Donald Trump is the first president in U.S. history impeached twice by the House of Representatives. The first time around, it was clear from the start that the Senate would fall far short of the two-thirds supermajority needed to convict him and thus remove him from office. (In the end, only one Republican senator, Mitt Romney, joined Democrats in voting to convict, on one count.) This time could be different. Enough Republicans are angry about Trump’s role in fueling the Jan. 6 riot at the Capitol that a two-thirds vote for conviction isn’t out of the question. And Trump will in all likelihood be an ex-president by the time the Senate votes, which raises questions about the purpose and legality of Senate action.
1. What happens next?
The single article of impeachment approved by the House, charging Trump with incitement of insurrection, is sent to the Senate. There, in one of the more unusual spectacles in American politics, the 100 members are sworn in as the jury in a trial, with “impeachment managers” functioning as prosecutors. Witnesses can be called, evidence can be submitted, and impeachment managers and counsel for the accused give opening and closing statements before the senators vote whether to acquit or convict.
2. When will such a trial begin?
That’s not clear. It almost certainly won’t be before Trump’s term ends and President-elect Joe Biden is sworn in on Jan. 20. Much depends on how the outgoing Senate leader, Republican Mitch McConnell; the incoming one, Democrat Chuck Schumer; and House Speaker Nancy Pelosi navigate the logistics of a trial, a change of administration and a shift in power in the Senate all happening simultaneously. Pelosi hasn’t said publicly when she’ll send the article of impeachment to the Senate. Once that happens, all other business grinds to a halt unless all 100 senators agree to conduct other work. That could mean no confirmation votes for Biden’s nominees or votes on early legislative initiatives, raising the prospect that he could start his administration without key cabinet secretaries in place. Trump’s 2020 Senate impeachment trial lasted almost three weeks.
3. Does it matter that Trump would already be out of office?
Sure. The legality of a Senate impeachment trial after a president has left office is an open question, never tested in the courts. That’s because no president impeached by the House has ever been convicted by the Senate, much less after leaving office. (A sparse but consistent line of non-presidential impeachments in the past -- federal judges and members of presidential Cabinets are also subject to impeachment -- suggests the Senate does have legal authority to put Trump on trial even after his term ends.) On a practical level, the most obvious reason to impeach a president is to remove him from office, which would be a moot point.
4. What would be the point of a Senate trial, then?
Trump has made noises about running for the presidency again in 2024, a prospect that alarms many Democrats and complicates the ambitions of other Republicans who envision themselves in the Oval Office. Should he be convicted (this time) by the required two-thirds supermajority in the Senate, senators could also vote to disqualify him from serving in future federal office, which would take only a simple majority. (Article 1 of the Constitution says impeachment judgments can include “disqualification to hold and enjoy any office of honor, trust or profit under the United States.”) If convicted, Trump also could lose many of the benefits afforded to former presidents, which, under the Former Presidents Act of 1958, include a lifetime pension, an annual travel budget and funding for an office and staff. Lifetime protection by the Secret Service is one benefit that would not be affected.
5. Is a two-thirds majority for conviction possible this time?
That’s hard to tell at this point. Once Georgia’s two new senators are sworn in, the Senate will have 48 Democrats plus two independents who vote with them. Assuming all 50 of them vote to convict, they will need the support of 17 Republicans. McConnell will be key. He is said to have told associates he believes that Trump engaged in impeachable offenses, but he hasn’t gone so far as to say he would vote to convict. In a note to Republicans Jan. 13, McConnell said he would decide how to vote based on the “legal arguments when they are presented.” If he were to support conviction, that could have enormous sway among Republicans in the chamber. At the moment, only a few have signaled they might vote to convict.
The Reference Shelf
- Trump tried to burnish his legacy even as Congress took up impeachment, again.
- A Congressional Research Service report on the benefits given to former presidents.
- Impeach Trump and disqualify him from office, writes Bloomberg Opinion columnist Ramesh Ponnuru.
- A post-presidency impeachment trial in the Senate would be unconstitutional, former appellate judge J. Michael Luttig argued in the Washington Post.
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January 14, 2021 at 04:57AM
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