How Trump’s second impeachment will work
Democrats are embarking on the fourth impeachment in American history, exactly half of them aimed at removing Donald Trump from office.
But this one is unlike any other.
Conceived as lawmakers were ducking a violent mob that overran the U.S. Capitol last week, it’s coming just days before the president is leaving office anyway.
Here’s what you need to know when the House convenes at 9 a.m. Wednesday to begin the process.
1) Why impeach now?
Democrats are clear-eyed that impeaching Trump precisely one week before he’s set to leave office might leave some Americans perplexed. But House leaders have emphasized multiple reasons for pushing forward anyway.
The top one is the egregiousness of Trump’s conduct. Trump didn’t just make intemperate comments at a rally when he urged his supporters to march on the Capitol and pressure lawmakers into halting certification of President-elect Joe Biden’s win. Those remarks were the culmination of a monthslong effort to convince followers that the 2020 election had been stolen from him.
Democrats note Trump embarked on a relentless campaign, even before Nov. 3, to sow doubt about the integrity of the election, and his claims grew more outlandish and conspiratorial over time, even as courts, election officials and fact-checks disproved them. One of Trump’s moves considered most audacious occurred less than two weeks ago, when he called Georgia Secretary of State Brad Raffensperger and pressured him to attempt to unilaterally reverse Biden’s victory in the state.
Democrats outline this lengthy effort, including the Raffensperger call, in their single article of impeachment, under the heading “willful incitement of insurrection.” The conduct, they say, is so damaging to the bedrock of American democracy that taking no action would be a dereliction, even with Trump’s term expiring.
A separate reason some Democrats cite to impeach: the process could constrain Trump’s worst impulses in the final week of his term, knowing that any further incitement could coax Senate Republicans — most of whom have previously resisted the House’s push — to act against him. And lastly, an ongoing impeachment would become the immediate backdrop for any attempt by Trump to pardon himself or his supporters for their role in the riots.
2) Will any Republicans support impeachment this time?
Yes. A dozen House Republicans — and maybe more — are considering joining Democrats. On the eve of the House’s impeachment, House GOP Conference Chair Liz Cheney announced she would vote to impeach Trump, and GOP Reps. John Katko and Adam Kinzinger said they would, too.
Particularly after it was reported that Senate Majority Leader Mitch McConnell has indicated Trump’s actions qualify him for removal from office, there was a feeling Tuesday night that a flood of Republican support for impeachment might be on the way.
So far, at least three Republican senators have publicly signaled their openness to conviction this time. And a fourth, Sen. Mitt Romney, became the first lawmaker in history to vote to convict a president of his own party back in 2019. He was the only GOP lawmaker in either chamber to endorse Trump’s impeachment last time.
3) Can the Senate hold a trial for Trump after he leaves office?
Yes. Even though McConnell has privately expressed an openness to ousting Trump, he also recently signaled that the Senate wouldn’t take up the House’s articles until it returns to session on Jan. 19, a day before Biden takes office.
Trump’s few legal defenders say the Senate has no business holding an impeachment trial for a private citizen, which Trump would become just 24 hours after the process starts. But the Constitution also empowers the Senate to impose a sentence on the convicted that isn’t limited to removal from office.
A convicted president could be barred from holding federal office ever again, making a Trump 2024 comeback impossible. A Senate conviction could also strip Trump of his post-presidential salary and other perks from being an ex-president.
4) What would a Senate trial look like?
By their nature, Senate trials are slow and plodding. Typically, the first day is about formalities — the arrival of the Supreme Court chief justice and the swearing-in of the Senate to sit in judgment of the president. The second day is about setting the rules of the trial, including the parameters of potential witnesses and the length of arguments.
In 2019, each side had 24 hours to present their cases, split up over three days apiece. After that, the senators are permitted to ask the prosecutors and defense attorneys questions, a process that can take multiple days. That’s followed by any additional motions — such as the calling of witnesses — before deliberations and a verdict.
This time, the Senate could go a few different ways:
— A traditional trial with similar lengths of argument that would extend a couple of weeks and consume the Senate’s focus during the early days of the Biden administration.
— A truncated trial that includes significantly briefer presentations, an acknowledgment of the more public nature of the evidence against Trump.
— A lengthier half-day-at-a-time trial that permits the Senate to focus on its other business for large parts of the day. Biden has suggested this approach as a compromise that will allow him to govern with Congress in his early tenure even as the Senate considers the charge against Trump.
5) Who will represent Trump at the trial?
This is among the thorniest questions facing the president as he prepares to face his second impeachment. His original trial team included Jay Sekulow, Marty and Jane Raskin, and White House lawyers Pat Cipollone and Patrick Philbin. None of them are expected to return.
That leaves Rudy Giuliani — who has berated Republican senators as “quislings” in recent weeks for refusing to overturn the election — and Alan Dershowitz, who has defended Trump on free-speech grounds, as potential options, though Dershowitz has not committed to becoming a formal part of the Trump team.
The other question is, what opportunities will these lawyers have to answer the House’s charges against Trump? Though Democrats prioritized due process last time, and at least afforded opportunities for Trump to rebut charges and present a case — chances Trump routinely passed up — their breakneck pace might preclude a more robust offer for the president to present a counterargument.
6) What if the Senate did remove Trump before Jan. 20?
This appears to be unlikely, but not impossible. It would require the Senate to return to session earlier than planned — a procedural gambit that itself would be difficult to arrange, as a single senator can object to doing so.
But if two-thirds of the Senate voted to convict Trump ahead of Jan. 20, Vice President Mike Pence would take office ahead of Biden’s inauguration and Biden, despite lots of campaign merchandise suggesting otherwise, would become the 47th president of the United States.
7) Is there precedent for such a hurried impeachment?
Actually, there is, but it’s been awhile. The first-ever impeachment, of Andrew Johnson in 1868, began one day after he violated the Tenure of Office Act.
A House committee recommended impeachment on Feb. 22 that year, and the president was impeached by March 2. Ultimately, the Senate trial dragged for nearly three months before Johnson was acquitted by a single vote. Don’t count on a Senate trial lasting until April.