Donald Trump’s second impeachment trial, which is due to open in the Senate on Tuesday, February 9, is likely to end like the first, with an acquittal. Certainly, unlike 2020, a majority of senators should find the former president guilty “Incitement to insurgency” for his role in the assault by some of his supporters on the Capitol on January 6 in Washington.
But this majority, made up of the fifty elected Democrats and a probable handful of Republican defectors, should prove insufficient given the threshold required for a impeachment (67 votes out of 100). Republican elected officials who spoke on political broadcasts on Sunday denounced ” a waste of time ” (Roger Wicker, Mississippi), ” a joke ” and “A risk for the unity of the country” (Rand Paul, Kentucky).
The attack on the United States Congress came moments after a fiery rally in front of the White House. Donald Trump had called for a show of force to thwart the certification of the results of a presidential election marred, according to him, by irregularities. Despite dozens of appeals to justice, his lawyers had yet been unable to provide proof.
Argument of unconstitutionality
As suggested by the arguments of prosecutors and lawyers for the president, filed on January 2, the two camps will oppose on two dates. The defense, laboriously put together and which does not include any of the big names requisitioned during Donald Trump’s first trial, will highlight that of January 20, synonymous with the end of the outgoing president’s mandate. It will allow them to attack the legitimacy of the procedure, deemed unconstitutional. This is the position defended in particular by J. Michael Luttig, a leading figure in conservative jurists.
There is indeed a precedent of a member of the government tried by the Senate when he was no longer in office, but the case has never arisen for a former president.
This posture has an undeniable advantage in terms of political arithmetic. On January 26, only five Republican senators ruled that this trial could be held, during a vote provoked by Rand Paul. Far from the seventeen defections necessary for guilt. The argument of unconstitutionality allows certain elected officials very critical of Donald Trump’s attitude on January 6, such as the leader of the Republican minority, Mitch McConnell (Kentucky), to avoid alienating an electoral base that is still also welded around him.
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