WASHINGTON — Donald Trump will face his second impeachment trial this week as Democrats press forward with an extraordinary reckoning to hold him responsible for the deadly ransacking of the Capitol by his loyalists a month ago.
Trump, who said he was exercising his constitutional right to free speech and denies he incited the insurrection on Jan. 6 that left five dead as Congress certified President Joe Biden’s election, is the only president to be impeached twice but also the first to face an impeachment trial after he has left office.
Yet just as Democratic House managers arguing that Trump committed high crimes and misdemeanors failed to persuade Senate Republicans to convict him a year ago, many expect the Democratic prosecutors to fail to win their votes again this year for the single article of impeachment.
"The impeachment trial may seem like a foregone conclusion, but trials sometimes turn out differently, especially as new evidence is presented — and we are still learning new details about the plot," said CUNY historian Ted Widmer.
"But even more importantly, the trial sends a message to future presidents that you cannot send armed followers into the Capitol with violent intent, simply because you don’t like the result of an election," he said.
The impeachment trial in the Senate begins Tuesday, forcing the slim Democratic majority to set aside the work they’ve begun with a sense of urgency in a bid to pass a massive COVID-19 relief package and to confirm Biden appointees to carry out his policies.
In a legal brief Monday, Trump's lawyers called the impeachment a "brazen political act" and "unconstitutional." The House Democrats argued Trump must be held accountable for his "betrayal" of his office and called objections to the trial "absurd constitutional arguments."
Two key issues are expected to dominate the proceedings: whether Trump’s unproven charge of a rigged election was incitement or free speech, and whether Trump can be tried for impeachment now that he’s out of office.
Here’s a guide to the impeachment trial.
The Senate will vote Tuesday on the trial’s structure and schedule, which could be completed in as little as 48 hours over five or six days. It starts with a four-hour debate and Senate vote on the trial's legitimacy. Each side gets up to 16 hours for arguments, followed by four hours of senators' questions. Then comes a four-hour debate and vote on whether to have witnesses. Each side gets two hours for closing arguments before the Senate votes on whether to convict. The trial will last until next week, pausing Friday evening through Sunday to allow a Trump attorney to observe the Jewish Sabbath. In a departure from past practice, Chief Justice John G. Roberts declined to preside, leaving that job to Sen. Pat Leahy (D-Vt.), the Senate’s president pro tem.
On Jan. 13, House Democrats and 10 Republicans approved an article of impeachment that charges Trump with "Incitement of Insurrection." It accuses him of inciting a Washington, D.C., rally to go to the Capitol with exhortations such as, "if you don’t fight like hell, you’re not going to have a country anymore." It alleges Trump for months complained falsely that he won but lost by fraud as he tried to subvert vote certification. "President Trump gravely endangered the security of the United States and its institutions of Government," it said. "He will remain a threat to national security, democracy, and the Constitution if allowed to remain in office."
The leader of the nine House managers arguing the case to convict Trump will be Rep. Jamie Raskin (D-Md.), a constitutional law professor. The diverse team of experienced lawyers includes a gay former Rhode Island mayor, a naturalized citizen from Taiwan, the first Eritrean-American in Congress, a Republican turned Democrat representing the U.S. territory of the Virgin Islands, and a Pennsylvanian congresswoman whose constituents includes one of Trump’s top lawyers.
The defense team
Trump’s legal defense, hastily arranged after the first team withdrew on Jan. 31, will be led by Bruce Castor, a former Pennsylvania district attorney, and Georgia defense lawyer David Schoen, who represented Trump’s friend Roger Stone. Castor is best known for declining to prosecute Bill Cosby in a sexual assault case that later led to Cosby’s conviction. Schoen has represented civil rights and other clients, including — he told the Atlanta Jewish Times — Russian, Israeli and Italian mafia and "a guy the government claimed was the biggest Mafioso in the world."
Incitement or free speech?
Did Trump’s remarks to the rally amount to incitement or did it fall into the realm of protected free speech? Trump’s lawyers argue Trump "exercised his First Amendment right" in saying he believes the election was stolen, and deny he incited the rally to destructive behavior. His "fight like hell" line was about fighting for election security, they said. And they said they will point out that Democrats have made remarks as incendiary as Trump’s. The House managers replied that "the First Amendment does not apply at all to an impeachment proceeding," which is a political proceeding on an official’s misconduct. "It would be perverse to suggest that our shared commitment to free speech requires the Senate to ignore the obvious: That President Trump is singularly responsible for the violence and destruction that unfolded in our seat of government on Jan. 6," the managers said.
Trial on the trial
Can someone who has left public office be impeached for their actions while in office? That might end up as the most salient issue in Trump’s second impeachment. It is an unsettled and close question, with many scholars leaning to an answer of yes. But both arguments for and against it are laden with caveats and flaws, according to Brian Kalt, a Michigan State University law professor and expert on the issue. Trump’s lawyers have made this a centerpiece of their defense. "The constitutional provision requires that a person actually hold office to be impeached," they wrote, since impeachment removes a public official from office. Since Trump is no longer in office the trial is "a legal nullity," Trump’s lawyers said. The House managers argue Trump was in office when the House impeached him. The trial is not just to remove him from office but also to bar him from holding a future office. "There is no ‘January Exception’ to impeachment," they wrote, noting he left office Jan. 20. "A president must answer comprehensively for his conduct in office from his first day in office through his last."
In 1876, Secretary of War William Belknap rushed to the White House to submit his resignation just before the House approved articles of impeachment for a kickback scheme he had with vendors. Despite his arguments that he could not be impeached because he no longer was in office, the House impeached him and by a majority vote the Senate chose to hold a trial. After deliberating, the majority of senators voted to convict but they fell five votes short of the required two-thirds of the vote. The senators voting no explained that they thought the Senate did not have jurisdiction to impeach someone no longer in public office.
During the swearing-in of senators as jurors in the Trump impeachment trial, Sen. Rand Paul (R-Ky.) raised a point of order objecting to the proceedings because he said private citizens can’t be impeached. The Senate voted 55-45 to table the point of order. If those 45 Republicans also vote no on the article of impeachment, Democrats won’t have the 67 votes they need to convict Trump and bar him from holding office again.
The long-term impact of the Trump impeachment trial remains as uncertain as Trump’s political future and legacy, said University of Texas history professor H.W. Brands.
"If Trump is acquitted, as seems almost certain, and he fades away, then it will be a footnote at most in future histories. The big deal will have been his defeat in the 2020 election," Brands said in an email.
"If he is acquitted but uses the trial to rally his base, and if he gets elected again in 2024, it will be seen as a major mistake by the Democrats, for giving him a platform his election defeat had denied him," he said.
"So the answer to this question about what history will say, like most such questions, is: ‘We’ll have to wait and see.’"