The second impeachment trial against Donald Trump and the first impeachment trial against a former US president will begin in earnest this Tuesday in the Senate.
Majority leader Chuck Schumer and minority leader Mitch McConnell have reached an agreement to regulate the structure and timing of the process, Schumer announced on Monday afternoon.
The action begins Tuesday at 12:00 PM ET with a four-hour debate and a vote on whether the Senate can even hold impeachment proceedings against a former president. There's little tension here – a similar vote last week made it clear that the majority of Senators believe they can do so.
The opening disputes then begin on Wednesday afternoon. The House's impeachment managers will come first for their case with up to two days (16 hours total). Then Trump's attorneys have the same time to present their defense. Next, the senators can ask questions to both sides for four hours. After that, the Senate will vote on whether to summon witnesses or documents if the impeachment managers so request. If they vote for it, the process will continue. If not, they will move to a vote on the verdict.
There are indications that this process is likely to be quick. Democratic leaders reportedly hope to end it in about a week, rather than extending it over several weeks, as Trump's first trial and Bill Clinton's 1999 impeachment trial did. It is unclear whether they will stick to this schedule. (Schumer announced that the trial would abort at sunset on Friday and continue on Sunday afternoon so that one of Trump's lawyers can keep the Sabbath.)
Since Trump is no longer president, the main focus of this process is whether he should be denied the office of a future federal office, which would effectively prevent him from seeking another term in 2024. But it would take two-thirds of the Senate to condemn Trump, which means at least 17 Republican senators would have to vote for a condemnation. Without an astonishing turn of events, it seems unlikely – all but five GOP senators have expressed doubts as to whether it is even constitutional to bring a former president to justice.
For Trump's first trial, which took place in January and February 2020, the Democrats argued in vain that the majority of the Republican Senate should allow testimony. But now that the Democrats have a majority, it is unclear whether they will push for witnesses this time, as Marianne Levine of Politico reports.
Some Democrats defend the prospect of a witnessless trial by saying that the events that Trump is charged with – he is charged with inciting riot for inciting a crowd of his supporters to storm the Capitol – took place in public and that testimony would be less useful in this situation. But witnesses could theoretically shed more light on the president's motivations and private actions.
The real justification for a short trial seems twofold. First, Democrats expect Trump's acquittal to be almost certain, and second, they have other priorities. President Joe Biden has dozens of candidates to approve and a massive pandemic relief plan that he hopes will pass Congress in the next few weeks. The longer an impeachment process takes, the more it delays the Senate's action on these other priorities. And if the result of the study is already set in stone, delaying that result will do nothing.
How impeachment proceedings against the Senate work
Impeachment proceedings have the peculiarities of judicial proceedings – with senators as "jurors", impeachment managers as prosecutors, and Trump's legal team as defense. Senate President Pro Tem Patrick Leahy will chair this time instead of Chief Justice John Roberts as Trump is no longer the sitting president. However, the process is at its core a political process that the senators can conduct at their own discretion.
The plan for the structure of this process was negotiated by Schumer and McConnell, with the involvement of the impeachment managers and Trump's lawyers. Although the Democrats could theoretically have worked through a process plan themselves, if McConnell and Republicans had tried, they could have used delaying tactics to drag out the process, as then-Minority Leader Schumer did for Trump's first trial. In addition, this exercise is, at least in theory, about winning 17 Senate Republicans, so excessive partisanship seems counterproductive to this goal.
The structure of this study is as follows:
The constitutional question (Tuesday): After four hours of discussion, the Senate will vote on whether it is responsible for conducting a trial against a former president.
Opening arguments of the public prosecutor's office (Wednesday – Thursday): The impeachment managers of the house will spread their case in a maximum of 16 hours of dispute over a maximum of two days.
Opening Arguments of the Defense (Friday and possibly Sunday): Trump's legal team will have the same amount of time to come up with their opening arguments and if they use everything it will take us through the weekend (the process will pause after sunset on Friday and Saturday for the Sabbath).
Questions from Senators: Senators have four hours to question the impeachment managers or Trump's lawyers.
The witness question: If the House impeachment managers request the calling of witnesses (it is not clear if it is) the Senate will debate and vote on their proposal.
After that is a small question mark. If the Senate approves the calling of witnesses, what happens next may take time. Under this agreement, the witnesses would have to be dismissed first and there would be a discovery and only then would the witnesses actually testify.
However, if no witnesses are called, the trial is drawing to a close. After deciding whether to allow evidence submitted by either side as evidence (which has no technical implications), they will move on to final arguments and a vote on a judgment.
What House Democrats and Trump attorneys will argue
Both the prosecution (the impeachment executives of the House, led by Rep. Jamie Raskin of Maryland) and defense (Trump's attorneys, led by Bruce Castor and David Schoen) are given the opportunity to make in-depth opening presentations and have their arguments on file previewed submitted last week.
The Democrats' argument is that Trump was responsible for starting the January 6th chaos for several reasons:
He spent months lying and claiming without evidence that he was the real election winner, including pressure from various officials (from Georgian Foreign Secretary Brad Raffensperger to Vice President Mike Pence) to abuse their powers to undo Biden's victory and help him stay in power.
Then, specifically on January 6th, he spoke directly to the crowd, which included many rioters, and told them to "fight like hell".
While the Capitol was stormed, Trump condemned Pence for refusing to prevent Congress from counting votes in the states Biden won. Then he was slow to take action to contain the mob and condemn its members.
After advocating Trump's responsibility, House Democrats continue to argue why this crime is serious enough to deserve impeachment – they say it violated Trump's oath of office, was an attack on the democratic process endanger Congress and even undermine national security.
"President Trump's efforts to increase power by inciting violence against Congress were a grave violation of the oath he swore," write the impeachment managers.
Trump's lawyers, meanwhile, argue that he is not responsible for the mob's actions. They claim he did not tell them to storm the Capitol Building and there is no evidence that he had that specific outcome in mind. As for his broader campaign of lies claiming he was the rightful winner, Trump's team said he was only using his "first adjustment right" to "express his belief that the election results were suspicious".
Beyond the debate about Trump's actions, there is a separate debate on whether impeachment proceedings against a former president are even constitutional. Trump's lawyers will argue that this is not the case.
There is no clear answer on this subject in the Constitution. While the Senate ruled that it could hold impeachment proceedings against a former cabinet secretary in 1876, that view was not unanimously held. Some argue that a past president would be a private individual and that impeachment is not intended for private individuals. However, others point out that the suspension of the future office penalty is of great importance to former public officials.
Regardless of the reasons for the argument, it is quickly becoming extremely popular with Republican senators for political reasons. Eventually, if the process is unconstitutional, it will save them defending Trump's behavior. Last week, 45 out of 50 Senate Republicans passed a procedural vote indicating they have at least some understanding of this argument – which certainly makes Trump's belief unlikely. This issue will be the first task for the Senate trial on Tuesday.
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