DemDaily: Constitutionality and Conviction

January 26, 2021

At 7:00pm last night, House Impeachment Managers delivered the Article of Impeachment against former President Donald Trump to the US Senate, formally triggering preparations for the trial before the Upper Chamber, which will commence in two weeks.

On January 13th, one week after the violent assault on the US Capitol, and one week before Joseph Biden was sworn in as the 46th President, the United States House of Representatives impeached President Donald J. Trump for "Incitement of Insurrection." 

Trump, who was impeached on charges of "Abuse of Power" and "Obstruction of Congress" on December 18, 2019, is the only president in US history to be impeached twice, and the only former President to facing trial after leaving office.

House Impeachment Managers deliver the formal article of impeachment to the U.S. Senate Monday (Saul Loeb/AFP)

Incitement of Insurrection
The Article condemns President Trump for "willfully inciting violence against the Government of the United States" with a speech to supporters "that encouraged - and foreseeably resulted in - imminent lawless action at the Capitol."

"Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice President, interfered with the Joint Session's solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts."

In doing so, Trump "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coordinate branch of government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States."

The Process
Under the Constitution, the US House has the sole power to impeach, but "The Senate shall have the sole Power to try all Impeachments."

(Click for Full Text)

Similar to a regular court proceeding, now that the House has essentially indicted the President, the Senate will now conduct a trial to determine whether Trump is guilty and convicted.

The case against Trump will be presented by appointed "House Managers" or prosecutors, before all 100 US Senators, who serve as the jury. The President's lawyers will serve as the defense.

Unlike Trump's 2019 impeachment trial as a sitting President, which, as designated in the Constitution, was presided over by the Chief Justice of the US Supreme Court, Trump's trial as a former President will be presided over by the Senate president pro tempore Patrick Leahy (D-VT), the chamber's ranking Senator.

While the House impeachment required a simple majority vote, it will take a "supermajority" of 67 Senators to vote to convict Donald Trump. That means, if all 50 Democrats vote to convict Trump, 17 Republicans will need to vote for conviction for it to pass.

The Ultimate Goal: If convicted, the Senators may immediately vote, by simple majority, to disqualify Donald J. Trump from holding any future "office of honor, trust or profit under the United States."

The Timeline
January 13th: The US House of Representatives impeaches Donald Trump for "Incitement of Insurrection" of the January 6th seige of the US Capitol.

Rioters Take over Senate Chamber during Capitol Seige. In Senate trial, lawmakers are not only jury, but victims (Luke Mogelson/TheNewYorker)

January 25th: House Managers deliver Article of Impeachment to the US Senate.

January 26th: US Senators, who will serve as jurors, are sworn in for the trial, signing the oath book declaring their intent to serve as impartial jurors.

In an attempt to head off the proceedings, longtime Trump defender and conservative Republican Senator Rand Paul (KY), excercised a procedural "point of order" to call for a vote on the constitutionality of impeaching a former President.

Just five Republicans voted with the Dems to successfully table Rand Paul's motion, including moderates Susan Collins (ME) and Lisa Murkowski (AK), who are often swing votes, as well as Mitt Romney (UT), Ben Sasse (NE) and Pat Toomey (PA), who recently announced he will retire at the end of his term in 2022.

In a speech on the Senate floor, Majority Leader Chuck Schumer said, "The theory that the impeachment of a former official is unconstitutional is ... completely debunked by constitutional scholars from all across the political spectrum."

The Precedent: The Arraignment of General W.W. Belknap in 1876

As precedent, Schumer offered the 1876 corruption trial of President Ulysses Grant's Secretary of War, William Belknap. Despite having tendered his resignation before his impeachment by the House, the House still moved forward and the Senate subsequently ruled that Belknap could be convicted "for acts done as Secretary of War, not withstanding his resignation of said office."

Although the Senate rendered a majority vote against Belknap on all five articles, each vote fell short of the necessary two-thirds and he won acquittal.

February 2nd: Deadline for Trump's response to Article, Deadline for House's pre-trial brief.
February 8th: Deadline for Trump's pre-trial brief, Deadline for House's replication to answer.
February 9th: Deadline for House's pre-trial rebuttal brief, Trial could begin.

Reuters/Ipsos poll, conducted January 20-21, 2021 (MOE +/- 3%) found that 51% of Americans thought the Senate should convict Trump, breaking down largely along party lines.

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Kimberly Scott

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Sources: CBSNews, NBCNews, Politico,

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