Amid calls for President Donald Trump’s resignation or removal via the 25th Amendment for his role in the Capitol riot, Democrats are moving ahead with their plan to impeach him for a second time. There probably isn’t enough time for the Senate to remove Trump from office before Joe Biden is inaugurated on January 20, but he could face a Senate trial after his term ends, and be barred from holding office again (though this raises constitutional questions). Here’s what we know about the potential schedule for Trump’s second impeachment.
Monday, January 11: House Introduces Articles of Impeachment
On January 11, House Speaker Nancy Pelosi unveiled a single article of impeachment (based on a draft circulated among House Democrats last week) charging Trump with “incitement to insurrection” in his infamous January 6 speech to a Washington, D.C., rally that then turned into an attack on the Capitol.
Tuesday, January 12: House Votes on 25th Amendment Resolution
The House passed a resolution late on January 12 calling on Vice-President Mike Pence and the Trump Cabinet to invoke the 25th Amendment to remove the president from office or otherwise secure his resignation, with 222 Democrats being joined by one Republican, Adam Kinzinger of Illinois. But prior to the vote Pence released a letter to Pelosi rejecting the resolution as a “political game,” and arguing that the 25th Amendment is strictly a recourse for medical disabilities, “not a means of punishment or usurpation.” This clears the way for impeachment.
Wednesday, January 13: Impeachment by the House
The House began debating impeachment on the morning of Wednesday, January 13 and voted to impeach Trump 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 10 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.
The star recruit for impeachment was Wyoming’s Liz Cheney, the third-ranking member of the GOP leadership as chair of the House Republican Conference. Democrats speaking on the floor quoted her frequently, and there are already multiple calls from Trump-aligned conservatives to topple her from her position.
Tuesday, January 19: 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).
The beginning date of a Senate trial is not, however, strictly up to Pelosi. Mitch McConnell is taking the position that the Senate is only obligated to entertain an “exhibition” of an article of impeachment on January 19, when it is scheduled to reconvene (Senate Democratic Leader Chuck Schumer is urging McConnell to call back the Senate earlier, but he doesn’t have the keys to the chamber until new Georgia Senators Ralph Warnock and Jon Ossoff are sworn in after their elections are certified back home at some point prior to January 22). If the House managers show up the minute the Senate goes back into session, then an impeachment trial would begin at 1 p.m. the following day — which happens to be Inauguration Day. McConnell has issued a public statement saying he would not call the Senate back early since there would be no time to finish a trial before impeachment before Inauguration Day in any event.
There had been some talk that Pelosi would hold back on transmittal of the article of impeachment until well after Inauguration Day to let Biden take office and begin securing confirmation of his Cabinet, and allow Democrats get control of the Senate. Indeed, House Majority Whip Jim Clyburn suggested over the weekend that Democrats might give Biden “100 days” to get his presidency under way before transmitting the article and forcing the Senate to hold the trial (the rules require the Senate to stay in session six days a week until the trial ends, basically forcing all other business to the sidelines). But now it looks like the prevailing sentiment is to send over the article immediately to convey its urgency.
TBD: Senate Impeachment Trial
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. Presumably Democrats will maintain it is permissible in order to ensure that an impeached president does not run for office in the future (one of the impeachment sanctions specifically authorized by the Constitution). 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.
As noted above, the beginning of an impeachment trial is fairly certain and imminent once the House has transmitted an article of impeachment, and major elements of the trial are specified in the standing Senate rules. 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, and two weeks is probably the absolute minimum time it would take in this second trial.
TBD: Senate Verdict
As you may remember from Trump’s first trial, a two-thirds vote is necessary to convict a president and remove him from office. That would mean 18 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 seems 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. As in the House, it’s possible Senate Republicans will rally around the alternative of censuring Trump, just as many Democrats did before and during Bill Clinton’s impeachment trial. But Democrats, of course, would not mind saddling their opponents with a vote denying accountability a second time for this scofflaw president. And it’s likely more than one Republican senator (Mitt Romney was the sole “aye” vote for Trump’s conviction in February of 2020) will go along this time.
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. It’s more feasible that methods other than an impeachment trial, such as a resolution seeking enforcement of the 14th Amendment’s disqualification of those who abet insurrection, will be pursued to keep Trump from undertaking a comeback.