The 2nd Impeachment Trial Of Donald J. Trump: 5 Things To Know

WASHINGTON, DC — The second impeachment trial of former President Donald J. Trump begins Tuesday, putting the responsibility on the Senate to decide if he should be acquitted or convicted on a charge that he incited the deadly Jan. 6 insurrection at the Capitol.

All 100 senators will act as jurors in the trial, which will feature hours of graphic testimony about the events that left five people dead, sent lawmakers scurrying for safety and spurred a sprawling investigation by the FBI and Justice Department to track down the scores of people who attacked the Capitol.

Trump is only the third U.S. president to be impeached — the first two were Andrew Johnson in 1868 and Bill Clinton in 1998 — and the only one to be impeached twice.

The 45th president was impeached for a second historic time a week after his supporters stormed the Capitol as a joint session of Congress was certifying Joe Biden as the winner of the 2020 presidential election.

The impeachment charge centers primarily on the fiery speech Trump delivered to supporters rallying on the National Mall the morning Congress was to certify the results of an election he falsely claimed had been “stolen” from him. He encouraged his supporters to “fight like hell” for his presidency.

Trump’s first impeachment was in late 2019 on charges of abuse of power and obstruction of Congress. He was acquitted in a Senate trial that took place in early February 2o20.

A conviction requires a two-thirds vote in the Senate, which is split evenly between Democrats and Republicans. Kentucky Sen. Rand Paul forced a vote last week to set aside the trial as unconstitutional because Trump is no longer in office, and won support from 44 other Republicans — seen as a harbinger of Trump’s likely acquittal.

The five Republicans who joined with Democrats to reject Paul’s motion: Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania.

The trial starts at 1 p.m. Eastern Standard Time.

Here are five things to know about the impeachment trial:

1. Is the trial constitutional?

The first order of business Tuesday will be a debate and vote on whether the Constitution allows prosecution of a former president on impeachment charges — an argument that appeals to Republicans who don’t want to vote to convict Trump but don’t want to condone his behavior, either.

The Constitution states: “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Trump’s lawyers and opponents to the trial say the proceeding is unconstitutional because Trump's term has ended, and he can’t be removed from office. However, conservative constitutional lawyer Charles J. Cooper argued in a Sunday Wall Street Journal op-ed that the provision “simply establishes what is known in criminal law as a ‘mandatory minimum’ punishment.”

2. Why does it matter now?

The argument would be “compelling,” Cooper wrote in his Wall Street Journal op-ed, if removal from office was not the only punishment. The Constitution also allows the Senate to vote on whether those convicted of impeachment should be barred from holding future public office.

“Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders,” Cooper wrote.

There is some precedent for trying people who have already left office. Tennessee Sen. William Blount was tried and expelled in 1797, after he left office. Secretary of War William Belknap resigned moments before the House of Representatives was set to vote on his impeachment in 1876; the House went ahead, and Belknap was acquitted on five articles of impeachment by the Senate.

3. Will Trump testify?

Trump, holed up at his Mar-A-Lago club in Florida, has declined the request to testify in his defense. In a letter to the former president, House impeachment manager Rep. Jamie Raskin, a Maryland Democrat and former constitutional law professor at American University, pointed out that Trump’s testimony would be subject to cross-examination.

The eyewitness accounts of the senator-jurors who fled the chamber for safety after the insurrectionists stormed the Capitol will be backed up with videos of the carnage.

4. What is Trump’s defense?

In a trial memo Monday, Trump’s lawyers lobbed a wide-ranging attack against the article of impeachment approved by the House, calling the trial “political theater” and arguing that Trump enjoys the First Amendment right to “express his belief that the election results were suspect.”

The Trump legal team denies he “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government.”

They also argue the proceeding is unconstitutional now that he is out of office.

“While never willing to allow a ‘good crisis’ to go to waste, the Democratic leadership is incapable of understanding that not everything can always be blamed on their political adversaries," the Trump lawyers said in the memo.

House impeachment managers responded in their own document, countering that “his incitement of insurrection against the United States government — which disrupted the peaceful transfer of power — is the most grievous constitutional crime ever committed by a president.”

5. How long will the trial last?

It’s unclear, but it is expected to be significantly shorter than Trump’s first impeachment trial, which lasted nearly three weeks. The case is less complicated, and senators — having witnessed the insurrection at the Capitol — know many of the details.

Opening arguments begin Wednesday at noon local time, with up to 16 hours per side for presentations. At the request of Trump’s legal team, the trial will break Friday evening for the Jewish Sabbath and resume Sunday.

Democrats want to handle the matter quickly so they don’t tie up the Senate and delay confirmation votes on Biden’s Cabinet nominations and debate on the new president’s legislative priorities, including a massive coronavirus relief package.

The Associated Press contributed reporting.