the murder of elijah lovejoy, the abolitionist newspaper editor, and lincoln deplored mob violence, and he deplored mob rule, and he said it would lead

to tyranny and despotism in america. that was the speech i gave that day, after the house very graciously and warmly welcomed me back. and tabitha and hank came with me to the floor, and they watched it from the gallery. and it was -- when it was over, they went back to that office, steny's office off of the house floor. they didn't know that the house had been breached yet. and that an insurrection, a riot, or a coup had come to congress. and by the time we learned about it, about what was going on, it was too late. i couldn't get out there to be with them in that office. and all around me, people were calling their wives and their husbands, their loved ones, to say good-bye. members of congress in the house, anyway, were removing their congressional pins so they

wouldn't be identified by the mob as they tried to escape the violence. our new chaplain got up and said a prayer for us, and we were told to put our gas masks on. and then there was a sound i will never forget. the sound of pounding on the door like a battering ram. the most haunting sound i ever heard, and i will never forget it. my chief of staff was with tabitha and hank, locked and barricaded in that office. the kids hiding under the desk. placing what they thought were their final texts and whispered phone calls to say their good-byes. they thought they were going to die. my son-in-law never even had been to the capitol before. and when they were finally rescued over an hour later by capitol officers, and we were

together, i hugged them and i apologized. and i told my daughter, tabitha, who is 24 and a brilliant algebra teacher in teach for america, now, i told her how sorry i was, and i promised her that it would not be like this again the next time she came back to the capitol with me. and you know what she said. she said, dad, i don't want to come back to the capitol. of all the terrible, brutal things i saw and i heard on that day, and since then, that one hit me the hardest. that and watching someone use an american flag pole with the flag

still on it to spear and pummel one of our police officers ruthlessly, mercilessly, tortured by a pole with a flag on it that he was defending. with his very life. people died that day. officers ended up with head damage and brain damage, people's eyes were gouged. an officer had a heart attack. an officer lost three fingers that day. two officers have taken their own lives. senators, this cannot be our future. this cannot be the future of america. we cannot have presidents inciting and mobilizing mob violence against our government, and our institutions, because they refuse to accept the will of the people under the constitution of the united states.

much less can we create a new january exception in our precious beloved constitution that prior generations have died for and fought for so the corrupt presidents have several weeks to get away with whatever it is they want to do. history does not support a january exception in any way, so why would we invent one for the future? >> and that was the closing of his remarks. house impeachment manager jamie raskin closing the case for the day. he actually reserved time for later in the afternoon for rebuttal, but after the president's lawyers spoke, the house impeachment managers concluded they didn't need to use that time. senator dick durbin is the number one democrat in the united states senate. he's going to join us live here next. stay with us.

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when donald trump was impeached the first time, it was mitch mcconnell and the republicans in the senate dictating the terms of the trial. this time, majority leader chuck schumer and the democratic leadership in the senate are in control. this was the number two democrat in the senate, dick durbin, on the eve of the impeachment trial that began this afternoon. >> the mob crashed through the

doors, into this chamber, posed for pictures at our desks and scrawled messages to us, went through our desks and interrupted the business of the united states senate, the counting of the electoral votes. was that just an accident? that thousands of people were in washington on january 6th? was that just an accident that they gathered in the ellipsis for the president of the united states, donald trump, to speak to them? was it just an accident that within 40 minutes or 45 minutes after the president sent them off to the capitol, they were here breaking windows and breaking down doors to come inside? no, it was by design. >> joining us now is illinois' senior senator, dick durbin. senator durbin, it's a rare treat for us to have you here on the show tonight. thank you so much for being here with us. >> good to be with you, rachel.

>> what was it like in the room today from your seat as a juror? what's your reaction to how the trial's unfolded thus far? >> i think the house managers made a powerful presentation. they opened up with a ten-minute video. you know, this is a room full of senators who sit as jury now in the conviction of donald trump after his impeachment by the house. but it's also a room full of 100 eye witnesses, and it's also a room that was a crime scene on january 6th. this is an extraordinary trial because the people sitting in those chairs today in judgment of donald trump lived this experience. and we were reminded of some of the gruesome scenes we were spared that day in the opening by the house managers. >> there was some reporting today which surprised me, actually. that there were a number of senators in the room who were quite visibly not paying attention to the house manager's presentation today, that they

were not watching that video of the violence on january 6th. they made clear they were looking at papers, looking away, and they wouldn't engage with it. did you feel like all of the jurors, all 100 of you, were all taking the proceedings seriously today? >> if i took a look, glanced to my side, it's mainly the democratic senators that i spotted, and they were all paying close attention. i believe they take it very seriously, and they should. i can't speak for many of the other senators that were behind me. i was trying to focus my own attention on what was being presented. you know, when mr. raskin, the congressman raskin, who is the lead manager on the house side, told his personal story, it was so compelling. it really spoke to the heartbreak we feel for the reputation of our government and the building that many of us have called the center of our lives for so many years. >> one of the things that senator raskin came to at the

end of those personal remarks which we just played in full, after talking about his own experience, his own family's incredibly tragic experience recently, and how heart rending that is, he talked about the officers who were hurt. he talked about the fact that two officers have taken their own lives, have died by suicide since the attack. one officer lost -- he said lost three fingers. we have heard that another officer whose eyes were gouged, there may be another officer who will lose sight or potentially lose an eye. we all saw the solemn ceremony honoring officer brian sicknick when he laid in honor at the u.s. capitol. i find myself thinking more and more frequently about the fact that we don't know who killed officer sicknick, there have been no charges there. we don't know who placed those bombs at the republican party and the democratic party headquarters the night before january 6th. i am distressed that the fbi is still putting out new wanted posters every day asking for information on people who have not yet been apprehended.

how do you feel, what do you think we should understand, particularly as judiciary committee chairman, about how the investigation is going into the crimes on capitol hill that day? >> one of our first witnesses before the judiciary committee, which we're going to start very soon, is, of course, the head of the fbi. and those will be the questions asked of him for certain. when it comes to officer sicknick, we all feel it very personally. members of the congress that rely on these men and women with the capitol police to save us if that sort of situation occurs, we lost two of them a few years back. and now to lose this officer, after the memorial service in the rotunda, i went back to meet with his mom and dad, and it was a sad moment, as we stood there and talked about how much he loved police work. he loved serving in the u.s. air force. his mom said at one point when he wanted to be a policeman, she thought, well, thank goodness

he's going to the capitol. that's a safe place for him to be a policeman. and now she's lost her son to that mob, that murderous mob that turned loose on the capitol building. >> illinois senator dick durbin, democratic whip, which is the number two leadership position in the united states senate, the new chairman of the judiciary committee, who will soon be holding hearings for attorney general designee merrick garland. senator durbin, please come back any time. a real pleasure to have you here tonight. thank you. >> thanks, rachel. you have a great show. >> thank you. kind of you to say. all right, former president trump's defense team's arguments today relied heavily, almost predominantly, on the opinion of one legal scholar. that legal scholar said they misrepresented him and his arguments grievously, and he joins us live here, next. stay with us.

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constitutional to hold an impeachment trial for a former president? donald trump's lawyers argued today that it's not constitutional to do that. they say the constitution says an impeachment trial can only be held to remove a current president from office, so if you're not a current president, the proceedings can't even be convened. one of the house impeachment managers pointed out one specific and awkward problem with that argument from president trump's defense team. >> in president trump's legal trial brief, 75-page brief, they struggled to find any professors to support their position. they did cite one professor, though. professor kalt, an expert in this field, who they claimed agreed with them that the only purpose of impeachment is removal.

professor kalt's position, which they had to have known because it's in the article that they cite in the brief, is that removal is, quote, not the sole end of impeachment. actually, in that same article, he describes the view advocated by president trump's lawyers as having deep flaws. and again, you do not have to take my word for it. you can take professor kalt's word for it, the professor they cited in their brief, filed yesterday, because he tweeted about it. on the screen here, this is what he had to say. i'm not going to read through it in great detail. i'll simply give you the highlights. president trump's brief cites my 2001 article on late impeachment a lot, but in several places, they misrepresent what i wrote quite badly. there are multiple examples of such flat out misrepresentations. they didn't have to be disingenuous and misleading like this.

house impeachment managers today made their case that it is entirely constitutional to try a former president in the senate. we knew they would do that. we knew in advance that was their task today. we didn't necessarily expect they would get agreement on that today from the constitutional scholar that donald trump's defense team cited in its arguments on the opposite side. the arguments from the house impeachment managers apparently won the day today. the vote was 56-44 in favor of going ahead with the trial. six republicans sided with all of the democrats to get those 56 votes in favor. that vote has immediate implications for the case against president trump. that means the trial will go forward. did the senate also make a little bit of history today in that vote they took? when they affirmed by 56 votes that a former president can be tried in the senate on impeachment charges, does that mean for the constitutional scholars who study this stuff that this is now at all a more settled question now that the senate has looked at the issue

and weighed in on a binding vote? joining us now is professor brian kalt, michigan state law professor, his work on the constitutionality of the impeachment of former officials is cited by president trump's defense team. he has said they misrepresented what he wrote, quote, quite badly. a real pleasure to have you with us today. thank you so much for making time. >> thank you for having me. >> so i have read some of your scholarship on the matter, and it's clear that at least from my nonlawyer's layman's take on it that you do believe that late impeachability is a thing that can be done, but you engage with both sides of the argument, laid out what reasonable people might argue on both sides of that case, and that seems like that's maybe where the president's defense team cherry picked or got things wrong in a way that misrepresented your take. is that a fair way to represent it? >> yeah. i mean, the house managers cited my work even more than trump's lawyers did.

the article, i wrote it in 2001 before there was an actual case, and i wanted to lay out all of the evidence, and it was 124 pages long. so all the evidence on both sides. there was plenty for both sides to look at there. the problem was trump's lawyers took things where i said, well, you could argue this. here's where that's wrong. and they just took that first part. you could argue this, and then cited me as though i agreed with that, when really, what i was doing is explaining why that was wrong. >> looking at a whole, at the two sets of arguments made today over these three-plus hours of argument on both sides of this issue, what did you think? did you think that the house impeachment managers put forward superior constitutional arguments to those of trump's team or vice versa? how did you feel about how they argued this, given your expertise on the subject? >> i thought their arguments were stronger. i agree because that's what i

said in my 2001 article, but i also think that they engaged in the evidence much more effectively. instead of saying it's simple, look at the text. it says x, and just sort of assuming the conclusion, they dug into it. there are two sides to the argument. and they presented their side, i thought, much more effectively than trump's lawyers presented the other side. on the other hand, it was sort of a foregone conclusion how the vote would go, other than senator cassidy, so i'm not sure how much it really mattered. >> i wanted to talk to you tonight in part because i was curious at a level of scholarship and sort of constitutional interpretation, if it does matter what this vote was today. obviously, part of the argument about questions like this on the constitution is what does the constitution say, and what do we know about what the founders intended, but it also is about precedent, about how previous senates or how the u.s. senate constituted at any one time, has engaged with this question and how did they decide when the question was presented to them. that was so much of the argument

today about what previous senates have done in previous centuries. this vote today when 56 senators voted it is constitutional to try this former president even though he's no longer in office, will that affect any of the scholarship on this issue and how this is viewed as a constitutional matter? >> i don't think so. i think what this does is almost exactly what the 1876 belknap case did. in that case, we had a vote on jurisdiction, and it was actually the same. it was 56%, the senate was smaller then. 56% of the senate saying we have jurisdiction. enough to have the trial go on, but not enough to get a conviction. the difference was in that case the republicans controlled the

house and about a third of the republicans said, well, you know, actually looking at the legal arguments we have to concede that even though our guy is on trial here that there is jurisdiction. if you had one-third of the republicans doing it now, you would have two-thirds. but ultimately it will be a model precedent. it will say, you can go forward with this, but you can't get a conviction. a conviction of someone who already left office, that would be a much stronger precedent. this one is going to be just the same as the last one was. >> it does feel like the partisan content of the senate is much more determinative now in terms of how those votes are going to go. but i've learned not to project anything too far in the future anymore. professor, thank you for helping us understand this tonight and thank you for taking care to make public facing statements about this when you felt like your scholarship was being misrepresented. i think that was a real public service and you didn't have to do it. but i think it made a big difference today. so, thank you. >> well, thank you for having me. >> we'll be right back. stay with us. stay with us

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the theme song of this

impeachment on the republican side is that republicans in d.c. keep saying to democrats that everybody needs to move on from january 6th, move on from this whole controversy of trump trying to overturn the election results. why can't we just move on? republicans not in the beltway, republicans in the states really are not moving on at all. they're still actively pursuing the whole stop the steal idea. now here's news out of the state of michigan from the state senate republican leader. this is brand-new tape just obtained by us tonight after it was published by the "detroit metro times." it's senator shirkey being asked about the u.s. capitol attack. >> what about the d.c. thing? >> i was there. so -- >> that wasn't trump people? >> that's what? >> that wasn't trump people? >> not at all. >> it was ridiculous. it was all staged. >> it was all staged.

michigan's state senate republican leader saying the january 6th attack on the capitol was a hoax, it was pre-arranged, it was staged, it was definitely not trump people. after this came out, senator shirkey apologized. he's blamed it on a lapse in restraint of tongue. in washington republicans are chiding democrats for going on with impeachment saying move on, this is ancient history. this is behind us. look around you. republicans in the states are really, really not moving on.

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that does it for us. special coverage of the trump impeachment trial starts at 9:00 a.m., so you need to get a good constitutional night of sleep. i'll see you again tomorrow night. [ pounding ]