The second impeachment trial of former President Donald Trump will begin on Tuesday.
Mandel Ngan/Getty Images
The historic second impeachment trial of former President Donald Trump is set to begin in the US Senate in less than 24 hours, with both sides presenting their pretrial briefs Monday and each side lobbing attacks at the other.
Trump’s legal team argued against the House’s “outlandish” charges, calling the impeachment trial a “brazen political act.” Trump’s defense denies the former president’s rally speech on Jan. 6 encouraged “an insurrection, a riot, criminal action or any acts of physical violence” and that it is fully protected by the First Amendment right to free speech. Trump’s lawyers further maintain that the former president should not be tried since he is no longer in office.
In response, the House of Representatives impeachment trial managers said Trump’s speech was “a frontal assault on the First Amendment,” in their pretrial brief published later Monday, and argue the intent of the Constitution is to ensure presidents stand trial for any constitutional crimes committed while under the oath of office.
“When President Trump demanded that the armed, angry crowd at his Save America Rally ‘fight like hell’ or ‘you’re not going to have a country anymore,’ he wasn’t urging them to form political action committees,” the brief alleges. “This is not a case about protected speech. The House did not impeach President Trump because he expressed an unpopular political opinion. It impeached him because he willfully incited violent insurrection against the government.”
The House prosecutors also allege Trump continued inciting violence throughout the course of Jan. 6, such as “issuing a tweet attacking the vice president while insurrectionists sought to assassinate him.”
Trump faces a single article of impeachment that accuses him of incitement of insurrection in regard to the Jan. 6 riot at the US Capitol, which left five people dead, including a Capitol Police officer. In a speech that day in front of the White House, Trump urged supporters to march to the Capitol.
The siege of the Capitol building sought to overturn the 2020 election results and halt the process of confirming Biden’s win in the Electoral College. Biden was confirmed after the riot and later inaugurated on Jan. 20. In a historic moment, 10 House Republicans broke with their party to vote in favor of impeachment.
To convict Trump, 17 Republicans would need to vote in favor, along with the 48 Democrats and two independents, to reach a two-thirds supermajority. Just five Republicans voted with Senate Democrats against a motion on Jan. 27 to declare the trial unconstitutional.
President Biden has said he supports the trial. Trump “was impeached by the House and it has to move forward, otherwise it would come off as farcical what this was all about,” Biden said, adding that abandoning the trial would “make a mockery of the system.”
We’ll explain what we know about how the impeachment trial could progress, what it takes to convict or acquit, what’s at stake, and where the situation stands now. This story continues to be updated with new information.
Read more: The 14th Amendment is the cornerstone of Trump’s impeachment
Current schedule of Trump’s impeachment trial
The article of impeachment was presented to the Senate on Jan. 25, with Senators sworn in on Jan. 26. Trump’s answer to article of impeachment was given on Feb. 2, followed by the pretrial briefs from both sides on Feb. 8.
This is how the trial will unfold:
- Feb. 9: There will be four hours of debate equally divided between prosecutors and defense on whether the trial is constitutional, followed by a vote needing a simply majority to proceed
- Feb. 10, 12:00 p.m. ET: House of Representatives will begin arguing its case; prosecutors and defense will have up to 16 hours each to present their arguments, with neither side permitted to present for more than eight hours per day
- Feb. 12, 5:00 p.m. ET: The trial will break through Saturday
- Feb. 14, 2:00 p.m. ET: The trial will reconvene Sunday
- Arguments will be followed by four hours for senators’ questions
- If the House impeachment managers want to call witnesses or subpoena documents, there will be two hours of debate by each side followed by a Senate vote on whether to allow this
- If witnesses are called, there will be enough time given to depose them, and for each party to complete discovery before testimony is given
- Once witnesses and evidence is dealt with, there will be four hours of closing arguments divided evenly between the prosecutors and defense
- Lastly will come the vote on conviction or acquittal, for which a two-thirds majority is required
Read: Trump impeachment trial starts Feb. 9: How and when to watch
Will Trump testify? Will anyone?
The House’s lead impeachment manager, Rep. Jamie Raskin of Maryland, last week sent a letter to Trump’s legal team asking that the former president testify under oath and submit to cross-examination before or during the trial. Trump lawyer Bruce Castor called the request a “publicity stunt” and said his client wouldn’t provide testimony.
Because Trump “immediately rejected” the opportunity to testify in person, the House will allege this decision “supports a strong adverse inference regarding [his] actions and inaction on January 6,” the House pretrial brief says.
During the trial, it’s expected that video “evidence” will be used instead of witness testimony, as well as other evidence from social media and images shared across the internet.
What would happen if Trump is convicted or acquitted
If the former president is convicted in the Senate, there will be an additional vote to bar him from running again (per the US Constitution Article 1, Section 3), which would prevent a possible presidential run in 2024. This vote would only require a simple majority, where Vice President Kamala Harris serving as president of the Senate would cast a tie-breaking vote if required.
Trump could also be disqualified from the benefits given to former presidents by the Post Presidents Act, including a Secret Service security detail, pension and yearly travel allowance.
According to the US Constitution, impeached presidents also can’t be pardoned.
If acquitted, Trump would have access to all the benefits of a former US president, including the option to run for public office.
More background: Trump’s second Senate impeachment trial: Here’s what could happen
What could happen during Trump’s impeachment trial?
The US Constitution lays out clear guidelines for impeaching a sitting president and other officers for “treason, bribery or other high crimes and misdemeanors.” Trump’s trial is an unusual case, however. With his second impeachment, Trump, who as of Jan. 20 is a private citizen, is the first president to be impeached twice and the first to be tried after leaving office.
The Supreme Court Chief Justice would normally preside over the impeachment trial of a president. But because it’s not a trial of a sitting president, it will instead be presided over by Leahy, the new Senate President Pro Tempore, who as a senator is also still expected to be able to vote in the trial, too.
The House will prosecute the case, and the Senate will sit as jury and ultimately vote to convict or acquit.
To convict Trump, 67 senators — or two-thirds of the Senate — must vote in favor. Following Biden’s inauguration, the Senate is now made up of 48 Democrats, two independents who caucus with Democrats and 50 Republicans, for an even 50-50 split.
Why was Trump impeached in 2019?
Trump was impeached in December 2019 by the House, but the Republican-majority Senate acquitted him at the beginning of 2020.
His first impeachment involved articles accusing Trump of abusing power and obstructing Congress. The issue was Trump’s dealings with Ukraine, including a July 2019 phone call in which he appeared to be using US military aid as a bargaining chip to pressure Ukraine into investigating alleged ties between his political opponent Biden, Biden’s son Hunter and a Ukrainian gas company. The articles also charged Trump with interfering with a House inquiry into the Ukraine matter.