US Senate Trump move in uncharted waters

David Morgan and Richard Cowan
·3-min read

The US will be in uncharted territory when the Senate meets as soon as next week for the impeachment trial of Donald Trump, the first president both to be impeached a second time and to face trial by lawmakers after leaving office.

The House of Representatives on Wednesday voted to impeach Trump on charges of incitement after his supporters rampaged in the Capitol.

Trump had alleged he lost the election to Joe Biden due to widespread voting fraud.

In an emotional debate before the 232-197 vote, 10 Republicans joined the majority Democrats in supporting impeachment.

Multiple Republicans defended Trump's remarks as protected by the First Amendment of the US constitution, which defends free speech.

The swift impeachment, one week after the riot, is very unlikely to lead to Trump's ouster before Biden takes office on January 20.

Majority Leader Mitch McConnell has rejected Democratic calls for a quick trial in the Republican-led Senate, saying there was no way to meet in time.

But even if he has left the White House, the Senate could convict Trump and then vote to ban him from running for office again.

Biden, a Democrat, has urged Senate leaders to avoid a trial during his first days in the White House so that they can focus on the economy, getting the coronavirus vaccine distribution program on track and confirming crucial cabinet nominees.

"I hope that the Senate leadership will find a way to deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation," Biden said in a statement on Wednesday.

Biden's inauguration has been scaled back due to security concerns and the COVID-19 pandemic.

The West Front of the Capitol building, where the swearing-in occurs, is now fortified by fencing, barriers and thousands of National Guard troops.

The article of impeachment - equivalent to an indictment in a criminal trial - charged Trump with "incitement of insurrection" in his speech to a larger crowd of thousands of supporters shortly before the riot.

The mob disrupted Congress's certification of Biden's victory, sent lawmakers into hiding and left five people dead including a police officer.

Under the US constitution, impeachment in the House triggers a trial in the Senate.

A two-thirds majority would be needed to convict and remove Trump, meaning at least 17 Republicans in the 100-member chamber would have to join the Democrats.

McConnell has said no trial could begin until the Senate was scheduled to be back in regular session on Tuesday.

If Trump is already out of the White House, historical precedent suggests the Senate could disqualify him from holding office in the future with only a simple majority vote.

In the trial, Trump's legal team may argue that his comments to supporters on January 6 were not a call to violence and were protected by the right to free speech under the First Amendment, some legal experts said.

They said all sorts of lawful rhetoric can be proper grounds for impeachment, however, and that Congress has wide latitude to define "incitement" as it sees fit in the impeachment process.

Trump's team could also argue that holding an impeachment trial after he has left office would violate the constitution.

But there is precedent for Congress impeaching former federal officials and the constitution explicitly says that impeachment is not just for removing officials but also for disqualifying them from future office, the experts said.