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DJ Trump Senate Impeachment Trial: How It Works and What You Need to Know

· 02/05/2021 07:55
By Gabriel T. Rubin

Tuesday the Senate will open its impeachment trial of former President Donald Trump, the first time in U.S. history there has been a trial of a president who has left office.

The House of Representatives on Jan. 13 impeached Mr. Trump a second time, for his role in inciting the Jan. 6 Capitol riot, just over a year after it first impeached him for pressing Ukraine to announce investigations that would have aided him politically. The latest vote was 232 to 197, with all Democrats joined by 10 Republicans, in a House chamber protected by National Guard troops stationed throughout the Capitol and its grounds.

After the article of impeachment was sent to the Senate, the upper chamber held a procedural vote on the constitutionality of holding the trial for a president who has left office, and only five Republicans joined Democrats in affirming the legality of the process. That left little doubt as to the final outcome of the trial -- a likely acquittal for Mr. Trump.

The start of the trial was delayed by an agreement between Senate Majority Leader Chuck Schumer (D., N.Y.) and Minority Leader Mitch McConnell (R., Ky.) to allow both sides more time to prepare. Mr. Trump had some difficulty assembling a legal team. His first set of lawyers quit two weeks before the start of the trial. House Speaker Nancy Pelosi (D., Calif.) has named a team of House impeachment managers. Here is how the unprecedented process is playing out.

How Will the Trial Be Structured?

Some Senate Democrats have signaled that they hope for a quick trial that concludes within a matter of days, given the likelihood of an acquittal, the relative clarity of the case (compared with the somewhat complicated nature of Mr. Trump's previous impeachment), and the desire to move expeditiously to President Biden's legislative agenda.

It is unclear whether Democrats will call witnesses, though they invited Mr. Trump to testify under oath -- a suggestion quickly rejected by Mr. Trump's defense team. Mr. Trump's lawyer David Schoen warned Democrats against calling witnesses, and threatened to call Democrat senators "because of the awful bias and prejudgment they've shown," he told Fox News host Sean Hannity.

The Senate will vote on a resolution governing the trial's structure on the first day. It is expected to include time for the prosecution's opening arguments, Mr. Trump's defense, and then a question-and-answer period with senators, followed by closing arguments. After that, the Senate will vote.

According to the Constitution, the chief justice of the Supreme Court only presides over the trial of a sitting president. Senate President Pro Tempore Patrick Leahy, the longest-serving member of the majority party, will preside over this trial.

Who Will Make the Arguments on Each Side?

The case for convicting Mr. Trump will be made by a team of nine House managers, all Democrats, led by Rep. Jamie Raskin of Maryland. The rest of the team consists of Reps. Diana DeGette of Colorado, David Cicilline of Rhode Island, Joaquin Castro of Texas, Eric Swalwell of California, Ted Lieu of California, Stacey Plaskett of the U.S. Virgin Islands, Joe Neguse of Colorado and Madeleine Dean of Pennsylvania.

Mr. Trump's defense team will be led by David Schoen, an Alabama-based trial attorney, and Bruce Castor, a former district attorney in Montgomery County, Pa.

What Does the Constitution Say About a Second Impeachment?

The Constitution gives broad leeway to the House of Representatives to handle the impeachment process. There are no limits on the number of times someone may be impeached, though Mr. Trump is the first person ever to be impeached more than once.

What Are the Consequences of a Second Impeachment?

Because President Biden has already taken office, the practical effects of the second impeachment by the House are mostly symbolic. The Senate, if it successfully convicts Mr. Trump, can't remove him from an office he doesn't hold.

But the Senate could immediately hold a follow-up vote, subject only to a simple majority, to ban Mr. Trump -- who has weighed another presidential run in 2024 -- from ever seeking office again. Those are the only punishments the Senate can consider as part of an impeachment conviction. A Senate conviction after Mr. Trump has left office wouldn't affect his postpresidential benefits, which include a pension and Secret Service protection.

Can the Senate Convict a President Who Has Left Office?

There is no precedent for a president being impeached or convicted after leaving office. President Richard M. Nixon resigned rather than go through impeachment proceedings, and the matter was dropped once he was out of office.

Both the House and Senate did proceed once with impeachment and trial for a resigned cabinet official, President Ulysses S. Grant's war secretary, William Belknap. Mr. Belknap delivered his resignation to the White House minutes before being impeached for corruption on March 2, 1876.

The House still sent over the articles to the Senate, and his trial began the following month. "House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office," according to the Senate historian. Mr. Belknap was present for his trial, and while a majority of senators voted for conviction, he was acquitted because there wasn't a two-thirds majority.

Republican senators -- with the exception of Sens. Mitt Romney (Utah), Lisa Murkowski (Alaska), Susan Collins (Maine), Pat Toomey (Pa.), and Ben Sasse (Neb.) -- have signaled their support for a technical argument: The Senate lacks jurisdiction to try Mr. Trump after he leaves office, they maintain, because he is a private citizen. That could allow the Republicans to thread a political needle by not having to defend his conduct but still voting against a conviction.

A recent report from the Congressional Research Service, the public-policy research arm of Congress, concludes that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried.

Could Trump Have Been Removed Instead Via the 14th Amendment?

Section Three of the 14th Amendment dictates that no state or federal officeholder, from the legislature to the presidency, "shall have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof." Section Five of the amendment also provides an enforcement mechanism: "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article," meaning that only votes in Congress are required to determine whether an officeholder fits the criteria for disqualification from office.

This section of the amendment was written to force the South's power structure after the Civil War to accept the Reconstruction amendments to the Constitution -- including the abolition of slavery and grant of suffrage to Black men. Only those who hadn't engaged in insurrection as members of the Confederacy could hold office. "The Amendment made virtually the entire political leadership of the South ineligible for office," wrote Columbia University Professor Eric Foner in his landmark history, "Reconstruction."

But enforcement of the provision has a rocky and inconclusive history. In 1871, the Senate Committee on Privileges and Elections issued a report on Senator-elect Zebulon Vance of North Carolina, determining that his service to the Confederacy disqualified him from office.

By 1872, the political tides shifted, and Congress, with the support of President Ulysses S. Grant, voted to provide a partial amnesty to former Confederates, allowing many of them to seek office again. The amnesty was further broadened in 1898, and again in the 1970s during debates over amnesty for Vietnam War draft evaders. "The purpose of Section Three was erased from the Constitution less than a generation after ratification," wrote Indiana University law professor Gerard N. Magliocca in a December 2020 analysis.

Write to Gabriel T. Rubin at gabriel.rubin@wsj.com

(END) Dow Jones Newswires

February 05, 2021 07:55 ET (12:55 GMT)

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