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Impeachment trial preview: President Trump's second Senate trial to begin Tuesday

Trump Impeachment
Posted at 8:28 PM, Feb 05, 2021
and last updated 2021-02-08 16:13:33-05

For the second time in 13 months, President Donald Trump faces conviction in the US Senate after being impeached in the House of Representatives.

While there are many differences between the impeachment process Trump previously went through and the upcoming Senate trial, the result will likely be the same.

The Senate impeachment trial is scheduled to start on Tuesday. It is unknown exactly how long the trial will last.

The charge

Trump is being tried on a single impeachment article on “incitement of insurrection.”

Effectively, Democrats are accusing Trump of instigating the riot at the US Capitol on Jan. 6 amid the Electoral College counting.

Five people died in the Capitol riot, including a member of the Capitol Police.

The US House voted by a 232-197 margin to impeach Trump.

Ten Republican members of Congress joined the entire Democratic caucus in impeaching Trump, making it the most bipartisan impeachment of a US president in history.

The process

The House needed a majority to impeach the president.

Now, a two-thirds majority in the Senate is needed to convict Trump, meaning 17 Republican members would have to join all 50 Senate Democrats to issue a conviction.

But this trial is unusual as it comes after Trump has left office. An impeachment trial is to decide whether to remove someone from federal office.

Currently, Trump is not in federal office.

However, there is a provision that if someone is convicted in the Senate, the Senate only needs a simple majority to ban someone from holding federal office in the future.

Senate Majority Leader Chuck Schumer has indicated the goal of Democrats is to prevent Trump from holding office again, which would preclude him from running in 2024.

On Monday, Schumer revealed that he has come to an agreement with Senate Republicans, House managers and Trump's defense on the process and schedule for the trial:

  • Each side gets 16 hours over 2 days to deliver arguments.
  • There will be a Senate vote if the prosecution or defense wants to call on witnesses.
  • The trial will pause at the Sabbath on Friday and resume on Sunday, per the request of Trump's defense team.

The evidence

In an 80-page brief, lead impeachment prosecutor Rep. Jamie Raskin places blame for the Jan. 6 riot at the US Capitol on Trump. The brief claims that Trump called on supporters to join him for a “Stop the Steal” rally on Jan. 6.

Raskin’s brief said that Trump’s words of “fight like hell [or] you’re not going to have a country anymore,” and, “You’ll never take back our country with weakness. You have to show strength, and you have to be strong,” sparked the crowd’s actions.

The Democrats’ brief said that Trump’s instance that Biden stole the election was “dangerous.”

“By mid-December 2020, President Trump had spent months insisting to his base that the only way he could lose the election was a dangerous, wide-ranging conspiracy against them that threatened America itself,” Raskin wrote in the brief. “After the Electoral College vote, he channeled that fury toward Jan. 6, which he presented as the final firewall against a historic fraud that ‘stole’ their democracy.”

Also cited in the House prosecution’s brief was Trump’s phone call with Georgia Secretary of State Brad Raffensperger.

During the call, which Raffensperger’s office leaked to the press in its entirety, Trump insisted that Raffensperger “find 11,780 votes” as Raffensperger disputed several election conspiracy theories brought up by Trump during the call.

The defense

Led by Bruce Castor, Trump's defense is arguing that a former president cannot be tried and convicted.

The defense team cites Article II, Section 4 of the Constitution, which states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Trump’s team says it is impossible to “remove” Trump since he is no longer president.

“The Senate of the United States lacks jurisdiction over the 45th President because he holds no public office from which he can be removed, and the Constitution limits the authority of the Senate in cases of impeachment to removal from office as the prerequisite active remedy allowed the Senate under our Constitution,” according to Castor’s brief.

The Trump team is denying what Trump said about “we won this election, and we won it by a landslide” was demonstrably “false.”

This claim is countered by dozens of courts that have thrown out cases by Trump’s campaign that have alleged fraud. It also comes as President Joe Biden won the 2020 presidential election by more than 7 million votes.

Trump’s legal team is also denying the phone call with Raffensperger was improper.

“It is denied President Trump made any effort to subvert the certification of the results of the 2020 Presidential election,” according to Castor’s brief. “It is denied that the word ‘find’ was inappropriate in context.”

Fallout for Republicans

In the weeks since the House impeachment trial, the 10 Republicans who voted to impeach Trump have faced intense criticism from within the party.

Among them was Rep. Liz Cheney, who faced a vote on Wednesday by Republican colleagues on whether she should remain in GOP leadership.

While it is not known how some Republicans will vote in a trial, the Senate held a vote last month on the constitutionality of convicting a former president. Forty-five out of 50 Republican members voted that it is not constitutional to convict a former president.

While it’s possible, if not likely, the same five Senate members who agreed Trump could be tried will also vote to convict Trump, it seems unlikely many more Republicans would vote to convict given the political fallout for the 10 House members who voted against their party.

Justin Boggs is a writer for the E.W. Scripps National Desk. Follow him on Twitter @jjboggs or on Facebook.