USA TODAY International Edition
Questions over Trump’s second trial
As the Senate gears up, legal unknowns abound
WASHINGTON – Former President Donald Trump’s historic second impeachment trial starts next month, but the process really begins Monday, when the House sends the article of impeachment to the Senate and both sides begin preparing for a trial with many unknowns.
The House swiftly impeached Trump on Jan. 13, charging him with inciting an insurrection at the U. S. Capitol the week before. In the trial, senators will vote to convict or acquit Trump.
The trial is unprecedented in nearly every way possible. No president had been impeached twice, and no president has been tried by the Senate after he left office – a question that divides constitutional scholars over what is legally permissible.
Senate Majority Leader Chuck Schumer, D- N. Y., announced the trial will begin the week of Feb. 8 after both sides have had time to file briefs. But much remains unclear on what happens next, including what the trial will look like and when it might conclude. Some have questioned whether the chamber even has the authority to hear the impeachment case, because Trump is no longer in office.
When will the trial actually start?
The first step is the House officially transmitting its article – similar to a charge – to the Senate. That is expected to happen Monday at about 7 p. m. EST.
On Tuesday, senators will be sworn in as members of the “Court of Impeach
ment.” A summons would then be issued to Trump. The president has a week – until Feb. 2 – to answer the article, and the House faces the same deadline to submit its pretrial brief.
By the following Monday, Feb. 8, the president must submit his pretrial brief, and the House must submit its response to the president’s answer filed the previous week. On Feb. 9, the House must submit its pretrial rebuttal brief. At that point, the trial can begin.
Will Justice John Roberts, or someone else, preside over the trial?
Another question that could affect the trial is whether Supreme Court Chief Justice John Roberts presides. Though the Constitution dictates Roberts would preside over an impeachment trial of a president, as he did during Trump’s first trial, it doesn’t address the case of a former president – another question that has left constitutional scholars divided.
Some experts believe Roberts would be able to decide whether to preside over the trial, while others say it would be up to the Senate.
Suzanna Sherry, constitutional law expert at Vanderbilt University in Nashville, Tennessee, who is an authority on impeachment, called it an “open question” and something on which the Senate should try to agree on.
Kent Greenfield, a constitutional law professor at Boston College, argued it could go either way. “The reality is that the text isn’t clear that it would be required of him,” he said.
If the chief justice doesn’t preside, which is laid out in the Constitution to avoid the political conflicts of a vice president or senator overseeing the arguments, either Vice President Kamala Harris or Sen. Patrick Leahy, the Senate pro tempore, would oversee the trial.
How long could the trial last?
Lawmakers and experts agree it’s likely this trial will be shorter than Trump’s last year, which went on for nearly three weeks.
The case against Trump is considered more straightforward than the charges he faced a year ago where he was accused of abusing his power and obstructing Congress after allegations he improperly sought Ukraine’s help to investigate then- candidate Joe Biden’s family.
Biden said Friday that he wouldn’t mind if the impeachment trial started after the Senate was able to confirm more of his Cabinet nominees, given the coronavirus pandemic and other challenges his new administration faces, a position some Democratic senators have backed.
“The more time we have to get up and running to meet theses crises, the better,” he said.
House impeachment managers, who will act as prosecutors arguing the case before the Senate, have largely kept their plans close to the vest, refusing to say whether witnesses might be called, which could extend the trial.
What are the consequences for Trump?
If the Senate voted to convict Trump – which requires support from at least two- thirds of the Senate, or 67 votes – it would not lead to immediate consequences, mainly because Trump already has left office.
“He will not lose his security detail or other perks, because the Former Presidents Act ( which grants those perks) only withholds them if the President’s service in office was ‘ terminated’ by the impeachment and conviction,” Sherry said. “Trump’s term of office was terminated by the election and swearing in of Joe Biden, not by impeachment and conviction.”
The real punishment would happen after – and only after – conviction.
With a simple majority vote ( 51 out of 100), the Senate could disqualify him from holding federal elective office in the future. Essentially, it would prevent Trump from running again for president, an office he has indicated he might pursue in 2024.
In 1974, the House abandoned impeachment after Richard Nixon resigned. But, unlike Trump, Nixon had already been elected twice – and therefore ineligible to run again under the 22nd amendment to the Constitution – so there was no need to disqualify him.
Constitutional scholars say this too has never been tested against a president or former president and is likely to face a legal challenge should senators vote to bar Trump from future office.
Can a former president be convicted?
Constitutional scholars are split on whether a former president can be convicted – and trying a former president has never been tested.
But history and some precedent in the Senate helps offer a glimpse at how the question could be dealt with at Trump’s trial.
Throughout U. S. history, several former officials have been impeached then were tried after they had left office. The Senate has acted in different ways but has typically taken up such trials, and there aren’t indications the chamber would act differently with Trump.
Republicans and some of Trump’s closest allies have argued that an impeachment trial for a former president would violate the Constitution – an argument that is likely to be made by the former president’s attorneys at the trial.
While the question hasn’t been tested for presidents, it has for other officials.
In 1876, the Senate voted on the question, when Secretary of War William Belknap resigned shortly before the House impeached him. A majority of senators voted that he could still be tried. When the Senate held a trial, he was acquitted.
Sherry believes the Senate has the legal authority to hold a trial and vote to convict if they see fit.
“It would defeat the purpose of impeachment as a check on government officials if they could avoid it by leaving office,” she said.
The central issue is the text of the Constitution, which says impeachment applies to presidents, vice presidents and other “civil officers.” It doesn’t delve into former presidents or holding an official who left office accountable for conduct committed while in office.
“The text is not altogether clear. The text and the framers didn’t imagine all the different iterations of situations that could come up,” Greenfield said. “I think most Americans think the Constitution is much more direct than it actually is. It uses vague and generalized language.”
Greenfield said the question and the unpresented nature of Trump’s case is, in a way, a good thing, because impeachment remains rare throughout U. S. history.
“This is a total anomaly. It’s a totally unique situation in our history, thankfully,” Greenfield said. “I think this president proved himself to be historically aberrational, so having a historically aberrational remedy here seems the course.”
Though the Senate has largely ruled such cases of former officials could be heard before the chamber, senators in the late 1700s voted against hearing the trial of former Sen. William Blount and decided it did not have jurisdiction to hear the case because Blount had been expelled.
Will enough Republicans vote to convict Trump?
Though Trump has been impeached twice, the cases brought against him and the politics surrounding them couldn’t be more different.
In Trump’s first impeachment, not a single House Republican voted with Democrats. This time, 10 voted to impeach him. Last year during his first trial, only one Republican senator – Mitt Romney of Utah – voted to convict the president on either of the counts. This time, that number could grow to a handful or potentially a dozen or more.
The attack at the U. S. Capitol marked the Republican Party’s biggest break with Trump since he took office. Some of his closest allies condemned him, and many have left open the possibility of convicting him at his trial, including the top Republican in the chamber, Senate Minority Leader Mitch McConnell.
Several key moderate Republicans made searing remarks about Trump, some calling for him to resign or for the 25th Amendment to be invoked to remove him before he left office last week.
But the group, even if they voted with Democrats, wouldn’t be enough to convict Trump. A supermajority is needed – 67 votes – and Democrats hold 50 seats, so 17 Republicans would be needed if every Democrat voted in favor of convicting the former president.
Many on Capitol Hill believe that if McConnell votes to convict Trump, it could open the floodgates and offer political cover for a dozen or more to do the same.
Why was Trump impeached a second time?
The House approved one article of impeachment Jan. 13, charging Trump with “incitement of insurrection” in the attack at the U. S. Capitol this month.
The article lays out Trump’s conduct before the Jan. 6 attack, noting his “false claims of election fraud in the months leading up to the riot,” claims that he also made in a speech to protesters directly before a mob stormed the Capitol.
The article also cites Trump’s phone call with Georgia’s Secretary of State Brad Raffensperger in which the former president asked Raffensperger to “find” votes that could help him take the state back from Biden.
The House’s impeachment article argues that Trump disregarded his oath of office and his duties as president.
“Trump gravely endangered the security of the United States and its institutions of Government,” the article of impeachment reads. “He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”
Who will be prosecuting and defending?
The nine Democratic House lawmakers who will serve as prosecutors, or “managers,” in the Senate trial represent a mix of seasoned hands and newer faces.
The team of managers will be led by Maryland Rep. Jamie Raskin, who was a constitutional law professor at American University before elected to Congress in 2016. Also on the team: David Cicilline of Rhode Island, Joaquin Castro of Texas, Diana DeGette of Colorado, Madeleine Dean of Pennsylvania, Ted Lieu of California, Joe Neguse of Colorado, Stacey Plaskett of the U. S. Virgin Islands and Eric Swalwell of California.
“For us to heal as a nation, we must remember,” Dean said Friday on MSNBC. “And that is what I believe the trial will represent, some of the very first steps toward this nation healing.”
None of the nine were managers in last year’s impeachment trial against Trump.
Trump has hired South Carolina attorney Butch Bowers to represent him at the upcoming impeachment trial, aides said. Bowers worked for the Justice Department during President George W. Bush’s administration but is better known as for his government work in South Carolina. He has served as counsel to Republican governors Nikki Haley and Mark Sanford, and did a stint as chairman of South Carolina’s election commission.
Trump political adviser Jason Miller confirmed Bowers’ hiring on social media, retweeting praise of the South Carolina attorney.
“He’s good,” Miller tweeted Thursday. “Very good.”