Senators will be formally sworn in as jurors on Tuesday for the second impeachment trial of former President Donald Trump, though the trial won’t get into full swing until the week of February 8.
On Monday, the House impeachment managers, a group of Democratic lawmakers who will act as prosecutors presenting the case against Trump during the trial, delivered the single article of impeachment to the Senate. The article, approved by the Democrat-led House, charges Trump with incitement of insurrection for provoking the attack on the US Capitol that left multiple people dead.
The transmission of the article typically triggers a quick start to an impeachment trial, but Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell reached a deal last week to push back the start date for the substance of the proceedings. That move will give Democrats more time to confirm Biden’s Cabinet and potentially take up a new Covid-19 relief bill while Trump’s defense team will have more time to prepare for trial.
It remains to be seen how long the trial will last, whether the House impeachment managers will seek witnesses, and what the exact contours of the President’s legal defense will be.
When the trial gets underway, one visible difference between the proceedings and Trump’s first impeachment trial will be that instead of Chief Justice John Roberts, the Senate’s longest-serving Democrat is expected to preside.
Roberts will not be presiding as he did for the first trial, two sources familiar with the matter told CNN Monday.
Instead, Sen. Patrick Leahy, the president pro tempore of the Senate, is expected to preside, the sources said. The Constitution says the chief justice presides when the person facing trial is the current president of the United States, but senators preside in other cases, one source said, and Trump’s second trial will take place with him no longer in office.
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The likelihood that Leahy will oversee the trial has raised questions about whether he will also be eligible to vote, but constitutional experts say that nothing would stop him from doing so.
It would take a two-thirds vote in the Senate to convict Trump, a high bar to clear that looks increasingly unlikely to happen as a number of Senate Republicans are already arguing that it’s illogical and may be unconstitutional to impeach a former president.
Given the limited language in the Constitution on impeachment, legal experts disagree about whether the Senate can convict a former president. But Democrats have pointed to legal scholars on both ends of the political spectrum who say a trial is constitutional.
Under the agreement reached by Schumer and McConnell, several ceremonial functions of the trial will take place this week. On Tuesday, the Senate is also expected to issue a summons to Trump, another step in the process of organizing for the trial to kick into high gear.
Then the trial will effectively be put on hold as the impeachment managers and Trump’s legal team exchange pre-trial briefs for two weeks. The final briefs would be due on February 9, allowing the trial to begin in earnest.
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