Five key questions in Donald Trump’s impeachment trial

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Arguments have begun about the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the US Capitol on 6 January.

Here are five key questions about what to expect when senators hear the case against the former president in the very chamber that was besieged by insurrectionists.

– Will Donald Trump be convicted?

It is unlikely. While many Republicans were harshly critical of Trump for telling supporters to “fight like hell” and go to the Capitol, their criticism has since softened.

The shift was evident during a test vote on 26 January. Only five Republican senators voted against a motion that was aimed at dismissing the trial.

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It will take a two-thirds vote of the 100-member Senate to convict Trump of the impeachment charge, which is “incitement of insurrection”. If all 50 Democrats voted to convict him, 17 Republicans would have to join them to reach that threshold.

Most Republicans have avoided defending Trump’s actions on the day of the riot. Instead, politicians have argued that the trial is unconstitutional because Trump is no longer in office. Democrats and many legal scholars disagree.

After the January test vote, many Republicans indicated Trump’s acquittal was a foregone conclusion.

“Do the math,” said Maine senator Susan Collins, one of the five Republicans who voted to move forward with the trial.

People loyal to Donald Trump climbing the west wall of the the US Capitol
People loyal to Donald Trump climbing the west wall of the US Capitol in Washington (Jose Luis Magana/AP)

Still, some Republicans said they were waiting to hear the arguments at trial. Ohio senator Rob Portman voted for the effort to dismiss, but said that constitutionality “is a totally different issue” than whether Trump is guilty of incitement.

– How do Donald Trump’s lawyers mount a defence without angering the Senate?

It is a tough needle to thread. Trump’s team will probably try to remove the emotion from the case and focus on legal and practical arguments against conviction.

In their first filing for the trial, his lawyers made clear that they will challenge the constitutionality of the trial now that Trump has left the White House. That could give an out to Republican senators who are inclined to acquit the former president without condoning his behaviour.

The defence could also argue the trial is pointless with Trump no longer president, because removal from office is the automatic punishment for an impeachment conviction. Democrats note that after a conviction, the Senate also could bar Trump from holding public office in the future.

Insurrectionists loyal to Donald Trump breached the Capitol
Insurrectionists loyal to Donald Trump breached the Capitol in Washington (John Minchillo/AP)

To the extent that defence lawyers are forced to grapple head-on with the violence and chaos of 6 January, they probably will concede the horror of that day but blame it on the rioters who stormed the Capitol. Trump’s lawyers assert that he never incited the insurrection.

– How do the House impeachment managers get through to sceptical Republicans?

It will not be easy. For the prosecutors, the bottom line is that the riot would not have happened without Trump, so he must be held to account.

It’s a simple case that Democrats feel does not need to be exaggerated, especially because five people died amid the chaos, and senators were victims themselves. The Senate quickly evacuated just as the insurrectionists were pushing up stairwells close to the chamber. Once senators were gone, rioters broke in and rifled through the politicians’ desks.

The House chamber on January 6, before a violent mob stormed the US Capitol
The House chamber on January 6, before a violent mob stormed the US Capitol (J Scott Applewhite/AP/Pool)

In a brief filed recently previewing their arguments, the House impeachment managers used stark imagery and emotional appeals to argue Trump’s guilt.

Their filing said senators were “feet away” from the swarming rioters, and noted that those outside “wearing Trump paraphernalia shoved and punched Capitol Police officers, gouged their eyes, assaulted them with pepper spray and projectiles”.

In the House, the impeachment managers wrote, “terrified members were trapped in the Chamber; they prayed and tried to build makeshift defences while rioters smashed the entryway… some members called loved ones for fear that they would not survive the assault by President Trump’s insurrectionist mob”.

Those scenes will be brought to life at the trial. Prosecutors are expected to play video of the attack during their presentations.

– Will we hear from Donald Trump?

That does not seem likely. He has rejected through his lawyers a request by impeachment managers to testify. A subpoena seeking to compel his testimony is not expected at this point.

Donald Trump
Donald Trump is in Florida (Chris Szagola/PA)

Trump also no longer has access to Twitter, which he relied on extensively during his first impeachment trial last year to attack the case against him and to retweet messages, videos and other posts from Republicans haranguing Democrats.

With Trump at his Florida resort, his lawyers will be left to make arguments on his behalf. Democrats pledged to hold Trump’s unwillingness to testify against him at trial, but the argument may not resonate. It is not clear that Republican senators — even the many who are likely to acquit him — really want to hear from him.

– What happens if Donald Trump is acquitted?

The likelihood of Trump’s acquittal worries some senators, who fear the consequences for the country. Some have floated the possibility of censuring Trump after the trial to ensure that he is punished in some way for the riot.

But there also may be another way for Congress to bar Trump from holding future office.

A flag hangs between broken windows
A flag hangs between broken windows after a violent mob broke through police barriers outside the US Capitol (John Minchillo/AP)

In an opinion piece published last month in The Washington Post, Yale law professor Bruce Ackerman and Indiana University law professor Gerard Magliocca suggested Congress could turn to a provision of the 14th Amendment that is aimed at preventing people from holding federal office if they are deemed to have “engaged in insurrection or rebellion against” the Constitution.

The professors wrote that if a majority vote of both Houses agree that Mr Trump engaged in an act of “insurrection or rebellion”, then he would be barred from running for the White House again. Only a two-thirds vote of each chamber of Congress in the future could undo that result.

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