Utah Sen. Mike Lee on Thursday attacked the House-passed articles of impeachment against former President Donald Trump, saying they are irresponsible and assume facts not in evidence.
Lee made that statement in an interview on the One America News Network (OAN), a right-wing news outlet to which Trump had urged his followers to switch when he had a falling-out with conservative Fox News after his election loss.
Lee said the impeachment uses “words like unmistakably and directly responsible” to describe Trump’s role in inciting the Jan. 6 riot at the U.S. Capitol that killed five people, so “it sets up a really high bar” of proof.
Lee, a lawyer, said, “If you were in a court of law, you’d essentially be arguing direct causation.”
He said that is difficult to prove.
“There are a lot of intervening steps between the moment someone makes an argument and someone gives a speech … [and] when other people engage in criminal activity,” he said.
“I don’t think there’s any courtroom in America where you could connect a set of words spoken with a criminal act unless there was a lot of direction given in those words.”
Lee contends that did not happen, so the articles of impeachment are flawed.
“I think to use words like ‘absolutely and directly responsible’ is itself an irresponsible statement,” Lee said. “And it assumes facts not in evidence.”
Members of the Senate have been sworn in to hear the second impeachment of Trump, but the trial is not scheduled to begin until next week.
Lee was among 45 GOP senators who, in a preliminary vote, contended that it is unconstitutional to impeach a president who already has left office, even though conviction would prevent him from holding office again, strip him of his pension and take away his security detail. (Utah Sen. Mitt Romney was one of five Republicans who voted with Democrats that it is constitutional).
Lee was asked if that question of constitutionality might be appealed to the U.S. Supreme Court, and Lee said he was unsure.
“The general assumption is that the Senate is itself the court of impeachment, and the Senate has sole jurisdiction over findings regarding our own jurisdiction,” he said.
“There’s another school of thought that says that if we act outside of that jurisdiction, then … we’re not acting as a court of impeachment and therefore lacked jurisdiction” and it might be challenged in the federal court system.
It may be a moot point because conviction of Trump is not seen as likely, since 45 of 50 Senate Republicans have voted that they consider this trial as unconstitutional — and at least 17 of them would need to join all Democrats to achieve the two-thirds majority needed for conviction.
Lee said another sign the impeachment is unconstitutional comes because Chief Justice of the United States John Roberts will not preside at the upcoming trial — Senate President Pro Tempore Patrick Leahy will — because a chief justice presides by constitutional rule only if a president is on trial.
“Chief Justice Roberts recognizes that Donald Trump is no longer the president of the United States, so there’s no need for him to preside. That, in turn, leads, in the minds of many, to the conclusion [that] if he’s not the president of the United States, why is he standing for an impeachment trial?” Lee added, “Therefore, that draws into question whether we have jurisdiction at all.”