Second impeachment trial of Donald Trump
The second impeachment trial of Donald Trump, the 45th president of the United States, began on February 9, 2021, and concluded with his acquittal on February 13. Trump had been impeached for the second time by the House of Representatives on January 13, 2021. The House adopted one article of impeachment against Trump: incitement of insurrection. He is the only U.S. president and only federal official to be impeached twice. He was impeached by the House seven days prior to the expiration of his term and the inauguration of Joe Biden. Because he left office before the trial, this was the first impeachment trial of a former president. The article of impeachment addressed Trump's attempts to overturn the 2020 presidential election results and stated that Trump incited the attack on the Capitol in Washington, D.C., while Congress was convened to count the electoral votes and certify the victory of Joe Biden and Kamala Harris.
At the beginning of the trial, Senator Rand Paul forced a vote to dismiss the impeachment charge on the basis that it was unconstitutional to try a former president, arguing that impeachment only applies to current federal officers and that the punishment of removal from office was moot under the circumstances. Supporters of proceeding with the trial argued that the Constitution also permits disqualification from holding future office, which the House had requested in its article of impeachment. The motion was defeated in a 55–45 vote, with all Democrats, both independents, and five Republicans voting against the motion. This was the first time that a former president had been tried, and only the second time the Senate tried someone who had already left office, after Secretary of War William W. Belknap in 1876. Jamie Raskin was the lead impeachment manager and the primary authoralong with Representative David Cicilline and Representative Ted Lieuof the impeachment article, which charged Trump with inciting an insurrection by sparking the Capitol attack. Joaquin Castro, Eric Swalwell, Madeleine Dean, and Stacey Plaskett also assisted in delivering the oral arguments for conviction.
Trump's defense was led by Michael van der Veen, a personal injury lawyer from Philadelphia, along with David Schoen and Bruce Castor. Van der Veen's style and substance during the trial drew ridicule and criticism from many, with gasps and laughter in the Senate when he stated that he would seek to depose at least 100 people at his Philadelphia office, including Speaker of the House of Representatives Nancy Pelosi and Vice President Kamala Harris. Trump had originally hired Butch Bowers and Deborah Barbier to represent him, but they quit along with three other lawyers after "the former president wanted the lawyers representing him to focus on his allegations of mass election fraud" and his false claim that "the election was stolen from him."
At the conclusion of the trial, the Senate voted 57–43 to convict Trump of inciting insurrection, falling 10 votes short of the two-thirds majority required by the Constitution, and Trump was therefore acquitted. Seven Republican senators joined all Democratic and independent senators in voting to convict Trump, the largest bipartisan vote for an impeachment conviction of a U.S. president or former U.S. president. After the vote on the acquittal, Mitch McConnell said, "There's no question that President Trump is practically and morally responsible for provoking the events of the day." but he voted against conviction due to his interpretation of the United States Constitution.
Background
Under the U.S. Constitution, the House has the sole power of impeachment, and after that action has been taken, the Senate has "the sole Power to try all Impeachments". Trump was the third U.S. president to face a Senate impeachment trial, after Andrew Johnson and Bill Clinton. Trump is the only federal official to be impeached twice.The Senate impeachment trial procedures are set forth under rules adopted in 1986, although specific rules are adopted for each trial, with the Senate majority leader exercising considerable power in setting the procedures.
House impeachment
On January 11, 2021, Representatives David Cicilline, Jamie Raskin, and Ted Lieu introduced an article of impeachment against Trump, charging him with "incitement of insurrection" in urging his supporters to march on the Capitol building. The article stated that Trump had committed high crimes and misdemeanors by making several statements that "encouragedand foreseeably resulted inlawless action" that interfered with Congress' constitutional duty to certify the election. It said he had "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government" in a way that rendered him "a threat to national security, democracy, and the Constitution". A total of 218 of the 222 House Democrats co-sponsored the article of impeachment, assuring its passage.The House passed the article of impeachment on January 13, 2021, by a 232–197 vote. All 222 Democrats voted to impeach, joined by 10 Republicans. Four Republicans did not vote, and the other 197 Republicans voted no.
Trial delay and planning
In the days following Trump's second impeachment, then-Senate Majority Leader Mitch McConnell argued that, because the Senate was in pro forma sessions until January 19, it could not take on any business without the unanimous consent of its members. According to Senate rules, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. Had the article of impeachment been immediately transmitted to the Senate, Trump's trial thus would have begun on Inauguration Day, after Joe Biden was sworn in.Then-Senate Minority Leader Chuck Schumer called on McConnell to bring the Senate back into session immediately after the House transmitted the article of impeachment, and also to advance the confirmation process for Biden's cabinet nominees so that the incoming administration's team would be in place on day one. Some, including House Majority Whip Jim Clyburn, initially suggested that the House might transmit the article of impeachment to the Senate at a later date, giving the Senate time to consider Biden's legislative program and confirm his nominees. However, House Democrats opposed a delay, stating that Trump remained a danger while he was in office, and House Majority Leader Steny Hoyer said on January 14 that the article of impeachment would be transmitted to the Senate without delay.
After the House impeached Trump, President-elect Biden stated, "I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation." Biden said his priority is enacting a new stimulus bill and rebuilding the economy. He discussed with McConnell the possibility of "bifurcating" the Senate calendar, allowing the trial to proceed while also allowing other business to move forward without delay. Under this plan, the Senate could split its days between the trial and other business, rather than having all its time consumed by the trial. Former Senate Parliamentarian Alan Frumin said that Senate rules would permit such a course. McConnell told Biden that he would consult with the Senate parliamentarian. Schumer, who would replace McConnell as Senate majority leader, said that a Senate trial could begin immediately.
Law professor Ronald Krotoszynski wrote that the Senate could speed up impeachment proceedings through a process akin to civil summary judgment. This would be permissible under the Constitution, which specifies that the Senate must "try" articles of impeachment and vote to convict by a two-thirds majority, but allows the Senate to set its own trial rules or procedures, as reaffirmed by the U.S. Supreme Court in Nixon v. United States.
On January 22, 2021, it was announced that House Speaker Nancy Pelosi would transfer the article of impeachment to the Senate on January 25, with the Senate trial expected to be held during the week of February 8.
Impeachment trial of a former president
A Congressional Research Service report concluded "that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried." Ahead of the trial, 150 legal scholars from across the political spectrum published a letter affirming "that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents." Law professors Laurence H. Tribe and Stephen I. Vladeck argued that because removal from office is only one of the two possible consequences of a conviction, the purpose of the trial is not nullified if the impeached person no longer holds public office. Gregg Nunziata, a former Republican lawyer for the Senate Judiciary Committee, similarly noted that because impeachment power includes the power to disqualify the person from federal office for life, allowing officeholders to evade this by resigning would render "this important punishment... a nullity." Leading conservative lawyer Charles J. Cooper agreed, writing in the Wall Street Journal the weekend before the trial that there is no Constitutional prohibition against a post-presidency trial. Cardozo School of Law constitutional law professor Kate Shaw argued that "drafting history, impeachment practice, and basic constitutional design all point clearly in favor of the constitutionality of trying an ex-president." Legal scholar Brian C. Kalt, who has published research about late impeachments, stated, "In multiple cases, the House and Senate have proceeded as though they can impeach and try people who have already left office, and in one case the Senate took a specific vote to that effect."There is precedent for impeaching and trying a federal official who already left office. In 1797, the House impeached Senator William Blount for conspiracy. The Senate tried him, even though it had already expelled him. In 1876, Secretary of War William W. Belknap resigned hours before the House voted for his impeachment on charges relating to his role in the trader post scandal, and the Senate proceeded to hold a trial, ruling by a vote of 37–29 that it did have jurisdiction after a challenge by Belknap's attorneys.
Before the trial began, most Republicans in the Senate argued that the Senate lacks the constitutional authority to conduct an impeachment trial of a former president. This argument was also made by former federal appellate judge J. Michael Luttig, as well as one of Trump's lawyers at his first impeachment trial, Harvard Law School professor emeritus Alan Dershowitz, and law professor Jonathan Turley, who testified in Trump's favor at his first trial.
Between the House impeachment vote and the beginning of the trial, former governor of Wisconsin Scott Walker claimed, "The U.S. Senate cannot convict a former President," which was Mostly False according to PolitiFact, which found 2 pieces of evidence in favor of the claim and 5 pieces of evidence against.