Donald Trump has made history ... as the only American politician to be indicted twice for breaking the law while in office, as well as in the White House and as president.
The House of Representatives voted on Wednesday for Trump to face a second
impeachment
, a political trial provided for in the Constitution for cases in which it is considered that there was "treason, bribery or other crimes and serious misconduct."
The first trial against Trump was opened in December 2019, considering the representatives that he committed abuse of power and obstructed justice for pressuring Ukraine to investigate Joe Biden, now president-elect and then a possible candidate.
The Senate, then a Republican majority, exempted Trump in February 2020.
This second trial will be for
"inciting an insurrection"
by encouraging his followers before they stormed and vandalized the Capitol.
He is accused of "threatening the integrity of the democratic system, interfering with the peaceful transition of power and endangering another branch of government."
But there is a
lot of uncertainty about this new process, due in part to the fact that it is unprecedented:
never in history has someone been subjected to two
impeachments
, but also Trump has only a few days left in office.
[The heroic act of a policeman who averted a major disaster during the attack on the Capitol]
There are doubts about what the Senate will do now, and constitutional questions that had never been raised, such as when the trial will begin and if it is possible that an open trial to who is president now can continue as of January 21, when no longer be it.
There are also veiled threats from Trump that if the process continues, there could be more attacks by his followers.
Demonstrations in favor of the impeachment trial against Richard Nixon in March 1973. AP /
This is a review of what is already known, such as what a conviction would mean, why this second
impeachment
is being carried out
when Trump has mere days in power, and what is expected to happen in the processes that follow after the vote in the House of Representatives.
The possible punishment
Trump's term will officially end on January 20 at 11:59 a.m. EST, just prior to Biden's inauguration (in which there is fears of violence by Trump supporters again).
Thus, the punishment of Trump if found guilty, the
impeachment
, may not be considered necessary by some congressmen.
However,
a conviction may also disqualify him
, making him prohibited from running for any other public office in the future.
Trump has suggested that he wants to run again for the presidency in 2024.
Another penalty of being found guilty and removed from office, if that happens before his term ends, is that Trump would also not receive the $ 219,000-a-year pension or other
privileges former presidents often have.
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Among them, lifetime protection from the Secret Service or the right to receive treatment in the best military hospitals, such as Walter Reed (where Trump agreed to treatments that are not available to the general population when he had coronavirus).
The ball is in the Senate court
An impeachment process is made up of two general phases: that the House of Representatives deliberates whether there is an office that merits “proceeding in cases of official responsibility”, and that the Senate judge accordingly.
In other words,
the Senate is up to the jury,
chaired by the Chief Justice, conservative John Roberts, as the judge who guides the process.
After
hearing arguments, potential witnesses, and designated prosecutors
(representatives who act as temporary attorneys), there is a vote to find guilty or not.
The Constitution establishes that "no person shall be convicted if the vote of two thirds of the members present does not concur".
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If there were a total quorum in the Senate, of 100 senators, that would mean a requirement of 67 votes to convict.
There are 50 Republican senators and 50 Democrats, two of them elected just a few days ago, so they haven't been sworn in yet.
The two-thirds threshold
In the House of Representatives, several Republicans, including high-ranking party representative Liz Cheney, voted to impeach Trump.
But
in the Senate, Republicans have not yet given any indication
that they will back a possible conviction.
["Be careful what you wish for": Trump insists it is dangerous to put him on trial]
Only one Republican, Ben Sasse of Nebraska, has said he would vote for it.
Mitt Romney, a Utah senator and former presidential candidate, may also vote to convict as he was the only Republican to do so in the
2019-2020
impeachment
.
Other Republican senators who have been critical of Trump in the past, such as Lisa Murkowski of Alaska or Pat Toomey of Pennsylvania, have repudiated his recent actions and have stated that he should resign, but have said nothing about
impeachment
.
Mitt Romney, Republican senator from Utah, speaks in favor of impeachment of Donald Trump on February 5, 2020, AP /
Several other Republican senators, meanwhile, have said that the impeachment trial should not be held, supposedly because it goes against a "unit" that must be formed from now on.
Among them is Lindsey Graham, who has defended Trump tooth and nail for many years amid various controversies over white nationalists and false allegations of voter fraud.
55% of Americans believe that Trump should be prosecuted, but that support plummets to
only 15% of Republicans
polled, according to the first official poll to ask about it, from CBS with YouGov.
On January 5, Democrats obtained a
majority
in the Senate by the second-round votes in Georgia, in which Jon Ossoff and Raphael Warnock won.
However, they will not take possession yet, as the results need to be certified.
Another vote that will give Democrats the upper hand in the future is that of Kamala Harris, the vice president-elect.
Whoever serves as vice president always presides over the Senate to be a tiebreaker vote.
Harris will also take office on January 20.
["I took out the ax to protect myself": a congressman tells how he lived the assault in his office in the Capitol]
As Ossoff, Warnock and Harris take their oath,
Republican Mitch McConnell remains the
majority
leader
of the Upper House.
McConnell therefore still has the power to decide whether to put something to a vote.
What Mitch McConnell Says
McConnell has only stated that he remains undecided on what his vote to convict would look like, although there are reports that the senator from Kentucky believes that Trump did commit a chargeable crime, according to The New York Times.
Although that won't necessarily speed up the process.
McConnell indicated in a memorandum circulated on January 8 that the Senate would not meet until January 19, the day before Joe Biden's inauguration, because the calendar does not provide for formal emergency sessions unless all 100 senators agree.
That would mean that until next Tuesday morning the Senate would officially receive the House of Representatives announcement of the indictment, and hear presentations by designated prosecutors in the afternoon.
With that date in mind, McConnell's memo indicates that it would not be
until January 20 itself, or perhaps until Thursday 21,
that the trial to consider the charges actually begins.
A protest in favor of the second impeachment trial against Donald Trump on January 10, 2021 in Denver, Colorado.
["Hundreds" of Capitol assailants will face charges in the coming weeks, FBI says]
By then, several things would have happened: McConnell will likely no longer be the leader of the Upper House (replaced by Democrat Chuck Schumer) and the Senate will also have the
additional responsibility of reviewing and approving Biden's cabinet appointments
(there are reports that the president-elect asked if both issues can be reviewed simultaneously and that McConnell said he would review it).
By that date, in addition,
Trump will no longer be president.
There is debate as to whether then he can finish being tried, since he would have left office.
Can Trump still be tried?
A debate is being waged between specialists and constitutionalists regarding this issue, as the Constitution is not exact in this regard and no court has debated the possibility of prosecuting
a former official
by means of
impeachment
.
Retired Judge Michael Luttig wrote in The Washington Post that the Senate cannot proceed because the Constitution states that "the president, vice president, and all civil servants of the United States shall be removed from their posts upon indictment and found guilty" in case of an
impeachment.
However, other experts say the issue
is not just separation from office.
Because the same Constitution also establishes that: "the scope of the sentence" includes "the disqualification to occupy and enjoy any honorary, trust or remunerated employment" in the federal government.
Keith Whittington, an academic at Princeton University, indicates that there were even state constitutions drafted on a par with the federal one that explicitly provided for the possibility of
impeachment
against someone who had already left office, and that is why the founders, for that section, possibly left a
vague wording that did not prohibit it.
There
are
also
historical precedents
for officials being
impeachment
after leaving office.
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In 1797, Senator William Blount, one of the nation's founders, was expelled from the Upper House for attempting to conspire with the British to sell land in Florida (the first expulsion of an American senator in the country's history).
At the same time, the Lower House voted to prosecute him, even though he had already been removed from office.
In the end, the trial did not proceed because Blount fled to Tennessee and protected himself by becoming a state senator.
In 1876, the then Secretary of War, William Belknap, was accused by the House of Representatives of corruption.
Belknap resigned to try to avoid the trial, but the Senate decided to continue with the second stage considering that it was still possible to prosecute him
even if he was already technically a civilian.
A majority voted against Belknap, but there were not enough senators to reach the required two-thirds to be able to sentence and disqualify him.
In fact,
only three indicted officials have been disbarred
, all judges, according to Princeton's Whittington.
[They will carry out intense cleaning in the White House before the arrival of Joe Biden]
Assuming that "an
impeachment
is a comprehensive inquiry into the conduct of public officials,
there is no reason why that inquiry should necessarily be interrupted by the removal of that official from his public role
," Whittington wrote in 2019.
Even the Republican representative for Florida Matt Gaetz, one of Trump's constant defenders and who this Wednesday voted against the trial, suggested in December 2019 that it is possible to
impeach
a former president.
Why do an
impeachment
at this point?
With so many questions and uncertainties about whether the trial will go through, why are the Democrats pushing for it?
The congressmen who support the trial have said that it is important to be held accountable after what happened on Capitol Hill on January 6, to make a historical record that a president does not go unpunished when it seems that he promotes violent actions against the same government.
"If [we propose that] inciting an insurrection does not
merit
an
impeachment
, then nothing is going to merit it," denounced the representative for Michigan, Dan Kildee, speaking that the oath to defend the Constitution provides "to defend it against foreign and domestic enemies." during the House of Representatives debate on Wednesday.
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Some predict that the possibility also opens for the Republican Party to review its future, given the divisions that are forging due to the bipartisan outrage that arose over the assault on the Capitol and Trump's apparent involvement in what happened.
"Republicans can speak out now or go the easy way, but at some point there will be a reckoning" about the future of the party, "and the political cost will be high," former Republican campaign manager Liam Donovan told NBC News.
The argument that the trial serves
to discourage similar behavior in the future
is one supported by specialists.
Political science and political philosophy professor Michael Blake compares the situation to the
Nuremberg trials of
officials of the Nazi regime.
Proceedings of the special Nuremberg tribunal against leaders of the Nazi regime, September 30, 1946.AP /
"The justification for [prosecuting] Nuremberg was not necessarily about the Nazis themselves, but about those who wanted to follow the same path: the trials sought to identify where the line lies that should be impassable for societies" both "in the present and in the future, "Blake wrote in an article on The Conversation site.
"Trump's offenses are not nearly as grotesque as those of the Nazis," added Blake, "but the idea is to leave a definitive statement of what a president should not do."
That
idea has been promoted by members of the US government since early times.
In the
impeachment
against Belknap in 1876, one of the congressmen, George Hoar, declared: "The right to impeachment in cases of abuses against the public welfare is valid at any time in the life of the person who committed the crime" so that a starting from "a decision resulting from
impeachment,
within a century or more in the history of this country, a similar offense is not repeated by someone in the cabinet or other high official."
With information from the United States National Archives, The New York Times, NBC News, The Washington Post
