Donald Trump’s role in inciting the January 6 Capitol riot has led to a historic second impeachment, and to the first impeachment trial of a president after he’s left office. If the Senate votes to convict Trump, it could then invoke the constitutionally created sanction of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” — meaning no 2024 comeback attempt. Here’s what we know about the potential schedule for this process.
Wednesday, January 13: Impeachment by the House
The House began debating impeachment on the morning of Wednesday, January 13 and voted to impeach Trump on a single article of “incitement to insurrection” after a brisk two-hour debate, even as Republicans complained about the speed of the process and the lack of the usual investigations and hearings (with Democrats replying that insurrectionary acts witnessed by the entire world didn’t need investigation). The vote was 232-197, with ten Republicans — and no Democrats — crossing party lines. In the first impeachment vote in December of 2019, no Republicans defected while two or three (depending on the particular article) Democrats opposed the measure.
Monday, January 25: Transmittal of Article of Impeachment to the Senate
Normally, the process of transmitting articles of impeachment from the House to the Senate is reasonably simple, though it does require appointment by the Speaker of impeachment “managers” (which in this case preceded the impeachment vote) who will present the case for impeachment in the Senate before and during the subsequent impeachment trial. It’s up to Nancy Pelosi to decide when to march the managers over to the Senate to “exhibit” the article and trigger a trial under the procedures set up in the upper chamber’s standing rules governing impeachment. After Trump’s first impeachment, Pelosi held back transmittal of the articles for nearly a month (from December 18, 2019 until January 15, 2020).
On January 22, however, new Senate Majority Leader Chuck Schumer announced on the Senate floor that Pelosi would send over the article on Monday, January 25. This decision may have been intended as a rebuke to now-Minority Leader Mitch McConnell, who had floated the idea of delaying the trial until mid-February to allow Trump’s lawyers to get a defense together.
Tuesday, January 26(?): Senate Impeachment Trial
Under the standing Senate rules for impeachment trials, once the article of impeachment has been “exhibited” in the Senate by the House impeachment managers, a quick series of actions unfold, including the formal beginning of the trial by 1 p.m. the very next day. Any significant delay would require a motion accepted by unanimous consent on various trial procedures not addressed in the standing rules, or amending the standing rules (e.g., by specifying a less immediate trial date). So the big question became whether Democrats were determined to move ahead quickly on the trial — given concerns some have expressed about its affect on Joe Biden’s Cabinet confirmations and initial legislative maneuvers — or instead plan to work out a deal with McConnell
Now it appears (according to Punchbowl) that a deal has been struck between McConnell and Schumer on a schedule for the impeachment trial that will delay it for a while:
On Monday, Speaker Nancy Pelosi will send the articles to the Senate. On Tuesday, the Senate will swear in the senators, and issue a summons to Trump.
Trump’s response to the impeachment article and the House’s pre-trial brief will be due Feb. 2. On Feb. 8, Trump must submit his pre-trial brief.
The trial is set to begin the week of Feb. 8. The Senate will then “pause” between Feb. 2 and Feb. 9, during which the Senate is likely to confirm some of Joe Biden’s Cabinet nominees.
It’s unlikely any witnesses or significant fact-finding would be required, since, again, the stipulated “high crimes and misdemeanors” involve public acts over which there is no material disagreement as to their occurrence. Trump’s first trial nonetheless took 20 days given the requirements for arguments by the House managers and the president’s (or in this case former president’s) representatives. While there has been some talk of a three-day trial, something that fast seems unlikely unless Trump waives his right to present a rebuttal to the charge or (most unlikely) the article is dismissed before a formal verdict.
Normally the chief justice of the Supreme Court presides over the impeachment trial of a president (as did John Roberts in the first Trump trial in 2020). But Roberts is said to believe he can skip this dangerous chore because Trump is no longer president, which means the vice-president can preside without the conflict of interest (a possible elevation to the presidency upon a conviction) that led the Founders to provide a role for the chief justice in a presidential trial. Vice-President Kamala Harris might in turn delegate the presiding role to President Pro Tem Pat Leahy given the partisanship her prominent participation could suggest.
Hanging over all these scenarios is the unresolved constitutional question of whether it is possible to hold an impeachment trial for a president who is no longer in office. Democrats will maintain (possibly via expert testimony) that it is permissible in order to ensure that an impeached president does not evade responsibility by leaving but then returning to public office in the future (a ban that can be imposed by a simple majority vote after conviction). Trump’s defenders will cite their own legal scholars who reject this judicially untested premise. That subject could arise as a point of order during an impeachment trial, or in litigation that would surely wind up in the U.S. Supreme Court after the trial.
TBD: Senate Verdict
As you may remember from Trump’s first trial, a two-thirds vote is necessary to convict a president on any one article of impeachment. That would mean 17 Republican senators would be needed to convict him (assuming all the Democrats voted “aye,” which isn’t certain; Joe Manchin has publicly said the second impeachment drive is “ill-advised”). That is highly unlikely, particularly since Republicans will argue that with Trump having already left office, there’s no point in “removing” him again, and voters should not be denied the option of reviving his career in the future. Yes, more than the one Republican senator who voted “aye” in Trump’s first trial (Mitt Romney) is likely to do so this time, but the best guess is currently five or six defections, and certainly fewer than ten.
There are reports Mitch McConnell himself won’t whip an impeachment trial verdict, and will be happy to see the back of Trump once and for all. One “scoop” has it that the Senate Republican leader is even leaning towards voting for conviction, which if true would represent a turn of events unimaginable before January 6. But it’s far more likely that McConnell will emulate House Republican leaders who during the debate on impeachment criticized Trump’s conduct but opposed a late impeachment on grounds that it was pointless if not actually unconstitutional.
This post has been updated throughout.