Trump impeachment: When will the Senate vote and how will the trial work?

Trump’s second trial will start the week of February 8, after the article of impeachment was sent to the Senate.

Battle lines are drawn at the Capitol again (main picture) as Speaker of the House Nancy Pelosi, top left, sent over the article of impeachment to the Senate on Monday evening local time, triggering the start of the dormer president Donald Trump’s second impeachment trial. Pictures: AFP

Donald Trump’s second impeachment trial will start the week of February 8, after the article of impeachment was sent to the Senate this morning (AEDT).

Senate Majority Leader Chuck Schumer said the trial’s start was being delayed for two weeks while the Senate confirms some of President Biden’s nominees and works on a new Covid-aid package.

The announcement marked an agreement with Republicans on the pre-trial phase of the impeachment proceedings.

The House of Representatives impeached then President Donald Trump a second time, for his role in inciting the capitol riots on Jan. 6, just over a year after it first impeached him for pressing Ukraine to announce investigations that would have aided him politically. The vote was 232 to 197, with all Democrats joined by 10 Republicans, in a House chamber guarded by National Guard troops stationed throughout the Capitol and its grounds.

Speaker Nancy Pelosi sent over the article of impeachment to the Senate on Monday evening local time, triggering the start of the impeachment trial. While senators will be sworn in as jurors this week, Majority Leader Chuck Schumer and Minority Leader Mitch McConnell have agreed to start the trial the week of Feb. 8 to allow both sides more time to prepare. Mr Trump has hired at least one lawyer to defend him, South Carolina-based lawyer Butch Bowers, while Mrs Pelosi has named a team of House impeachment managers. Here’s how the unprecedented process is playing out.

What does the Constitution say about a second impeachment?

The Constitution gives broad leeway to the House of Representatives to handle the impeachment process. There are no limits on the number of times someone may be impeached, though Mr Trump is the first person ever to be impeached more than once.

What are the consequences of a second impeachment?

Because President Biden has already taken office, the practical effects of the second impeachment by the House are mostly symbolic. The Senate, if it successfully convicts Mr Trump, can’t remove him from an office he doesn’t hold.

But the Senate could immediately hold a follow-up vote, subject only to a simple majority, to ban Mr Trump — who has weighed another presidential run in 2024 — from ever seeking office again. Those are the only punishments the Senate can consider as part of an impeachment conviction. A Senate conviction after Mr Trump has left office wouldn’t affect his postpresidential benefits, which include a pension and Secret Service protection.

Nancy Pelosi has delivered the article of impeachment to the Senate, kicking off Donald Trump’s second impeachment. Picture: AFP.

Can a president be impeached after laving office?

There is no precedent for a president being impeached or convicted after leaving office. President Richard M. Nixon resigned rather than go through impeachment proceedings, and the matter was dropped once he was out of office.

Both the House and Senate did proceed once with impeachment and trial for a resigned cabinet official, President Ulysses S. Grant’s War Secretary William Belknap. Mr Belknap delivered his resignation to the White House minutes before being impeached for corruption on March 2, 1876.

But the House still sent over the articles to the Senate, and his trial began the following month. “House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office,” according to the Senate Historian. Mr Belknap was present for his trial, and while a majority of senators voted for conviction, he was acquitted because there wasn’t a two-thirds majority.

Many Republicans, including Sens. Lindsey Graham and Tom Cotton, are gravitating toward a technical argument: The Senate lacks jurisdiction to try Mr Trump after he leaves office, they maintain, because he will be a private citizen. That could allow the Republicans to thread a political needle by not having to defend his conduct but still voting against a conviction.

A recent report from the Congressional Research Service, the public-policy research arm of Congress, concludes that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried.

National Guard members at the Capitol. Picture; Getty Images.

Could Trump have been removed instead via the 14th Amendment, for instigating an insurrection?

Section Three of the 14th Amendment dictates that no state or federal officeholder, from the legislature to the presidency, “shall have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” Section Five of the amendment also provides an enforcement mechanism: “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” meaning that only votes in Congress are required to determine whether an officeholder fits the criteria for disqualification from office.

This section of the amendment was written to force the South’s power structure after the Civil War to accept the Reconstruction amendments to the Constitution — including the abolition of slavery and grant of suffrage to Black men. Only those who hadn’t engaged in insurrection as members of the Confederacy could hold office. “The Amendment made virtually the entire political leadership of the South ineligible for office,” wrote Columbia University Professor Eric Foner in his landmark history, “Reconstruction.”

But enforcement of the provision has a rocky and inconclusive history. In 1871, the Senate Committee on Privileges and Elections issued a report on Senator-elect Zebulon Vance of North Carolina, determining that his service to the Confederacy disqualified him from office.

By 1872, the political tides shifted, and Congress, with the support of President Ulysses S. Grant, voted to provide a partial amnesty to former Confederates, allowing many of them to seek office again. The amnesty was further broadened in 1898, and again in the 1970s during debates over amnesty for Vietnam War draft evaders. “The purpose of Section Three was erased from the Constitution less than a generation after ratification,” wrote Indiana University law professor Gerard N. Magliocca in a December 2020 analysis.