Donald Trump’s second unprecedented impeachment trial begins on Tuesday, February 9, in the Senate. He is the first US president to be impeached twice, and it is the first time that an impeachment trial has been held against a former president. The trial will hear allegations that he committed “serious crimes and misdemeanors” before leaving office.
What is Trump accused of?
On January 13, the U.S. House of Representatives voted 232 to 197 for Trump’s impeachment for “inciting insurrection” after his supporters invaded the Capitol in an attempt to overturn the November election result. 10 Republican representatives voted for his impeachment, making it the most bipartisan presidential impeachment in the history of the United States.
Prosecutors place the blame for the violence directly on the ex-president. Five died, hundreds were injured, members of Congress and officials were terrorized, and the headquarters of the US government building was left with “bullet marks on the walls, looted art, stained stools in the halls” – all in an attempt to prevent certification of Joe Biden’s election victory. “President Trump’s responsibility for the January 6 events is unmistakable,” prosecutors charge in an 80-page memo presented last week.
They will argue that their actions of inciting the crowd with unfounded accusations of electoral fraud “endangered the lives of each member of Congress” and “compromised the peaceful transition of power and line of succession”.
What is Donald Trump saying in his defense?
Trump had trouble assembling a legal team. His usual personal lawyer, Rudy Giuliani, had to refuse because he also gave a speech at the event where the former president is accused of fomenting the insurrection. Trump then seems to have fallen out with his first legal team, which was led by Butch Bowers.
Now led by attorneys David Schoen and Bruce L Castor, the Trump team issued a little-argued 14-page document last week that said that his speech did not amount to a call to invade the Capitol and that his trial was unconstitutional anyway, because he left office. Trump will not testify personally.
Who presides over the trial?
Trump’s first impeachment was chaired by Supreme Court President John Roberts as set out in the constitution. However, as the trial is of a former president, Patrick Leahy, 80, the oldest Democratic senator – who holds the title of president pro tempore – will preside. He will be prosecuted by a team of nine impeachment managers from the House, and the entire Senate was sworn in as a jury on 26 January.
How long will the trial last?
It is not known how long the trial will take, but most people believe it will be much shorter than the three-week trial the last time Trump was impeached for his actions in Ukraine, when he was accused of abusing his power and obstructing Congress.
It is not yet clear whether the Senate will vote to allow legal teams to call witnesses in person, although the trial is highly unusual, as the jury is a witness, as senators were present on Capitol Hill and were forced to hide when the crowd invaded the same chamber where the judgment will take place. The prosecution team is expected to include video footage and eyewitness testimony from members of Congress during the construction of their case.
Will Trump be found guilty?
Given this, it seems unlikely. An impeachment trial requires a two-thirds majority for a conviction. If each senator votes, then at least 17 Republicans would need to vote against their former president to reach the required 67-vote limit.
45 senators have already supported a motion by Kentucky Sen Rand Paul that the lawsuit itself is unconstitutional and against the trial. It would be quite a leap for them, in the space of a few weeks, to go on to say that the trial should not take place to declare Trump guilty.
For many Republican senators, the calculation is political. MPs who voted for Trump’s impeachment, like Republican Liz Cheney, have already faced protests and censorship from their state Republican parties for not supporting Trump, who still has strong popular support despite losing the November election.
Will a second impeachment prevent Trump from stepping down in 2024?
Not necessarily. If he was found guilty, there is no immediate punishment, as he is no longer in office. The Senate could, with a simple majority of votes, prevent him from holding a federal elective office in the future. With the Senate divided by 50/50, and the vice president, Kamala Harris, having the casting vote, this could be approved quite simply.
There is a constitutional argument that the Democratic-controlled Senate may try to do this anyway, even if Trump is found innocent, invoking section three of the 14th post-civil war amendment to the US constitution. This prohibits anyone who has “been involved in an insurrection or rebellion” against the United States from taking federal office, but this is likely to be the subject of a significant legal dispute, should it arise.
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An earlier version of this article was amended on January 13, 2021. It incorrectly said that not a single Republican in the Senate found Trump guilty in his first impeachment trial. In fact, a Republican senator, Mitt Romney, voted to impeach him on a charge. The article was republished on February 8 to reflect updated developments with the essay.