Trump Impeachment Trial Rules Remain a Work in Progress

(Bloomberg) -- The same Senate chamber that was overrun by insurrectionists will become a somber court for Donald Trump’s impeachment trial, as senators weigh whether to make him the first president permanently disqualified from federal office. A year ago, following a trial largely drama-free because its end result was never much in doubt, the Senate acquitted Trump of two articles of impeachment. Much is different this time around since Trump is now an ex-president -- the first to face impeachment proceedings after leaving office. The person wielding the gavel will be different, the Senate may continue to do other work, big-name defense attorneys aren’t lining up to defend Trump, and Republicans are less united in their support of him.

1. When does the Senate trial start?

Opening arguments won’t begin until the week of Feb. 8, under an agreement between the Senate’s Democratic and Republican leaders designed to give Trump more time to prepare a defense and to let lawmakers tend to other business, notably confirming President Joe Biden’s cabinet nominees. Even when the trial commences, there’s a chance that the Senate might continue doing other work.

2. How long will it take?

No one knows, but it likely will be shorter than Trump’s first impeachment trial, which lasted three weeks. Democrats, who are driving the impeachment effort but are also newly empowered in the Senate and White House, have indicated they want a speedy trial in part because they have so much other urgent business to attend to. Also, their case relies in large part on events of public record and what lawmakers themselves experienced that day. It’s also not clear how much time Trump will want to take up in his defense.

3. What’s the charge?

The single article of impeachment passed by the House on Jan. 13, supported by all 222 Democrats present plus 10 Republicans, charges Trump with inciting the Jan. 6 insurrection at the U.S. Capitol that disrupted the certification of Biden’s win. The article of impeachment also notes Trump’s other efforts to overturn the certified election results, including a phone call pressuring Georgia Secretary of State Brad Raffensperger to find just enough votes for him to overturn that state’s election.

4. Who presides over the trial?

Senator Patrick Leahy, a Vermont Democrat. As the senior member of the majority party, he serves as the Senate’s president pro tempore, or “president for the time being,” which means he’s the presiding officer unless Vice President Kamala Harris is in the chair. (The vice president’s official roles include Senate president.) Presiding over Trump’s 2020 impeachment trial was Chief Justice John Roberts, as directed by the U.S. Constitution. But the Senate has some leeway on the never-before-litigated question of who presides over the trial of an ex-president.

5. Is the Senate allowed to do other business?

Senate rules set in 1986 guide the process, but party leaders -- Democrat Chuck Schumer and Republican Mitch McConnell -- have a great deal of flexibility over the details, including how to balance the trial with other national priorities. Biden and many congressional Democrats are pressing for the Senate to use that discretion to split its time to simultaneously act on cabinet confirmations and Biden’s proposed $1.9 trillion virus-relief package. The chamber conducted limited legislative business during the six-week impeachment trial of President Bill Clinton in 1999, according to a Congressional Research Service report.

6. What will a typical trial day look like?

According to Senate rules, each day of the impeachment trial must begin at noon unless otherwise agreed to and run six days a week, breaking only on Sundays. In Clinton’s trial, and Trump’s first trial, House managers and the president’s defense attorneys each were given up to 24 hours of floor time to make opening arguments -- over the course of four days in Clinton’s case, three days in Trump’s. Senators then were granted 16 hours to ask questions of the teams, posed in written notes and read aloud by the chief justice.

7. Who will present the case for the House?

The House managers who function as prosecutors will be led by Maryland Representative Jamie Raskin, who is a member of the House Judiciary Committee and a professor of constitutional law. Other managers include Diana DeGette of Colorado, David Cicilline of Rhode Island, Joaquin Castro of Texas, Eric Swalwell and Ted Lieu of California, Stacey Plaskett of the U.S. Virgin Islands and Madeleine Dean of Pennsylvania. Outside lawyers Barry Berke and Joshua Matz, who helped present the House’s case against Trump in his first trial, have been hired to help with the second one.

8. Who will defend Trump?

Trump has hired Butch Bowers, a South Carolina attorney recommended to him by Senator Lindsey Graham. Though not nationally known, Bowers has worked on some high-profile political matters. He helped Mark Sanford, when he was South Carolina governor, stave off an impeachment effort in the state legislature after Sanford admitted being in Argentina with his mistress, not hiking the Appalachian Trail, as his staff had claimed. Trump, at his first impeachment trial, had a defense team of notable lawyers including former Florida Attorney General Pam Bondi, former independent counsels Ken Starr and Robert Ray, and retired Harvard Law Professor Alan Dershowitz.

9. Will there be witnesses?

In last year’s Trump trial, the Senate’s Republican majority rejected attempts by Democrats to call witnesses to support their case that Trump had abused the power of his office in pressuring Ukraine’s president to dig up dirt on Biden, who was then emerging as a likely Trump political challenger. In Clinton’s impeachment trial, the Republican-controlled Senate voted to hear testimony from Monica Lewinsky, the White House intern who had a sexual relationship with the president, as well as testimony from two other Clinton associates. Democrats haven’t yet said what witnesses, if any, they want to offer testimony in the upcoming trial. No witnesses were called to testify in the House, where Democrats made the case that Trump had essentially incited and supported insurrection in public view.

10. What do the senators do?

At the start of the trial, each senator swears an oath “to do impartial justice.” Then they mostly sit and listen, a departure from the normal way the Senate floor operates. When House managers present the impeachment article, the sergeant-at-arms is required to read a proclamation: “All persons are commanded to keep silence, on pain of imprisonment.” On a normal day in the Senate, members often address an empty chamber, their comments primarily geared for the C-Span camera. During Trump’s trial last year, senators sat at their desks through long nights of impeachment proceedings. To make sure they paid attention, they were forbidden from carrying phones and other electronic devices into the chamber. Large cubbyholes were installed outside the chamber and in cloakrooms to store electronics. It’s not clear if the Senate will make any accommodations for social distancing. The pandemic had not yet spread in the U.S. by the time of Trump’s impeachment trial in 2020.

11. What are the prospects for a conviction?

Low. No president has ever been convicted, and it would take a two-thirds vote of senators present to do so. That means that if all 100 senators vote, at least 17 of Trump’s fellow Republicans would have to turn against him, risking a backlash from his supporters. McConnell, as Republican leader, will be key. He has said that the mob that stormed the Capitol was “provoked by the president” but hasn’t gone so far as to say he would vote to convict. While a handful of Senate Republicans have sharply criticized Trump or said his behavior is impeachable, many others argue a conviction would further divide the country or even be unconstitutional since Trump is no longer in office.

12. Is it constitutional to try former officials?

The legality of a Senate impeachment trial after a president has left office is an open question, never tested in the courts. A sparse but consistent line of non-presidential impeachments in the past suggests the Senate does have legal authority to put Trump on trial even after his term has ended. A number of Republican senators have raised the question of constitutionality, which may become part of Trump’s defense.

13. What’s the point of a Senate trial now that Trump is out of office?

Trump has made noises about running for the presidency again in 2024, a prospect that alarms many Democrats and complicates the ambitions of other Republicans who envision themselves in the Oval Office. Should he be convicted (this time), a majority of senators could also vote to disqualify him from ever serving again in federal office. If convicted, Trump also could lose many of the benefits afforded to former presidents, which, under a 1958 act, include a lifetime pension, an annual travel budget and funding for an office and staff. Lifetime protection by the Secret Service is one benefit that would not be affected.

14. Has disqualification ever happened?

The House has initiated impeachment proceedings more than 60 times, according to its historian’s office, and voted to impeach 20 individuals -- 15 federal judges, one senator, one cabinet secretary and three presidents (Andrew Johnson in 1868, Clinton in 1998 and Trump in 2019). Of that group, eight judges were convicted and removed from office by the Senate. Three of the judges were also disqualified from holding office again. The last instance was in 2010, involving Thomas Porteous, a federal judge in New Orleans whom the Senate found guilty of corruption and making false statements, including during his confirmation hearings.

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