Before US senators hear arguments about Donald Trump’s role in last month’s mob attack on the US Capitol, his second impeachment trial will begin on Tuesday with a debate about whether it is constitutional to judge a former president at all.
Trump was impeached by the House of Representatives, which charged him with inciting an insurrection in the January 6 riot that interrupted the certification of Joe Biden’s victory in the presidential election and left five people dead, including a Capitol police officer.
Ten Republicans sided with Democrats in the House vote on January 13, making Trump the first president to be impeached twice. With Biden having been inaugurated on January 20, Trump will now become the first president to be tried after leaving office.
Tuesday’s proceeding will include up to four hours of debate on whether the trial is constitutional, followed by a majority vote on the issue.
Republican lawmakers and Trump’s legal team have argued the Senate cannot try a former president. Last month all but five of the 50 Senate Republicans backed a motion questioning whether the trial was constitutional.
But more than 150 legal scholars, including the co-founder and several members of the conservative Federalist Society, asserted in an open letter last month that the US constitution “permits the impeachment, conviction and disqualification of former officers, including presidents”.
The Senate’s jurisdiction in the matter will almost certainly be upheld, given the upper chamber of Congress is split, 50-50, between Democrats and Republicans, with Kamala Harris, the US vice-president, able to cast a tiebreaking vote.
The trial will shift on Wednesday to opening arguments from the House impeachment managers — Democratic lawmakers who will act as prosecutors.
Led by Representative Jamie Raskin of Maryland, the impeachment managers said in a filing on Monday that the “evidence of President Trump’s conduct is overwhelming”.
“He has no valid excuse or defence for his actions,” they wrote. “And his efforts to escape accountability are entirely unavailing.”
Hours before the Capitol Hill siege, Trump told his supporters on the National Mall: “If you don’t fight like hell, you’re not going to have a country any more.”
This week’s trial comes just a year after Trump was exonerated in another Senate trial. He was impeached in late 2019 over his efforts to get the Ukrainian president to dig up dirt on Biden and his family. Just one Republican — Mitt Romney of Utah — voted to convict in that trial.
Trump is again likely to be exonerated, as conviction requires the support of two-thirds of the chamber, or 17 Republicans given the current balance of power, assuming all 100 senators vote. If Trump is convicted, he could be banned from public life by a subsequent simple majority vote.
The rules for the trial were set out on Monday by Chuck Schumer, the Senate’s top Democrat, after he reached a deal with his Republican counterpart, Mitch McConnell.
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