How Trump's second impeachment will work

Here’s what you need to know when the house meets at 9:00 a.m. on Wednesday to begin the process.

1) Why accuse now?

Democrats have clear eyes that the indictment against Trump exactly a week before he leaves office could stump some Americans. But the leaders of the House have highlighted several reasons for moving forward anyway.

The top one is the insolence of Trump’s behavior. Trump made more than moderate comments at a rally when he urged his supporters to march on the Capitol and pressure lawmakers to stop certifying President-elect Joe Biden’s victory. These statements were the culmination of months of effort to convince supporters that the 2020 election had been stolen from him.

Democrats note that even before Nov. 3, Trump launched a relentless campaign to sow doubts about the integrity of the elections, and his claims became more eccentric and conspiratorial over time, even as courts, election officials, and fact-checking broke them. One of Trump’s boldest moves took place less than two weeks ago when he called Georgian Foreign Secretary Brad Raffensperger and pressured him to try to unilaterally reverse Biden’s victory in the state.

Democrats outline these protracted efforts, including Raffensperger’s appeal, in their only impeachment trial under the heading of “willful incitement to insurrection”. The behavior, it is said, is so detrimental to the foundations of American democracy that it would be a forfeit not to take action even after Trump’s term expires.

Another reason some Democrats cite for indictment: the trial could curtail Trump’s worst impetus in the final week of his tenure, knowing that any further incitement will come from Senate Republicans – most of whom have previously resisted the House push – could lead to take action against him. Finally, ongoing impeachment would become the immediate backdrop to any attempt by Trump to apologize to himself or his supporters for their role in the unrest.

2) Will Republicans support impeachment this time?

Yes. A dozen House Republicans – and maybe more – are considering joining the Democrats. On the eve of the House’s impeachment, Liz Cheney, Chair of the House’s GOP Conference, announced that she would vote for the Trump indictment, and GOP Reps John Katko and Adam Kinzinger said they would too.

In particular, after it was reported that Senate Majority Leader Mitch McConnell pointed out that Trump’s actions qualify him for impeachment, there was a feeling on Tuesday night that a spate of Republican support for impeachment might be on the way.

So far, this time around at least three Republican senators have publicly signaled their openness to belief. And a fourth, Senator Mitt Romney, became the first lawmaker in history to vote in 2019 to condemn a president of his own party. He was the only GOP lawmaker in both houses to endorse Trump’s impeachment last time.

3) Can the Senate hold a trial against Trump after he leaves office?

Yes. Although McConnell has privately expressed his openness to oust Trump, he has recently signaled that the Senate will not take up the House’s articles until he returns to session on January 19, a day before Biden takes office.

Trump’s few legal defenders say the Senate has nothing to do with holding an impeachment trial against a private individual that Trump would conduct just 24 hours after the trial began. The constitution also empowers the Senate to impose a penalty on those convicted that is not limited to removal from office.

A convicted president could be banned from ever holding a federal office again, making a comeback for Trump in 2024 impossible. A Senate conviction could also deprive Trump of his post-president salary and other perks as an ex-president.

4) What would a trial against the Senate look like?

The Senate trials are inherently slow and sluggish. Usually the first day involves formalities – the arrival of the Supreme Court Chief Justice and the swearing-in of the Senate to sit on the President’s verdict. The second day is about setting the rules of the trial, including the parameters of potential witnesses and the length of the arguments.

In 2019, each side had 24 hours to present their cases, divided into three days each. Then the senators are allowed to ask the prosecutors and defense attorneys questions, which can take several days. This is followed by further motions – such as summoning witnesses – before deliberations and a judgment.

This time the Senate could go different ways:

– A traditional process with similar argumentation times, stretching over a couple of weeks, which would occupy the Senate’s focus in the early days of the Biden administration.

– An abbreviated process that includes significantly shorter presentations, an acknowledgment of the more public nature of the evidence against Trump.

– A lengthy half-day process that allows the Senate to focus on other business for much of the day. Biden has proposed this approach as a compromise that will allow him to rule with Congress in his early tenure, even if the Senate is considering indicting Trump.

5) Who will represent Trump at the negotiation?

This is one of the most sensitive questions the President faces as he prepares for his second impeachment. His original trial team included Jay Sekulow, Marty, and Jane Raskin, and White House attorneys Pat Cipollone and Patrick Philbin. None of them are likely to return.

That leaves Rudy Giuliani – who has been calling Republican senators “quislings” for the past few weeks for refusing to topple the election – and Alan Dershowitz, who has defended Trump on freedom of speech, as possible options, despite Dershowitz made no commitment to become a President formally part of the Trump team.

The other question is what options will these attorneys have to answer the House charges against Trump? Although the Democrats prioritized due process last time around and at least offered Trump an opportunity to refute charges and bring a case – opportunities Trump routinely missed – their breakneck pace could preclude a more robust offer for the president to come up with a counter-argument.

6) What if the Senate removed Trump before January 20th?

This seems unlikely, but not impossible. The Senate would have to return to the session earlier than planned – a procedural gambit that would be difficult to arrange itself as a single Senator can object to it.

However, if two-thirds of the Senate voted to condemn Trump before January 20, Vice President Mike Pence would take office before Biden’s inauguration and Biden would become the 47th President of the United States despite numerous campaign articles suggesting otherwise.

7) Is there a precedent for such a hasty impeachment?

Indeed, there is, but it’s been a while. Andrew Johnson’s first impeachment in 1868 began the day after he broke the Tenure of Office Act.

A House committee recommended impeachment on February 22nd of that year, and the president was charged until March 2nd. Ultimately, the Senate trial lasted nearly three months before Johnson was acquitted in a single vote. Don’t count on a Senate trial that lasts until April.

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