Is conviction a real possibility? When will the Senate trial be — and can they even hold one?
President Donald Trump will likely end his fourth year in office the same way he ended his third year: by being impeached by the House of Representatives — this time for, they say, inciting his supporters who attacked the US Capitol on January 6.
House Democrats claim to have already locked down nearly unanimous support for impeachment within their caucus, and if that’s true, that will make Trump the first president to be impeached on two separate occasions. House leaders are planning for a vote on Wednesday, January 13.
Trump has, of course, been here before. The House of Representatives impeached him for alleged abuse of power and obstruction of Congress in December 2019, because of his efforts to pressure Ukraine’s government into investigating then-Democratic presidential candidate Joe Biden. But the Senate acquitted Trump on both counts in February 2020, falling well short of the two-thirds majority necessary to convict him and remove him from office. The verdict votes split almost entirely along party lines, with Sen. Mitt Romney (R-UT) being the sole Republican to vote to convict Trump on one count.
A major difference this time around, though, is that impeachment proceedings are happening mere days before Trump’s term in office expires. Though some Democrats have argued that Trump’s immediate removal is a necessity, it’s obviously less of one if he’s going to be gone in a week anyway. It’s also unclear if the Senate would hold a trial before Biden’s inauguration (particularly since Republicans, many of whom are arguing against impeachment, still have the majority until Georgia’s special election results are certified and Kamala Harris is sworn in as vice president).
We may well then see the first impeachment trial of an ex-president — though there is some dispute about whether the Constitution even allows such a thing. If it goes forward, the main question would shift from whether Trump should be removed from office to whether he should be banned from holding future federal office, effectively blocking him from running for president again in 2024. But whenever a Senate trial might happen, getting two-thirds support in the Senate for conviction — which would require at least 17 Republican senators — remains a tall order.
So Democrats’ desire to make Trump suffer speedy consequences for his behavior, and to defend the rule of law, is being tempered by the reality that acquittal in the Senate is still the likely outcome. Democrats are also weighing the fear that a long trial would delay both the confirmation of Biden’s nominees and the enactment of his legislative agenda, while making for a divisive start to a presidency he’d hoped would be unifying.
What is impeachment?
Impeachment is the tool the US Constitution provides Congress to punish serious misconduct from the president. This misconduct can be either treason or bribery, or it can fall into a vaguer, broader category of “other high Crimes and Misdemeanors.”
The House of Representatives can vote to impeach a president with a simple majority. But impeachment alone has no practical effect, other than kicking the matter to the Senate, which must hold a trial. That trial ends with a vote on a verdict — but it takes two-thirds of the Senate, a supermajority, to convict the president.
If convicted, the president is removed from office, and the vice president would take power. Apart from removal from office, the Constitution allows one other punishment for a convicted president — disqualification from holding “any Office of honor, Trust or Profit under the United States” in the future.
Three US presidents have been impeached: Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019. All were acquitted. A fourth president, Richard Nixon in 1974, resigned to avoid near-certain impeachment and conviction.
How does impeachment work in the House?
The House majority can run the process however it likes, as the Constitution grants the House the “sole Power of Impeachment.” Evidentiary standards — and even the charges themselves — don’t necessary have to be grounded in law; it’s all up to Congress to decide what matters.
In recent decades, the House has only tried to impeach presidents after lengthy investigations, including months of hearings, fact-gathering, and witness testimony. Nixon’s near-impeachment was the culmination of Justice Department and congressional investigations of the Watergate break-in, Clinton’s impeachment came after a lengthy independent counsel investigation of various topics, and Trump’s first impeachment came after a three-month congressional inquiry.
However, there is one precedent for speedy action. In 1868, the House impeached President Andrew Johnson just three days after he violated the Tenure of Office Act (a law they had passed to prevent him from firing the secretary of war). The House didn’t even finalize impeachment articles until after they had already impeached the president.
So the House can move quite quickly on impeachment should its majority and leadership want to, and that’s what they are planning to do this week.
What is the House impeaching Trump for, specifically?
The impeachment is a response to the attack on the US Capitol by Trump supporters that took place last Wednesday.
Specifically, a resolution authored by Rep. David Cicilline (D-RI) and other key members of Congress would impeach Trump on one count: incitement of insurrection.
The article of impeachment alleges that Trump incited violence against the government of the United States. It recounts how, as members of Congress gathered to count the electoral votes that would make Biden’s victory official, Trump spoke to a large crowd, made false claims that he was the true winner, and urged them to “fight like hell.”
“Thus incited by President Trump,” the article continues, “members of the crowd he had addressed … unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”
The impeachment article also mentions Trump’s “prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election,” including Trump’s request that Georgia Secretary of State Brad Raffensperger “find” votes for him to change the outcome there.
“In all this, President Trump gravely endangered the security of the United States and its institutions of Government,” the article continues. “He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”
It concludes by asserting that Trump should be removed from office and disqualified from holding future office.
Why is the House impeaching Trump when he’ll be out of office soon anyway?
This impeachment is a strange one because Trump has already lost reelection, and his term of office expires next week. But Democrats offer several justifications for an impeachment push anyway.
First, they are simply irate about what happened, and think there should be consequences for Trump. Demands that Trump resign or be stripped of his presidential powers via the 25th Amendment are now common in the caucus. But the reality is that Democrats can’t make either of those things happen on their own, and neither appears likely at this point (Trump clearly isn’t resigning, and Vice President Mike Pence reportedly won’t invoke the 25th Amendment).
This leaves House Democrats with impeachment. They can’t actually remove Trump from office through that means on their own, either — but they can impeach him and at least try for his removal, even if odds are again long in the Senate.
Of course, cutting against the “it’s an emergency and he can’t stay even one more day in office” narrative is the fact that the House will have waited a full week after the insurrection to impeach him.
This has led others to argue that impeachment is necessary not just because of what Trump has done, but also for fear of what might happen in the next week.
Will Trump try to pull something else — perhaps declaring martial law and ordering a new election, as his ally Michael Flynn has suggested? Yes, he tepidly promised after the Capitol insurrection to respect the transition of power, but will he actually stick with it? Some lawmakers argue that he can’t be trusted to do so, making his immediate removal necessary.
Another possibility is that impeaching Trump now means the Senate would be in a position to act quickly if Trump truly crosses the Rubicon. Should the Senate already be in possession of the article declaring Trump a danger to democracy, the thinking goes, a trial — and a vote on removal — could be held immediately after Trump were to take some extreme action.
Finally, some hold out hope that this situation — Trump’s incitement of a mob to try to overturn the legitimate election results in a way that placed members of Congress in personal danger — has finally broken some Republicans from Trump irrevocably, and made Senate conviction is a real possibility. And while removal from office would only shave a few days off Trump’s presidency, a ban on him running in 2024 could reshape politics for years to come.
Wait, can the Senate even hold an impeachment trial for a former president?
Experts who have looked at the question have been divided.
Some argue that a former president would be a private citizen, and that impeachment is not meant for private citizens (if they commit misconduct, they should be charged in the ordinary legal system). Others point out that the penalty of being banned from future office is obviously quite relevant for former officeholders, too — and that it makes little sense for an impeached official to be able to evade that ban by resigning before their trial concludes. The Constitution contains no clear answers to these questions.
There is no direct precedent for impeachment of a former president. However, in 1876, Secretary of War William Belknap resigned just before the House was going to impeach him, and the Senate proceeded with holding a trial for him anyway. During his trial, the Senate voted that it did have jurisdiction to hold the trial of a former officeholder — though they did so with just a majority, not a two-thirds majority.
What seems likely is that the Senate will take a similar vote at some point on whether they have jurisdiction. If they decide they do, Trump will likely try to challenge their decision in federal court. Some experts think the Supreme Court would defer to Congress to handle the impeachment process as it wishes, but others believe the Court would want to give a clear ruling on the important constitutional question of whether a former president can be banned from holding office again.
If the Senate holds a trial, when will it be, and what would it look like?
This impeachment is coming at a time of transition for both the presidency and the Senate. Raphael Warnock and Jon Ossoff won last week’s Georgia special elections, but since the results haven’t been certified yet, they have not yet been sworn in, and Mitch McConnell is still the chamber’s majority leader.
The deadline for Georgia to certify its results is on January 22, though Georgia Secretary of State Raffensperger has said he hopes to get it done a bit before that. But if Warnock and Ossoff are sworn in while Trump is still president, the Senate would be split 50-50 — and Vice President Pence would still be around to break ties in Republicans’ favor. So only after Harris is sworn in as vice president and Warnock and Ossoff are sworn in as senators will control of the chamber flip to Democrats.
The upshot is that, at least until January 20 and potentially for a few days after that, McConnell and Republicans still call the shots in the Senate. And while Republicans are in control, they get to decide whether to start the trial and how it will be handled (for instance, how much time to spend on it, and whether to call witnesses).
In a memo obtained by the Washington Post’s Seung Min Kim, McConnell took the position that, because the Senate is not scheduled to reconvene until January 19, he cannot reconvene the chamber for a trial before that unless no senator objects — and it seems likely at least one Trump-supporting Senate Republican would object. This, however, is disputed by Democratic leader Chuck Schumer, who reportedly believes that if he and McConnell both agree to do so, they can reconvene the Senate on their own.
So it’s still not clear whether an impeached Trump’s trial will kick off while he’s still president, or whether he’d become the first former president to face an impeachment trial.
It’s a complicated calculation. On one hand, there’s a deep desire in the party for quick action, but on the other hand is the reality that conviction remains very unlikely — and that a quick trial means McConnell sets the terms. So Democrats might prefer to run the trial when they’re in the majority, rather than have McConnell do it. But then there’s the prospect that the trial would take up so much Senate time that Biden’s nominee confirmations and legislative agenda would be delayed. (The recent practice has been that the Senate does not vote on other matters while a presidential impeachment trial is ongoing.)
So there have been a number of ideas floated over the past few days: House Majority Whip James Clyburn (D-SC) saying the House would delay sending the impeachment articles to the Senate to have a later trial, Schumer brainstorming how to pressure McConnell to hold a trial right away, President-elect Biden wondering if the Senate could spend just half of each day on impeachment and the other half on his agenda. (Biden said Democrats inquired with the Senate parliamentarian and aren’t yet sure.)
Can Trump actually be convicted? Or is this impeachment doomed to end in an acquittal, like the last one?
Though impeachment can pass the House with a simple majority, two-thirds of senators voting in favor would be necessary to actually convict Trump of impeachment charges.
Currently, there are 48 Senate Democrats, and that number will rise to 50 once Warnock and Ossoff are sworn in. Even once their numbers improve, if there’s unanimous Democratic support to convict Trump, they’d need at least 17 Republicans to go along.
And even after an attack on the Capitol that placed senators’ lives in danger, that two-thirds threshold will be very difficult to meet.
Most Republican senators have spent four years defending and excusing Trump. Nearly all of them represent states Trump won in both 2016 and 2020, suggesting their constituents remain enthusiastic about him. And even those appalled by Trump’s actions have an out to point to: that he’s leaving office next week anyway.
Sen. Mitt Romney (R-UT), the sole Republican who voted for removal last time, said on the night of the Capitol siege that he’s not sure there’s enough time left for impeachment. Sen. Ben Sasse (R-NE) has said he’d “consider” impeachment articles approved by the House, but didn’t commit outright to backing them. Sens. Lisa Murkowski (R-AK) and Pat Toomey (R-PA) have said they want Trump to resign but haven’t said they support impeachment and removal.
If you add Sen. Susan Collins (R-ME), who criticized Trump in an op-ed but won’t reveal her views on impeachment, those are probably the five senators most likely to support removal, and none have committed to doing so. Even if they all did, 12 more Republican senators would be necessary as well, and it’s unclear who they would be.
Indeed, others have said they oppose impeachment, like Sen. Lindsey Graham (R-SC), who said it would do “more harm than good,” and Sen. Roy Blunt (R-MO), who warned Trump to “be very careful over the next 10 days” but said he should finish out his term.
Many of these Republicans would likely privately agree that Trump is a menace who should not be permitted to run again. (Those who plan to run for president themselves in 2024 would probably be thrilled if Trump were banned from competing against them, even as they posture as outraged.) The problem for Democrats and impeachment-curious Republicans is finding at least 17 who would agree to hold hands and jump together. And unless that problem is solved, Trump looks on track for his second acquittal.
Author: Andrew Prokop