The Rachel Maddow Show weeknights at 9:00 Eastern on MSNBC. 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 the 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? Striving against falsehood and good, striving against evil, powerful redeemer.

Have mercy on our beloved land. 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 refused to allow witnesses or documents to be subpoenaed or admitted as 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, forty four 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 that there would 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 to have happened after there was some dispute as to whether or not he would pay them. Multiple news organizations also reported that he had also insisted that 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, 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, of my own accord and called him Doug Schoen instead of David Schoen.

The reason that was in my head is because Doug Schoen was a Fox News guy forever. Remember, now, I think he's gone to Newsmax, but that's why I had the name Doug in my head, David Show. And the president's lawyer is a different man entirely. I am sorry for that slip. But the reason we are talking about Mr. David shewn, President Trump's lawyer, is because 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 and therefore cannot work after sundown on Friday or all day on Saturday. 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 then 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 that day and he would sit it out.

But it's fine if the trial kept going. Now, 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 show and ask for this change after show and ask for the change.

They decided, OK, we'll work Sundays. Now, David Stone has rescinded his religious observance request to not work on Saturdays. And so they've decided, OK, well, we'll work Saturdays, too. They're going to go seven days. There have been lots of noise on the Democratic side that 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. Well, the end result of whatever went a little haywire there on the president's defense team with Mr.

Schoen, with him submitting that request, having it acceded to and then withdrawing it anyway. The end result is that the Democrats in the Senate now get to run the trial seven days a week with no days off. So they're going to be able to finish it faster, which is what they wanted. Also, somewhat quietly on the sidelines of the impeachment trial today, Senator Schumer's office confirmed to reporters that 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.

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. I mean, for all those weeks of hand-wringing we saw about whether an impeachment trial of President Trump would sidetrack or even derail the ability to get the Biden administration's agenda moving. Well, now they are proceeding with a seven day a week trial while confirming nominees. At the same time, they're on track to get the massive one point nine trillion dollars covid relief plan, that 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 underway. Yesterday, we learned that he had made a last minute addition of a new lawyer named Vanderveer, Michael Vanderveer. Philadelphia Inquirer reporting today that Mr. Van Der Veen recently sued President Trump really recently in the lead up to the twenty twenty election. He sued Trump, arguing that Trump and his campaign were trying to suppress the vote in Democratic leaning areas in Pennsylvania.

Mr. Van Der Veen also defended a college student who was prosecuted for trying to hack into an IRS database to obtain Trump's tax records. That student telling the Inquirer today that Mr. Vanderveer described President Trump to him as a, quote, f ing crook. But he didn't just say that. 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 underway. But that's weird. The Enquirer and NBC News also reporting today that Trump just added two additional lawyers to his team again as the trial is underway, added a lawyer named William Brennan and a woman named a lawyer named Julian Bateman. So now maybe there's five lawyers on the Trump team. But again, it is odd that they are 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. They must 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 saying is 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 a moment when you maybe thought. As the president's defense team started their defense, didn't you maybe think, you know, stuff that's not 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 fourth or fifth press in the United States. I was an assistant D.A. for such a long time. I keep saying prosecutor, but I do understand the difference. 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. 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 on the thing you put the needle down on and we play it.

And here's little Bruce, eight, nine, 10 years old, listening to this back 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 aren't allowed to talk, but I don't see either one of them jumping up and saying I'm wrong about that. There are certainly others probably that are smaller countries that lasted for less time.

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 floodgates. I was going to say originally it will release the whirlwind, which is a bit of a biblical reference. I subsequently learned since I got here that that particular phrase has already been taken, so I figured I better change it to floodgates.

No one alive had ever lived through a presidential impeachment.

Not unless some of you were one hundred and fifty years old, senators sometime in the past realized that you can't do that because you passed a rule that says, hey, can you 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 know I've put in that one that one bit about Nebraska. Twice like 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 for me. Do take the t shirt idea for me, but 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, which we will get to, but also thanks to whatever that was from the president's defense.

So, Senator, you were the you were the one Republican who changed votes to, I guess, what happened? What changed your mind? I said I'd 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.

Now, if I'm an impartial juror and one side is doing a great job and the other side's 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 do you mean? What does it mean for conviction? I don't know. We haven't heard that yet. An impartial juror. Why do you think the Trump defense team did a terrible. Did you listen to it?

I did. OK, then that 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 appeared to have some trouble swallowing, whatever it was that the president's defense team served up today. Then I thought 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 did an effective job.

But I've seen a lot of lawyers and a lot of arguments. And that was. That was not one of the finest I've 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 forty three 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 forty four votes on their side and fifty six votes in favor of going ahead with the trial. Six Republican senators voting with all 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 Times is Meandering Performance by Defense Lawyers Enrages Trump. OK, 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're going to 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 just go away scot free. The Department of Justice does know what to do with such people.

So are you the president's defense counsel? Did you say go arrest him for what he did in January? 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 today that President Trump, quote, has been asking aides and associates about his potential exposure to criminal prosecution after his impeachment trial is completed. And that's what the president is worried about, being criminally prosecuted.

And there's his brand new defense lawyer who he reportedly hired without ever meeting the guy, talking about how Nebraska is quite a judicial thinking place. And also this. After he's out of office, you're going to arrest him. The Department of Justice does know what to do with such people. How did that land today? And Mar a Lago if. The defense side today was astonishing in many ways, the House side, effectively, the prosecutors were just playing a completely different game.

For one thing, they use 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 a rebuttal for whatever it was that was going to come from the president's defense. Once they saw what came for 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 did not know before he argued it today. 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 Joe Nagase and Congressman David Cicilline all made their arguments today about the Constitution and precedent and the Senate, in fact, having jurisdiction to have this trial and that being proven by both 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 underway 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 and I know a lot of people saw the video today. It's re aired many times today. It is very powerful. It is 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 turning everything off for a while that just take this in, I think it was and 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, Washington, D.C. Metropolitan Police, the National Guard, maintenance and custodial crews, the print journalists and TV people who were here and all of our families and friends. And I hope this trial reminds America how personal democracy is. And how personal is the loss of democracy to 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's married to our oldest daughter, Hannah and I. I consider him a son to. 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 six, 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 Stanley's office as colleagues dropped by to console us about the loss of our middle child, Tommy, our beloved Tommy, Mr. Nargus and Mr. Cicilline.

He actually 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.

Lift it 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 18 thirty eight Lyceum speech where he said that if division. And destruction ever come to America? It won't come from abroad. It'll come from within. Said Lincoln. And in that same speech, Lincoln passionately deplored mob violence.

This was right after the murder of Elijah Lovejoy, the abolitionist newspaper editor, and he, 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 them day after the House. Very graciously and warmly welcomed me back in, 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, his office off of the House floor.

They didn't know that the House had been breached yet and that an insurrection or 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 goodbye. 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 Choplin 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 truly taken 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 goodbyes, they thought they were going to die.

My son in law, I've never even been to the Capitol before. And when they were finally rescued over an hour later by capital officers and we were together, I hugged them and I apologized and I told my daughter, Tabitha. Who's twenty four 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 capital with me.

And you know what she said? She said, Dad, I don't want to come back to the capital. 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.

The flag still wanted 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. Officer had a heart attack, officer lost three fingers that day. Two officers have taken their own lives. Senators, this canard. 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 this was the that was the closing of his remarks as 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 that they didn't need to use that time. Senator Dick Durbin is the number two Democrat in the United States Senate. He's going to join us live here next.

Stay with us. When Donald Trump was impeached the first time, it was Mitch McConnell and the Republicans in the Senate dictating the terms of the trial there. This time, though, Majority Leader Chuck Schumer and the Democratic leadership of 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 that are desks and scrawled messages to us, went through our desks and looked at them, literally 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 ellipses for the president of the United States, Donald Trump, to speak to them? Or was it just an accident that within forty minutes or forty five 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. He's the number two Democrat in the United States Senate. 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 as a juror? What's your reaction to how the trial's unfolded thus far?

I think the House managers made a powerful presentation and they opened it up with a 10 minute video. You know, this is a room full of senators who sit as jury now and the conviction of Donald Trump after his impeachment by the House. But it's also a room full of 10 eyewitnessed 100 eyewitnesses. 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 that 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 managers presentation today, that they were not watching that video, the violence on January six, they made clear they were looking at papers and looking away and they wouldn't engage with it.

Did you feel like all of the all of the jurors, all one hundred of you were all taking the proceedings seriously today?

If I took a look at them to glance to my side, of course, 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. Rescanned, the Congressman Raschein, who's the lead manager on the House side, told his personal story, it was so compelling.

It really spoke to the heartbreak that 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 heartrending 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 had lost three fingers. We have heard that another officer whose eyes were gouged that there may be an officer is going to lose sight or potentially lose an eye. We, of course, all saw the solemn ceremony honoring Officer Brian Cesnik when he laid in honor at the at the US Capitol. I I find myself thinking more and more frequently about the fact that we don't know who killed Officer Skurnik. 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 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 are 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 our officers.

We all feel it very personally, members of the Congress that rely on these men and women with the Capitol Police to trust 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, the Democratic whip, which is the number two leadership position in the United States Senate, the new chairman of the Judiciary Committee will soon be holding hearings for attorney general designee Merrick Garland.

Senator Durbin, please come back any time. It's a real pleasure to have you here tonight, sir.

Thank you. Thanks, Rachel. You got 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 says that they misrepresented him and his arguments grievously. And he joins us live here next. Stay with us. The question before the Senate today was, is it 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.

And so if you're not a current president, the proceedings can't even be convened. One of the House impeachment managers that pointed out one specific and awkward problem with that argument from President Trump's defense team. And President Trump's legal trial brief, seventy five page brief, they struggled to find any professors to support their position. They did cite one professor, though. Professor Kalt is an expert in this field who they claimed agreed with them that the only purpose of impeachment is removal.

Professor Colts' position, which they had to have known because it's 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 Kouts 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 just simply give you the highlights. President Trump's brief cites my two thousand one article on lead 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 that they would to 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.

They won the day to day. The vote was fifty six. Forty four in favor of going ahead with the trial. Six Republicans sided with all the Democrats to get those fifty six votes in favor. That vote has immediate implications for the case against President Trump. It means the trial will go forward. Did the Senate also make a little bit of history today in that vote that they just took when they affirmed by fifty six 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 Cultism, Michigan State University law professor. His work on the constitutionality of the impeachment of former federal officials is cited by former President Trump's defense team. Professor called has said that they misrepresented what he wrote, quote, quite badly.

Professor, it's a real pleasure to have you with us tonight. Thank you so much for making time. Thank you for having me. So I've read some of your scholarship on the matter, and it's clear that at least from my non lawyers layman's take on it, that you do believe that late impeachability is a is a 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 it 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 understand it?

Yeah, I mean, the House managers cited my work even more than Trump's lawyers said that the article I wrote it in 2001 before there was an actual case, and I wanted to lay out all the evidence and it was one hundred and twenty four pages long. So all the evidence on both sides, there was plenty for both sides to look at. The problem was Trump's lawyers took things where I said, well, you could argue this. Here's why that's wrong.

And they just took that first or you could argue this and then cited me as though I agreed with that when really what I was doing was explaining why that was wrong.

Looking at a hole at the two sets of arguments that were 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, vice versa? How did how did you feel about how they argued this, given your expertise on the subject?

I thought their arguments were stronger. I I agree because that's what I said in my two thousand one 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 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 in the Constitution is what does the Constitution say and what do we know about what the founders intended? But it is also about precedent, about how previous Senates or how the US 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 and in previous centuries, this vote today when fifty six senators voted that it is constitutional to try this this former president, even though he's no longer in office, will that affect any of the the 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 eighteen seventy six Belnap case that they kept talking about did. In that case, we had a vote on jurisdiction and it was actually exactly the same. It was, it was fifty six percent. The Senate was smaller then, but fifty six percent of the Senate saying we have jurisdiction enough to have the trial go on, but not enough to get a conviction. And the difference was, in that case, the Republicans controlled the House and about a third of the Republicans said, well, actually, looking at the legal arguments, we have to concede, 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'll be a muddled precedent. It'll 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 the partisan content, 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 not to project anything too far in the future anymore. Professor Brian, Michigan State University law 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 really think it made a big difference today. So thank you.

Thank you for having me. Appreciate it. We'll be right back. Stay with us. 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 six, move on from this whole controversy over Trump about trying to overturn the election results. Why can't we just move on? Republicans not in the Beltway, the Republicans in the states are really not moving on at all. They are still actively pursuing the whole stop the Steele idea.

Well, now here's news out of the state of Michigan from the state Senate Republican leader, a man named Mike Shirkey. 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 January 6th, the US Capitol attack. What about the goofy thing? I was there, so that's why not at all the aspects to the whole thing was all staged.

Michigan State Senate Republican leader saying the January 6th attack on the Capitol was a hoax. It was prearranged, it was staged. It was definitely not Trump people. After this video came out, Senator Shirkey has apologized. He's blamed his comments on a lapse in restraint of Htun. But this really is what's happening at state level Republican politics right now. And Washington Republicans are chiding Democrats for going ahead with impeachment, saying, move on, it's all ancient history.

This is all behind us. Look around you. Republicans in the states are really, really not moving on.

That does it for us tonight, special coverage of the Trump impeachment trial starts at 9:00 a.m. Eastern Time tomorrow. So you need to get a good constitutional night of sleep. I will see you again tomorrow night.

The Rachel Maddow Show weeknights at 9:00 Eastern on MSNBC.