Senate trial to put Donald Trump back in the spotlight

“Honey, maybe we’ll frame it,” he quipped to wife Melania.

It’s a scene that now feels as if it took place in a distant, more innocent historical era. Trump’s second impeachment trial, scheduled to begin on Wednesday (AEDT), will unfold in a country that feels utterly transformed.

When the Senate acquitted Trump last year, the coronavirus pandemic was a mere blip on the horizon: the US had yet to record its first official death from COVID-19.

The country’s unemployment rate was just 3.5 per cent, the lowest in half a century.

And the betting markets put the likelihood of Trump winning a second term at 62 per cent.

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A year later, 450,000 Americans have died from COVID-19 and millions are still out of work. Trump is out of office — but only after falsely claiming for months that the November election had been stolen from him, a crusade that culminated in the deadly January 6 riot at the Capitol.

A week after that assault, 220 Democrats in the House of Representatives and 10 Republicans voted to impeach Trump for inciting the insurrection — making him the first president in US history to be impeached twice.

Since departing for his Mar-a-Lago resort in Florida, Trump has been remarkably quiet. His Twitter account lies dormant after his suspension from the platform and he hasn’t given any media interviews since leaving the White House. The over-sharer who dominated the national (and international) conversation for five years has become a sphinx.

But Trump’s second Senate trial will see him return to the political spotlight — albeit in absentia.

‘A loaded cannon’

Last February, Democrats argued that Trump’s pressure campaign against Ukraine was so egregious that he needed to be removed from office.

This time around the calculus is different, given he is no longer the president.

If the Senate was to find Trump guilty of inciting the Capitol insurrection, it would then be able to ban him from holding office again.

In an 80-page brief released last week, Democrats laid out their case for why Trump deserves this unprecedented punishment.

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“His conduct endangered the life of every single member of Congress, jeopardised the peaceful transition of power and line of succession, and compromised our national security,” the Democrats wrote in their brief.

“This is precisely the sort of constitutional offence that warrants disqualification from federal office.”

They argued Trump “summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue”.

In their 14-page response, Trump’s lawyers argued the Senate trial was unconstitutional because Trump was no longer in office. They also denied he wanted his supporters to storm the Capitol, and said his complaints about election fraud were protected free speech.

In late January, Republican Senator Rand Paul introduced a motion arguing that the Senate trial was unconstitutional because Trump was an ex-president.

The vast majority of legal scholars dispute this claim. But it’s an appealing argument for Republican senators who want to acquit Trump without having to defend his behaviour in the lead-up to the riot.

Forty-four of Paul’s Republican colleagues voted with him – including then Republican Senate leader Mitch McConnell, who had only recently accused Trump of “provoking” the riot.

Florida Senator Marco Rubio called the impending trial “stupid” and “unproductive” while colleague Tom Cotton said: “I think a lot of Americans are going to think it’s strange that the Senate is spending its time trying to convict and remove from office a man who left office a week ago.”

Just five Republican senators voted to uphold the trial’s constitutionality – a sign that the Democrats’ case was, in Paul’s words, “dead on arrival”.

“Democrats can beat this partisan horse as long as they want,” Paul said. “This vote indicates it’s over, the trial is all over.”

The threshold for conviction in the Senate is extremely high, reflecting the fact America’s founding fathers did not want to see presidents removed from office on a whim.

A two-thirds Senate super-majority would be required in order for Trump to be found guilty of inciting the Capitol riot, meaning 17 Republicans would have to vote against him.

That’s almost impossible to imagine given how divided Americans are along partisan lines and how popular Trump remains with the Republican Party base. Just last week Kevin McCarthy, the Republican leader in the House of Representatives, met with Trump in Florida to convince him to campaign for the party in the 2022 midterm elections.

A poll by Quinnipiac University this week found that 50 per cent of Americans believed Trump should be convicted of inciting the insurrection while 45 per cent did not.

The partisan split was almost exact: just 12 per cent of Republicans said Trump should be convicted while only 11 per cent of Democrats said he should be acquitted.

In order for 17 Republican senators to vote in favour of conviction, there would have to be overwhelming and bipartisan support among voters for such a move. That groundswell simply isn’t there.

‘Quick but fair’

Trump’s first impeachment trial lasted for almost three weeks, with senators forced to sit in silence for up to 13 hours on some days as they listened to arguments from the prosecution and defence. John Roberts, the Supreme Court’s chief justice presided over the trial, adding a sense of gravitas to proceedings.

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We don’t know exactly how long Trump’s trial will last this time around, but it is likely to be days rather than weeks. Aware they have next to no chance of achieving a conviction, Senate Democrats are keen to dispense with the trial as quickly as possible and move on to other issues.

“It will be a fair trial but it will move relatively quickly,” Chuck Schumer, the Democrats’ Senate leader, said recently. Schumer said it was important to keep the trial short because “we have so much else to do” – such as passing a $US1.9 trillion ($2.4 trillion) coronavirus relief bill.

US President Joe Biden has also made it clear that, while the Senate is obliged to hold a trial, he does not want the early weeks of his presidency to be overshadowed by Trump.

The Democrats’ impeachment managers are expected to rely heavily on video clips of Trump’s speeches and the violence on January 6 when making their case. Many of the senators were themselves witnesses to the violence, reducing the need for lengthy recitation of evidence.

Witnesses are not expected to be called at the trial — especially because Trump, through his lawyers, last week declined a request to appear.

Democrat Patrick Leahy, rather than Chief Justice Roberts, will preside over the trial — reflecting its somewhat downgraded nature.

The big question is how many Republican senators will vote for conviction. Last time around just one Republican, Mitt Romney, broke with the party to vote against Trump. This time around Romney is likely to be joined by a handful of more moderate colleagues — possibly including Susan Collins of Maine and Lisa Murkowski of Alaska.

But as much as the America of today may be unrecognisable from a year ago, Trump’s second impeachment trial looks destined to end the same way as his first: in another “not guilty” verdict.