What to expect at Trump's second impeachment trial

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Former President Trump’s second impeachment trial will begin Tuesday, when senators will consider whether to convict the former president of incitement of insurrection after a mob of his supporters overran the U.S. Capitol in a deadly attack on January 6.

Mr. Trump will likely be acquitted, but senators are still obligated to sit through hours of arguments from House impeachment managers and the president’s attorneys. The House impeached Mr. Trump on January 13, one week after the assault on the Capitol, on a charge of inciting an insurrection. Ten House Republicans joined every Democrat in voting to impeach Mr. Trump. 

Here are details of the impeachment trial:

How will the trial work?

The Constitution grants the Senate “the sole Power to try all Impeachments,” with a two-thirds vote is required to convict. The president, vice president or any civil officer of the federal government may be impeached and tried.

The House has appointed impeachment managers who will act as prosecutors and, along with the president’s attorneys, lay out their case on the Senate floor. The impeachment managers and the president’s lawyers will each have a certain period of time allotted to make their arguments, and then senators may ask questions in writing before the final vote on whether to convict.

The Constitution dictates the chief justice of the Supreme Court should preside over an impeachment trial. Chief Justice John Roberts presided during the 2020 impeachment trial of Mr. Trump. However, Senator Patrick Leahy will preside over the trial as president pro tempore of the Senate, as the chief justice and Vice President Kamala Harris have both declined to preside. The president pro tempore is traditionally the longest serving member of the Senate from the majority party.

In the final vote on whether to convict Mr. Trump, all 100 senators will stand up and declare whether they believe him to be “guilty” or “not guilty.”

What will the House impeachment managers argue?

House impeachment managers released a pretrial brief on February 2. Mr. Trump’s lawyers have until February 8 to file a rebuttal.

In their memorandum, the impeachment managers argued Mr. Trump was “singularly responsible” for the January 6 attack, making the case the former president encouraged the attack by repeatedly refusing to concede the election while promoting baseless claims about voter fraud and encouraging his supporters to challenge the results.

“President Trump’s responsibility for the events of January 6 is unmistakable,” the managers said in their 80-page brief. The former president’s “conduct must be declared unacceptable in the clearest and most unequivocal terms,” the managers wrote.

The nine Democratic managers, led by Congressman Jamie Raskin, a lawyer from Maryland, said the Senate has an obligation to hear the case against Mr. Trump, despite some Republicans arguing it is unconstitutional to hold a trial for a president who is no longer in office.

“President Trump endangered the very constitutional system that protects all other rights, including freedom of expression,” the managers wrote. “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 January 6.”

What will Mr. Trump’s attorneys argue?

The president’s attorneys, David Schoen and Bruce Castor Jr., also released a memorandum on February 2 responding to the article of impeachment and previewing their argument at the trial. They argued the trial is an unconstitutional overreach by Congress, while denying the former president incited rioters to attack the Capitol.

“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,” Schoen and Castor wrote in the 14-page memo. The lawyers also argued the House “deprived [Mr. Trump] of due process” by impeaching him without holding any hearings beforehand, thus denying him the opportunity to present his own evidence.

Castor and Schoen further claimed the article of impeachment violates Mr. Trump’s right to free speech. The impeachment article cites remarks Mr. Trump made to supporters at a rally on January 6, where he overturned the crowd to “fight like hell” to overturn the election. The Capitol was breached hours later. 

“It is admitted that persons unlawfully breached and vandalized the Capitol, that people were injured and killed, and that law enforcement is currently investigating and prosecuting those who were responsible,” Schoen and Castor argued. “It is denied that President Trump incited the crowd to engage in destructive behavior. It is denied that the phrase ‘if you don’t fight like hell you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech.”

Will Mr. Trump testify in the trial?

Mr. Trump’s attorneys rejected a request from the impeachment managers for the former president to testify under oath.

“Presidents Gerald Ford and Bill Clinton both provided testimony while in office — and the Supreme Court held just last year that you were not immune from legal process while serving as president — so there is no doubt that you can testify in these proceedings,” the lead impeachment manager, Congressman Jamie Raskin, wrote in a letter to Schoen and Castor last week. “Indeed, whereas a sitting president might raise concerns about distraction from their official duties, that concern is obviously inapplicable here. We therefore anticipate your availability to testify.”

In a reply, Castor and Schoen called Raskin’s request a “public relations stunt” in a response later in the day.

“As you certainly know, there is no such thing as a negative inference in this unconstitutional proceeding,” they wrote in response to Raskin. “Your letter only confirms what is known to everyone: you cannot prove your allegations against the 45th president of the United States, who is now a private citizen. The use of our Constitution to bring a purported impeachment proceeding is much too serious to try to play these games.”

Will Mr. Trump be convicted?

Mr. Trump is expected to be acquitted, as conviction would require 67 senators to find him guilty. The Senate is currently split 50-50 between Democrats and Republicans, so 17 Republicans would have to join all 50 Democrats. Forty-five Republican senators voted to dismiss the trial on constitutional grounds last month, indicating there are not enough votes to convict the president.

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