Oliver O’ConnellTue, 9 February 2021, 8:56 am
Donald Trump will face a second trial in the United States Senate beginning on Tuesday, 9 February, having been impeached by the House of Representatives for “incitement of insurrection”. The single article of impeachment relates to his actions on and leading up to 6 January, when the US Capitol was stormed by his supporters, leaving five dead.
While Mr Trump was impeached while still in office, the Senate’s outgoing majority leader at the time, Mitch McConnell said that a “fair or serious trial” could not conclude before Joe Biden was sworn in as US president, and Mr Trump’s successor, on 20 January.
Democrat House impeachment managers delivered the ratified article of impeachment to the Senate on 26 January. After which, senators were sworn in as jurors. An attempt to dismiss the impeachment trial brought by Senator Rand Paul failed, but only five Republicans joined Democrats in saying that the trial should go ahead, indicating that a conviction of the former president is unlikely as that requires a two-thirds Senate majority.
The trial is expected to take two weeks. If convicted Mr Trump may also face a second simple majority vote barring him from running for office again as well as other possible sanctions.
What is impeachment?
The founders of the United States feared presidents might abuse their powers, so they included in the Constitution a process for removing one from office.
Under the Constitution, the president can be removed from office for “Treason, Bribery, or other High Crimes and Misdemeanours”.
Given the vague nature of the phrase, high crimes and misdemeanours have historically encompassed corruption and abuses of the public trust, as opposed to indictable violations of criminal statutes.
Former President Gerald Ford, while in Congress, famously said: “An impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
No president has ever been removed as a direct result of impeachment.
The three presidents who were impeached by the House — Andrew Johnson, Bill Clinton, and Donald Trump — were not convicted by the Senate. It has only been a year since the Trump impeachment trial in the upper chamber of Congress.
How does it work?
Impeachment begins in the House, the lower chamber, which debates and votes on whether to bring charges against the president via approval of an impeachment resolution, or “articles of impeachment”, by a simple majority of the body’s members.
The Constitution gives House leaders wide latitude in deciding how to conduct impeachment proceedings, legal experts have said.
In the first Trump impeachment, the House Intelligence Committee conducted an investigation into whether Trump abused his power to pressure Ukraine to launch investigations that would benefit him politically. Weeks of closed-door testimony and televised hearings were held before a formal evidence report was issued.
Formal charges were then prepared based on the report and the full House impeachment vote was carried out. After approval, the action then moved to the Senate for trial, with House members acting as the prosecutors; the senators as jurors; and Chief Justice of the United States John Roberts presiding. As we know, ultimately the president was not removed from office.
Proceedings were expedited this time around, with the articles of impeachment introduced on Monday, with the vote taking place on Wednesday afternoon.
What happens in the Senate?
There is debate about whether the Constitution requires a Senate trial, but Senate rules in effect do require one.
In such a trial, House members act as prosecutors, witnesses will be called, and senators will vote on any punishment requiring a two-thirds majority vote.
If a trial were to proceed and a conviction to be handed down, Mr Trump would be removed from office with only days left of his presidency. He could also be barred from seeking elected office again and may lose various benefits afforded to former presidents should other votes be scheduled specific to those punishments — which require a simple majority vote.
While Senate Majority Leader Mitch McConnell allowed the previous impeachment trial to proceed, it was initially unclear what he might do the second time around. Mr McConnell rejected a bid to enact an emergency session of the Senate to conduct a full trial before the transition of power to the Biden administration, instead saying the legislative body would consider the House resolution after the inauguration.
Mr McConnell has since been replaced as Senate Majority Leader by Democrat Chuck Schumer.
What about opening a trial and quickly ending it?
The Senate rules allow members to file, before the conclusion of the trial, motions to dismiss the charges against the president. If such a motion passes by a simple majority, the impeachment proceedings effectively end.
President Clinton’s Senate impeachment trial, which did not end in a conviction, lasted five weeks. Halfway through the proceedings, a Democratic senator introduced a motion to dismiss, which was voted down.
What’s the party breakdown in Congress?
Democrats control the House. The House comprises 433 members at present (there are two vacancies), 222 of whom are Democrats. As a result, the Democrats could have impeached Mr Trump with no Republican support. However, 10 House Republicans voted in favour of impeachment in January.
In 2020 the chamber voted largely along party lines to impeach the president. In 1998, the same was true when Republicans controlled the House and impeached Democrat President Clinton.
Prior to the 2020 election, the Senate had 53 Republicans, 45 Democrats and two independents who caucus with the Democrats. Conviction and removal of a president would require a two-thirds majority.
Following the election and the Georgia runoffs, the chamber now has a 50:50 party split, with Vice President Kamala Harris able to cast a tie-breaking vote when needed.
Democrats would need seventeen Republicans to vote for conviction, which given the results for the vote to dismiss on 27 January, when only five GOP senators voted with them, seems highly unlikely.
The move by Democrats and the few Republicans that joined them in the House and Senate is also symbolic and underlines that such actions cannot go unpunished.
Mr McConnell has not publicly said whether he will convict Mr Trump, instead saying he would look at the legal arguments. He has privately told confidants he supports the House’s impeachment, TheNew York Times has reported, and is reportedly leaving it to individual members of the Senate GOP to vote with their consciences on whether to vote to convict.
Could Trump have been removed before the end of his term?
Following Mr McConnell’s decision not to recall the Senate for an emergency session, removing Mr Trump by impeachment was not going to happen while he was still in the White House.
While there are no set timelines for an impeachment, even though the article was pushed through the House in record time, it became clear very quickly that Senate consideration would have to wait until after he left office.
Some experts also argue about whether an impeachment trial can be pursued after an individual has left office, there is precedent at lower ranks in the government, but that debate continues. Without the potential punishment of being removed from office, other sanctions may be introduced in the Senate.
A separate resolution was passed calling on Vice President Mike Pence to convene the cabinet to discuss whether to invoke the 25th Amendment that would remove the president from office for not being able to carry out his duties. The vice president refused to consider the matter.
What would have happened if Trump had been removed?
Had Mr Trump been removed from office or resigned before the end of his term, Vice President Mike Pence would become president for the remainder of the administration – mere days – ending at midday on 20 January, 2021.
If that had happened, Mr Pence would hold the record for the shortest term in office ever by a US president, beating President William Henry Harrison who died on 4 April 1841, just 31 days into his term.
With additional reporting from Reuters