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What to know about former President Donald Trump’s 2nd impeachment trial

Former President Donald Trump was impeached for ‘incitement of insurrection,’ but his defense attorneys say it was free speech

Former President Donald Trump’s second impeachment trial began Tuesday, Feb. 9, 2021. House impeachment managers said Trump incited the deadly Capitol riot on Jan. 6, while his defense team argues the trial in unconstitutional. 
Photo Illustration by Alex Cochran

Former President Donald Trump’s historic second impeachment trial began Tuesday.

Here are the details you need to know about the Senate trial, like who will preside over the proceedings, why the House says Trump should be convicted and how the former president’s impeachment lawyers will try to defend the twice-impeached Republican:

How we got here

The U.S. House of Representatives impeached then-President Trump on Jan. 13 — a week after the deadly Washington, D.C., riot — and alleged the president instigated thousands of his supporters to storm the Capitol while Congress was confirming now-President Joe Biden’s 2020 Electoral College victory.

Before the riot on Jan. 6, Trump hosted a rally of his supporters near the White House and told them, baselessly, that the election had been stolen and that “we will never give up, we will never concede,” according to a transcript of the speech published by The Wall Street Journal.

“And we’re going to have to fight much harder,” Trump said before adding that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Near the end of his speech, Trump then told his supporters “we fight, we fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.” He then directed them them to walk down Pennsylvania Avenue to try and give “weak” Republicans “the kind of pride and boldness that they need to take back our country.”

The House impeachment vote was 232-197, with 10 House Republicans joining all the House Democrats to charge Trump with “incitement of insurrection.”

Trump’s defense team, and a large number of Senate Republicans have since said they believe the impeach trial of a former president is unconstitutional, a defense that hasn’t found traction with a majority of the Senate.

In this Wednesday, Jan. 20, 2021, file photo, President Donald Trump waves as he boards Marine One on the South Lawn of the White House, in Washington, en route to his Mar-a-Lago Florida Resort. Former President Trump has named two lawyers to his impeachment defense team, one day after it was revealed that the former president had parted ways with an earlier set of attorneys.
Alex Brandon, Associated Press

On Jan. 26, five Senate Republicans — including Utah’s Sen. Mitt Romney — joined Senate Democrats to reject the unconstitutionality defense in a 55-45 Senate vote, thus moving the trial forward.

But the vote signaled there is most likely not enough support among GOP senators to convict Trump. Seventeen Republicans and the entire caucus of Democrats would be needed to cast a convicting two-thirds vote.

A spokesman for the former president said last week that Trump “will not testify in an unconstitutional proceeding,” Politico reported, but it is possible the Senate could subpoena Trump to appear.

The trial

Senate President Pro Tempore Patrick Leahy, D-VT, as the most senior member of the Senate, will preside over the impeachment trial that will take place in the Senate chamber. The Supreme Court’s chief justice would preside over the trail of a sitting president, The Hill reported.

“I consider holding the office of the president pro tempore and the responsibilities that come with it to be one of the highest honors and most serious responsibilities of my career,” Leahy said in a statement about his additional duty in the Senate. “When I preside over the impeachment trial of former President Donald Trump, I will not waver from my constitutional and sworn obligations to administer the trial with fairness, in accordance with the Constitution and the laws.”

Senators were sworn in as jurors on Jan. 26, and will have an opportunity to question House impeachment managers and Trump’s defense team after both sides present their opening arguments. The trial, which some news reports say could wrap up by week’s end, will conclude with senators voting whether to convict the former president.

If convicted, the Senate could hold a separate vote on whether to ban Trump from holding future federal office.

House impeachment managers and their charge

Congressman Jamie Raskin, of Maryland, will be the lead impeachment manager and will be supported by eight other House Democrats:

  • Rep. Diana DeGette, of Colorado.
  • Rep. David Cicilline, of Rhode Island.
  • Rep. Joaquin Castro, of Texas.
  • Rep. Eric Swalwell, of California.
  • Rep. Ted Lieu, of California.
  • Rep. Stacey Plaskett, of U.S. Virgin Islands.
  • Rep. Madeleine Dean, of Pennsylvania.
  • Rep. Joe Neguse, of Colorado.

The impeachment managers allege that Trump aimed his supporters “like a loaded cannon” toward the Capitol on Jan. 6 and that the former president had “endangered our Republic and inflicted deep and lasting wounds on our Nation.”

They also wrote that Trump’s “conduct endangered the life of every single member of Congress, jeopardized the peaceful transition of power and line of succession and compromised our national security.”

“This is precisely the sort of constitutional offense that warrants disqualification from federal office,” they added.

Trump’s defense

Attorneys Bruce Castor Jr. and David Schoen will represent Trump during the trial. They are both familiar with the national spotlight and joined the impeachment defense team a little more than a week ago.

Castor is a Republican and former Montgomery County, Pennsylvania, district attorney, while Schoen is a defense attorney who has represented high-profile clients like longtime Trump adviser Roger Stone.

In a legal brief filed last week, Trump’s defense team declared the impeachment proceedings unconstitutional — interpreting that “the constitutional provision (of impeachment) requires that a person actually hold office to be impeached” — because Trump is now a private citizen.

They don’t dispute what Trump told supporters before they marched to the Capitol, but they contend that Trump was within his First Amendment rights of free speech to “express his belief that the election results were suspect.” His defense blame’s state coronavirus election safeguards as reason for doubt, and that there is “insufficient evidence” to determine if Trump’s claims to election fraud were baseless.

People watch as Marine One with President Donald Trump on board departs on the South Lawn of the White House, Wednesday, Jan. 20, 2021, in Washington. On Friday, Jan. 22, The Associated Press reported on stories circulating online incorrectly claiming an Army band played ‘Hit the Road Jack’ outside the White House before former President Donald Trump departed Washington.
Alex Brandon, Associated Press