How would the US President’s second impeachment work?

When some Democrats were pushing for US President Donald Trump’s impeachment in early 2019, it took around five months for House Speaker Nancy Pelosi to back the idea.

This time, it only took a day.

Trump did not explicitly instruct his supporters at the Save America rally on January 6 to sack the Capitol, but Pelosi was shocked by the violent imagery he used to urge supporters to “stop the steal” as Congress met to ratify the election of his successor, President-elect Joe Biden.

She came out strongly the next day in support of Trump’s removal – either by his own cabinet or by Congress, if necessary – after pro-Trump supporters violently breached and ransacked the Capitol. Several had been seen searching for her and Vice-President Mike Pence as they roamed the corridors, and some had ransacked her office, posing for photos at her desk.

Now Pelosi is leading the push for a accelerated impeachment process, determined to hold the President accountable for the deadly riot that left five dead – the first occupation of the Capitol since the British army burned it to the ground in 1814.

How would Trump be impeached? What is the point given he is about to leave office? And what is the likelihood of it happening?

What is Trump being impeached for exactly?

In the four-page Democrat-drawn article of impeachment, Trump faces a single charge, “incitement of insurrection”.

“President Trump gravely endangered the security of the United States and its institutions of Government,” reads the bill. “He will remain a threat to national security, democracy, and the Constitution if allowed to remain in office.”

The bill draws from Trump’s own false statements about his election defeat to Biden, which have been rejected in more than 50 court cases, appeals and Supreme Court dismissals.

The impeachment legislation also details Trump’s pressure on state officials in Georgia to “find” him more votes, as well as his White House rally ahead of the attack on the Capitol, in which he encouraged thousands of supporters to “fight like hell” and march to the building.

The bill concludes that Trump should be barred from holding public office ever again: “Donald John Trump thus warrants impeachment and trial, removal from office and disqualification to hold and enjoy any office of honour, trust, or profit under the United States.”

It goes on to note that, because of the language in the US Constitution’s 14th amendment, which bars any American who has “engaged in insurrection or rebellion” against the US from holding office, Trump should not just be removed, but completely disallowed from seeking public office ever again. That would mean he could not run for President in 2024, something he has often hinted at.

What did he do, specifically?

He lied about the election result – a lot. Since election night, Trump has falsely asserted that the presidential election was rigged to hand victory to Democrat candidate Joe Biden, insisting in speeches, tweets and court documents that votes were flipped from Trump to Biden, that Trump votes were ditched and that Biden votes were supplemented with phoney ballots cast in the names of the dead or those who voted twice under different identities.

None of these claims have ever been upheld, and even Trump’s own attorney-general, William Barr, who has since left his job, concluded in December that there was no evidence of widespread voter fraud that would change the outcome of the 2020 presidential election.

Trump also pressured a state official to find extra votes. At the beginning of January, the Washington Post released tapes of the President unsuccessfully pressuring Georgia’s Republican Secretary of State, Brad Raffensperger, to find 11,780 votes for him – enough to change the result in that swing state.

Trump pleaded and threatened Raffensperger to alter the results: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.”

In making this call, Trump could have violated a federal law that makes it a crime to solicit the counting of ballots “known to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held”. There’s a Georgia state law that prohibits election fraud, too. But to convict at state or federal level, prosecutors would have to establish that Trump did not genuinely believe the election was rigged.

And Trump inspired a violent mob to invade the Capitol. On January 6, Trump definitely inspired a crowd of supporters to rally, to run towards the Capitol and to “stop the steal”.

Before Trump arrived at the rally, Vice-President Mike Pence had already told him that he was not going to interfere with the certification of the electoral college votes that would give the presidency to Joe Biden. So Trump told his supporters to “fight much harder” for the victory he wanted.

“And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a sad day for our country. Because you’re sworn to uphold our Constitution.”

He urged his supporters to go to the Capitol with him.

“We are going to cheer on our brave senators and congressmen and women, and we are probably not going to be cheering so much for some of them – because you will never take back our country with weakness.”

Earlier, his lawyer Rudy Giuliani spoke of “trial by combat” to ensure Trump stayed in the White House, while his son, Donald Trump jnr, warned Republicans who did not back the challenges of the electoral votes: “We’re coming for you.”

One of those Republicans, Wyoming representative Liz Cheney, was in no doubt that Trump had incited rebellion and will vote to impeach him.

“There’s no question the President formed the mob,” the eldest daughter of former vice-president Dick Cheney told Fox News. “The President incited the mob. The President addressed the mob. He lit the flame.”

Did he incite insurrection in the eyes of the law? Possibly. Section 373 of title 18 of the United States Code makes it a felony to induce or persuade someone to attempt the “use of physical force against property or against the person of another”.

According to The New York Times, the main federal statute against inciting a riot requires a link to commercial interests or travel across state boundaries. But it is a crime in Washington DC anyway to incite a riot.

These matters are likely to be debated by Congress, although they are not essential to the impeachment. Separate criminal charges against Trump have not been ruled out, nor in.

What is the point when he is leaving office on January 20?

As our North American correspondent Matthew Knot says: “At least in the short term, Trump’s impeachment would be an essentially symbolic punishment for his lies about widespread election fraud. But Democrats insist there has to be some form of retribution for Trump’s reckless behaviour. Any attempt to unify Democrats and Republicans, they say, can only come after accountability for those who incited the violence in the Capitol.”

But at a moment when many prominent Republicans – including Senate leader Mitch McConnell – have condemned the violence and several have explicitly damned Trump’s role, Democrats hope to persuade enough of them to back the impeachment, ensuring Trump could never run for office again. And there are many Republicans who would gladly see him gone, for the sake of the party and because it would clear a path for their own ambitions.

Was impeachment the only option?

No. There had been talk of persuading Pence to use section 4 of the US Constitution’s 25th amendment, which enables the Vice-President and a majority of the cabinet to declare a president unfit for office. The Vice-President then becomes acting president.

But late on Tuesday night (Wednesday AEDT), Pence wrote to Pelosi to say the mechanism should not be used “as a means of punishment or usurpation”, but instead reserved for cases of medical or mental incapacitation.

Pence instead encouraged Congress to avoid actions that “further divide and inflame the passions of the moment” and to focus on smoothing the transition to President-elect Joe Biden’s administration.

The Vice-President has said nothing publicly about Trump or the violence since January 6, when he reconvened Congress after rioters had been chased from the building. “To those who wreaked havoc in our Capitol today, you did not win. Violence never wins. Freedom wins,” he said on the night. “And this is still the people’s house.”

There’s also the 14th amendment. US legal scholars Bruce Akerman and Gerard Magliocca wrote in The Washington Post that instead of impeaching Trump, Congress could use the little-known section three of the 14th amendment, created after the Civil War to prevent Confederates from joining the government.

This 19th-century clause would bar Trump from holding federal office ever again if he is found to have “engaged in insurrection or rebellion against” the Constitution.

Congress could declare Trump guilty of “insurrection or rebellion” with a simple majority vote – something incoming vice-president Kamala Harris could guarantee with a tie-breaker vote. Professors Akerman and Magliocca say Trump could then only run for President again if he could persuade two-thirds of the House of Representatives and Senate to vote to remove the ban.

What is the process of impeaching Trump?

Even at warp speed, impeachment is not straightforward.

In normal order, there would be an impeachment investigation and the evidence would be sent to the House Judiciary Committee, which would hold hearings, draft articles and send them to the full house. That’s what happened in 2019, when the House impeached Trump over his dealings with the president of Ukraine. It took three months.

This time, with so few days to move – and a feeling among Democrats that there is little need to investigate what happened, since most members of Congress were in the Capitol when the mob broke in – Pelosi will hold a floor vote with no hearings or committee action.

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Once the House votes to impeach on Wednesday, January 13 (Washington DC local time), the articles and evidence are sent to the Senate, where a trial is held and there are final votes to convict or acquit, as the Senate did in early February of last year.

The timing is up in the air.

Senate Democrat leader Chuck Schumer wants to immediately convene the Senate for the trial as soon as the House acts, though Republican leader Mitch McConnell would need to agree.

The Senate is not set to resume full sessions until January 20, Inauguration Day.

Not even the keenest of Trump’s enemies would want to derail Biden’s big day with impeachment proceedings.

Even though the Democrats will have control of the Senate after inauguration, impeachment requires two-thirds of Senators voting to convict, and many Republicans have already said an impeachment would divide the country even further. If fewer vote for conviction, even a simple majority, the president is acquitted.

President-elect Joe Biden is not necessarily enthusiastic, as the spectacle of impeachment would draw the focus of Congress away from the business of backing his ambitious reform agenda for his first 100 days. He has already suggested that if there’s an impeachment, that the day’s business be divided in half so part of the day can continue to be devoted to lawmaking – especially endorsing the new administration’s key appointments and bringing in urgent reforms for coronavirus vaccination and economic relief.

What is the likelihood of it happening?

The House is very likely to vote to impeach, which would make Trump the only president to ever be impeached twice. Bill Clinton and Andrew Johnson were also impeached, but both avoided conviction.

The New York Times is reporting that Republican Senate leader Mitch McConnell has told associates that he believes Trump committed impeachable offences and he is pleased Democrats are moving to impeach Trump, believing that it will make it easier to purge him from the party, according to people familiar with his thinking.

The paper, citing Republican officials briefed on the conversations, reports that Republican House minority leader Kevin McCarthy has asked other party members whether he should call on Trump to resign. McCarthy and other party leaders have decided not to formally lobby Republicans to vote “no” to impeachment. “In private, McCarthy reached out to a leading House Democrat to see if the chamber would be willing to pursue a censure vote, although Speaker Nancy Pelosi has ruled it out,” The New York Times reported.

So far, it does not look like enough Republicans in the Senate have said they would be willing to go so far as to convict Trump for incitement to riot, no matter their disgust at how his actions led to the trashing of the Capitol and, arguably, the Grand Old Party itself. But these are strange times and Trump is in a unique proposition, even in the States’ long and inglorious history of terrible presidents, so it is not impossible.

With AP, The Washington Post