An acquittal is almost certain for Trump so instead, politicians are using the trial to set up future political fights.
The historic second impeachment trial of former President Donald Trump gets under way on Tuesday as the US Senate hears arguments about whether he is guilty of inciting last month’s US Capitol riot.
Never before in US history has a president been impeached twice. Also, never before has a president been convicted in a Senate impeachment trial, and the outcome of this trial is not expected to have a different result.
That being said, House impeachment managers, serving as the prosecution in the trial, will try to convince senators, serving as the jury, that Trump’s actions and language were an “incitement of insurrection”, a “high crime” in their estimation as laid out in the US Constitution.
Trump’s legal team, serving as the defence, will make two key arguments in response: the trial of a former president is unconstitutional and, also, Trump’s speech prior to the riot was not an incitement and was free speech protected by the constitution.
How long will the trial last?
It is expected to last about a week. Tuesday will feature a debate and vote on whether the trial itself is constitutional. Wednesday and Thursday will be the House impeachment managers’ days for up to 16 hours of arguments. Trump’s defence team is expected to make their arguments over up to 16 hours on Friday and Saturday. And next week, senators may have questions, followed by a vote on whether to convict. It is not expected that either side will call witnesses, which will speed up the pace of the trial.
What are the chances Trump will be convicted?
Conventional wisdom has it that there is little chance Trump will be found guilty by the Senate. Two-thirds – or 67 – of the 100 senators would have to vote to convict and currently the Senate is made up of 50 Democrats and 50 Republicans. Based on public statements and a recent vote on the constitutionality of the trial where only five Republicans voted with Democrats, it does not appear that there are anywhere near 17 Republicans who would join with the 50 Democrats to convict Trump.
What if he is convicted?
Conviction in an impeachment trial results in an automatic removal from office. In this specific case, however, since Trump is already out of office, the conviction would be largely symbolic. Democrats have insisted that Trump should be held accountable after the violence on January 6 and they argue that not convicting, even if it is symbolic, would give future presidents a free pass to commit “high crimes and misdemeanors” the impeachment standard laid out in the US Constitution.
If the Senate does convict Trump, they could also decide to hold a subsequent, more than symbolic vote on barring him from holding future office. That would only require a simple majority vote.
What if Trump is acquitted?
It is worth noting that Trump was acquitted last year in his first impeachment trial and, even though it was a seriously negative mark on the historic record of his presidency, he aimed to use it to his political advantage, arguing to his base that it was a political “witch hunt”. In fact, he has called this impeachment “a continuation of the witch hunt”, and polling, at least among Republicans, shows that many Americans agree with him. It is expected Trump will re-emerge following the trial and, again, aim to use it to his advantage, while attacking Democrats and any Republicans that opposed him during the impeachment process.
Democrats in Congress could try to censure Trump – a congressional stamp of disapproval, essentially – or attempt to invoke a clause in the 14th Amendment, which would bar him from holding future federal office.