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What to expect from Trump’s second Senate impeachment trial

The action starts Tuesday. It might not last long.

The top of the US Capitol building seen through a razor-wire-topped fence.
New security measures at the Capitol have been added since the January 6 riot that killed several people.
Sarah Silbiger/Getty Images

The second impeachment trial of Donald Trump, and the first impeachment trial of a former US president, began in earnest in the Senate on Tuesday, February 9.

The action kicks off in the early afternoon Tuesday, with four hours of debate and then a vote on whether the Senate can even hold an impeachment trial for a former president. There’s little suspense here — a similar vote last week made clear that a majority of senators believe they can do so.

Then, at noon on Wednesday, opening arguments will begin. The House impeachment managers will go first, with up to two days (16 hours total) for their case. Then Trump’s lawyers will get the same amount of time to present their defense. Next, senators will get to ask questions of both sides for four hours. After that, the Senate will vote on whether they should subpoena any witnesses or documents, if the impeachment managers request to do so. If they vote to do so, the trial will continue; if not, they’ll move toward a vote on the verdict.

There are signs this trial is likely to be a speedy one. Democratic leaders reportedly hope to finish it in about a week, rather than having it stretch over multiple weeks as Trump’s first trial and Bill Clinton’s 1999 impeachment trial did. It is unclear whether they will meet that schedule. (Schumer initially announced that the trial will break on Friday at sundown and resume Sunday afternoon, to allow one of Trump’s attorneys, David Schoen, to observe the Sabbath. But Schoen subsequently withdrew that request, so the schedule may change.)

Since Trump is no longer president, the main question at stake in this trial is whether he should be barred from holding future federal office, which would effectively prevent him from seeking another term in 2024. But it would take two-thirds of the Senate to convict Trump, meaning at least 17 Republican senators would need to vote for conviction. Absent a stunning turn of events, that seems unlikely — already, all but five GOP senators have expressed doubt about whether it’s even constitutional to try a former president.

For Trump’s first trial, which took place in January and February of 2020, Democrats argued in vain that the Republican Senate majority should allow testimony from additional witnesses. But now that Democrats have the majority, it’s unclear if they will push for witnesses this time around, as Politico’s Marianne Levine reports.

Some Democrats are defending the prospect of a witness-less trial by saying that the events Trump is being impeached over — he is charged with incitement of insurrection, being blamed for spurring a mob of his supporters to storm the Capitol — took place in public view, and that witness testimony would be less useful in this situation. But witnesses could theoretically shed further light on the president’s motivations and private actions.

The true justification for a short trial seems twofold. First, Democrats expect Trump’s acquittal is nearly certain, and second, they have other priorities. President Joe Biden has dozens of nominees he needs confirmed, and a massive pandemic relief plan he hopes Congress will pass in the next few weeks. The longer an impeachment trial takes, the more it will delay Senate action on these other priorities. And if the trial’s outcome is already set in stone, delaying that outcome will achieve nothing.

How a Senate impeachment trial works

An impeachment trial has the trappings of a court proceeding — with senators serving as “jurors,” House impeachment managers as prosecutors, and Trump’s legal team as the defense. Senate President Pro Tem Patrick Leahy will preside instead of Chief Justice John Roberts this time, because Trump is no longer the sitting president. The trial is at its heart a political proceeding, however, which senators can run as they see fit.

The plan for this trial’s structure was negotiated by Schumer and McConnell, with input from the impeachment managers and Trump’s lawyers. Though theoretically Democrats could have rammed through a trial plan on their own, if they had tried to do so, McConnell and Republicans could have used delay tactics to drag out the process, as then-Minority Leader Schumer did for Trump’s first trial. Also, the point of this exercise is at least theoretically to win over 17 Senate Republicans, so excess partisanship seems counterproductive to that aim.

This trial’s structure will be as follows:

  1. The constitutionality question (Tuesday): After four hours of argument, the Senate will vote on whether they have the jurisdiction to hold a former president’s trial.
  2. Prosecution’s opening arguments (Wednesday–Thursday): The House impeachment managers will make their case, in a maximum of 16 hours of argument, spread out over no more than two days.
  3. Defense’s opening arguments (Friday and potentially Saturday): Trump’s legal team will have the same amount of time to make their opening arguments, and if they use it all, that will take us through the weekend. (The trial was initially supposed to take a break after sundown Friday and on Saturday for the Sabbath, but that may now change, because one of Trump’s lawyers has withdrawn his request for the recess.)
  4. Questions from senators: Senators will have four hours to ask questions of the impeachment managers or Trump’s lawyers.
  5. The witness question: If the House impeachment managers request to call witnesses (it’s not clear if they will), the Senate will then debate and vote on their proposal.

After that is a bit of a question mark. If the Senate approves calling witnesses, what happens next could take some time. Under this deal, the witnesses would first have to be deposed and some discovery would take place, and only then would the witnesses actually testify.

However, if no witnesses are called, the trial will move toward its conclusion. After resolving whether evidence presented by each side should be admitted as evidence (which doesn’t technically have any impact), they will move to closing arguments and a vote on a verdict.

What House Democrats and Trump lawyers will argue

Both the prosecution (the House impeachment managers, led by Rep. Jamie Raskin of Maryland) and the defense (Trump’s lawyers, led by Bruce Castor and David Schoen) will get the chance to make extensive opening presentations, and they previewed their arguments in filings submitted last week.

Democrats’ argument is that Trump bears responsibility for inciting the January 6 chaos, for several reasons:

  • He spent months lying and claiming without evidence that he was the true winner of the election, including pressuring various officials (from Georgia Secretary of State Brad Raffensperger to Vice President Mike Pence) to abuse their powers to overturn Biden’s win and help him stay in power.
  • Then, on January 6 specifically, he spoke directly to the crowd many rioters were a part of, and egged them on to “fight like hell.”
  • As the Capitol was being stormed, Trump was condemning Pence for refusing to try to block Congress from counting electoral votes in states Biden won. Then he was slow to take action to rein in the mob and to condemn its members.

Then, having made their case that Trump bears responsibility, the House Democrats proceed to argue why this offense is so serious that it merits impeachment — they say it violated Trump’s oath of office, was an attack on the democratic process, imperiled Congress, and even undermined national security.

“President Trump’s effort to extend his grip on power by fomenting violence against Congress was a profound violation of the oath he swore,” the impeachment managers write.

Trump’s lawyers, meanwhile, are arguing that he bears no responsibility for the mob’s actions. They assert that he did not tell them to storm the Capitol building, and there’s no evidence that he had that specific outcome in mind. As for his broader campaign of lies claiming he was the rightful winner, well, Trump’s team says that was just him exercising his “First Amendment right” to “express his belief that the election results were suspect.”

Beyond the debate over Trump’s actions, there is a separate unfolding debate over whether having an impeachment trial for a former president is even constitutional. Trump’s lawyers will argue that it is not.

There is no clear answer on the matter in the Constitution. The Senate did decide it could hold an impeachment trial for a former Cabinet secretary in 1876, but that opinion wasn’t unanimously held. Some argue that a former president would be a private citizen, and that impeachment is not meant for private citizens. But others point out that the penalty of being barred from future office is quite relevant for former officeholders.

Regardless of the merits of the argument, it’s quickly become extremely popular among Republican senators for political reasons. After all, if the trial is unconstitutional, that saves them from having to mount a defense of Trump’s conduct. Last week, 45 of 50 Senate Republicans cast a procedural vote indicating they have at least some sympathy for this argument — which certainly makes Trump’s conviction seem unlikely. This topic is the first order of business for the Senate’s trial on Tuesday.