Donald Trump’s second impeachment trial: Why it’s likely to fail

The US Senate’s trial on whether Donald Trump incited insurrection will soon commence. Here’s what to expect.

Former US President Donald Trump faces his second impeachment trail in the Senate this week. Picture: AFP

A historic second impeachment trial starting this week (Tuesday afternoon US time) will decide whether former president Donald Trump was responsible for last month’s deadly Capitol siege.

Democrats assert Mr Trump’s call on his supporters gathered at a “Stop the Steal” rally in Washington DC on January 6 to “fight like hell” against a “stolen election” amounted to the impeachable offence of “incitement of insurrection”.

The event marks a series of firsts: Mr Trump is the only president to be impeached twice and the only out-of-office president to face a Senate trial.

Mr Trump and his lawyers deny the charges and, in refusing requests last week that he testify, described the impeachment as “unconstitutional” and a “public relations stunt”.

Former US President Donald Trump is accused by Democrats of inciting insurrection at his Washington DC rally on January 6. Picture: Brendan Smialowski / AFP

They argue impeachment is defined in the US Constitution as a lever to remove someone from public office and therefore cannot be used to try a former president. Legal opinion varies on whether this argument will prevail.

There is historic precedent for former public officials facing such charges, with a former war secretary to President Ulysses Grant, William Belknap, found not guilty of corruption by his Senate impeachment trial in 1876.

The second question of whether or not the trial amounts to a PR stunt is dividing American opinion.

The trial will be the first public airing of evidence surrounding the shocking Capitol attack, which left five people dead and made headlines across the globe.

But despite the laser focus the trial will bring to Mr Trump’s actions in the two months he spent sowing doubt about his election loss to Democrat Joe Biden, it is all but destined to fail to prosecute him.

Mr Trump can only be found guilty by a highly unlikely two-thirds majority verdict, meaning 17 Republicans would need to cross the floor to vote against him.

While 10 House Republicans supported his impeachment three weeks ago, Democrats have not gathered the further numbers necessary to support a guilty verdict and only five Republican Senators last week voted against a party effort to dismiss the trial.

If Mr Trump was found guilty, a further vote could be held with the potential to ban Mr Trump from further public office. This second vote would only need a majority verdict and Democrats hold the balance of power in the Senate (it’s currently 50-50 with Vice President Kamala Harris holding the deciding vote).

Supporters of US President Donald Trump protested outside the US Capitol on January 6. Picture: AFP

It is not clear yet how long the trial will last and how many witnesses will be called. It is scheduled to start Tuesday afternoon in Washington DC.

Democrat leaders are weighing a broad desire to hold Mr Trump accountable and further damage his future political prospects with the urgent need to confront the dual challenges of a stuttering COVID vaccination program and economic relief, as well as freeing up Congress to confirm the full Biden administration.

Democrat House Speaker Nancy Pelosi defended the process last week.

“You cannot go forward until you have justice,” she said.

“If we were not to follow up with this, we might as well remove any penalty from the Constitution of impeachment.”

Senator Chuck Schumer, who is the Senate majority leader, said last week he supported a brisk trial.

“We will move forward with a fair and speedy trial,” he said on Thursday.

“The House managers will present their case. The former president’s counsel will mount a defence, and senators will have to look deep into their consciences and determine if Donald Trump is guilty, and if so, ever qualified again to enjoy any office of honour, trust or profit under the United States.”

Senate leaders from both parties are yet to agree to the rules of the trial.

Mr Trump’s first impeachment trial last year, in which he was acquitted of abuse of power in his dealings with Ukraine, lasted three weeks.