Donald Trump is facing his second impeachment trial before the United States’ Senate – this time for inciting an insurrection. But, with 17 Republican votes required to convict him, is it possible that he will actually be found guilty?
The second Senate impeachment of Donald Trump began yesterday, with Rep. Jamie Raskin making a compelling case for the House, who voted to impeach Trump in January, shortly before he left office. The 45th President was charged with “high crimes and misdemeanours” – you can read the full article of impeachment here – in the wake of the Capitol Riots that saw armed insurrectionists storm Congress on the day that the Senate certified the electoral college votes, confirming President Joe Biden’s election into the White House.
However, even though the House voted by a margin of 232-197 to pass the articles of impeachment, with 10 Republicans joining Democrats to charge Trump for the “incitement of insurrection” is unlikely. It would require 17 Senate Republicans to join every Democrat in order to find Trump guilty with two-thirds of the vote.
Ultimately, Trump’s fate will be determined by three issues:
1. Is impeaching a former President constitutional?
2. Is there enough evidence to prove Trump is guilty of inciting the insurrection?
3. Can Democrats get the votes they need to convict Trump?
What does the constitution say?
CNN’s Zachary Wolf unpacks the questions behind the constitutionality of the impeachment of a former President, which is unprecedented in US history. Effectively, constitutional scholars have been examining four questions:
a) Who can be impeached and for what reasons?
b) What is the Senate’s role?
c) What else does the Constitution say about Presidents and impeachment?
d) What is the penalty for Trump if he’s convicted?
On the subject of who can be impeached, Article 2, Section 4 of 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.”
Republican Senator Rand Paul had argued that the procedure “would try a private citizen and not a president, a vice president or civil officer” and therefore violates the constitution. However, such a precedent does exist where somebody has been impeached after leaving office, such as Abraham Lincoln’s former Secretary of War, Edwin Stanton.
This argument has largely been rendered irrelevant, however, after the Senate ruled that the conviction of a former office bearer is constitutional by a vote of 55-45. Although, this also indicates that a vote to convict lacks the support required – but we’ll get to this later.
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” (Article 1, Section 3 of the United States’ Constitution)
Because Trump is being tried when he’s outside of office, Chief Justice Roberts will not preside over the trial, with the longest serving member of the Senate, Patrick Leahy, (D-Vt) taking his place.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Article 2, Section 3)
The case made in Article 2 appears unclear and, remember, this is the first time a former President is being impeached, so there’s not a lot of material to use as a reference. This also means that a second vote will decide whether to allow Trump from running for office again, and potentially a vote to revoke his $200,000 per year pension.
The evidence presented at the second impeachment of Donald Trump
Is there evidence that Trump did, in fact, incite an insurrection? First, there’s Trump’s months-long refusal to concede that he lost the November 2020 election to Joe Biden. Then the videos released of his speech in front of supporters on the day of the insurrection, his various tweets, including a video of his address to insurrectionist (continuing to cast doubt over the legitimacy of the elections). Thirdly, there’s another in which he said “these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love and in peace. Remember this day forever!”
Finally, there is all the video evidence of the armed insurrectionists breaking into the Capitol building, patrolling the halls of Congress while senators and representatives were stranded inside the chambers of Congress. It also shows images of people dying and/or getting injured, among calls to hang Trump’s “traitor” Vice President, Mike Pence. The video of Trump addressing rioters shortly before they marched on the Capitol is bone chilling. House Representative Jamie Raskin gave a powerful speech on the first day of hearings yesterday, where he presented these various pieces of evidence in a compelling speech that Trump’s own lawyers admitted they were impressed by.
The lawyers representing the former president in the second Senate impeachment of Donald Trump did not have much evidence to present or any compelling arguments to make, saying that the Senate does not have jurisdiction over the former president because he is no longer in office, that the article violates his right to free speech and that the House rushed to issue the article of impeachment. Nothing more (because his culpability is practically unquestionable).
Will there be enough votes?
At the end of the day, the outcome of the second Senate impeachment of Donald Trump relies on the 17 Republican votes required to convict, and the 55-45 split on whether impeachment is constitutional indicates that the necessary votes will not be forthcoming. Only Washington Representative, Dan Newhouse said that “Turning a blind eye to this brutal assault on our Republic is not an option.” However, it is unlikely that Republicans will vote on the merits of the case, but rather in favour of partisanship and to protect themselves against Trump’s threats to support primary challengers to Senators that vote to convict him.
On the other hand, there may be a number of Republican senators that make different political calculations, with a UGov poll showing that 56% of Americans want Trump to be convicted. As more evidence is presented and as Trump’s public presence diminishes, chances are that the public support for Trump could diminish to a very small set of loyalists.
And the Senate votes on Trump’s trial will be on record forever.
The case, the evidence, the legitimacy of the argument to convict Trump is pretty cut and dry here. Garnering support from Republican lawmakers is incredibly unlikely and you’d have to be an optimist of the highest order to believe there will be any outcome other than acquittal here. Failing to do so could have catastrophic outcomes in the future and sets a precedent that, unless the opposition party has a supermajority in the Senate, any president will be above the law.