Democratic control of the US Senate could create problems for Donald Trump in the weeks ahead when the former president likely faces his second impeachment trial – but not because Democrats by themselves would be able to convict Trump on the charge at hand: incitement of insurrection.
A two-thirds majority of voting senators – 67 if all 100 members vote – is still required to convict the president, and the Democratic caucus will number only 50 senators. Thus they would need 17 Republicans to join them to convict Trump.
If convicted, Trump could be banned from ever again holding public office. If not, Trump, who won the votes of 74 million Americans just two months ago, might simply run for president again in 2024.
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Late Thursday it emerged that Senate Republican leader Mitch McConnell is proposing to push back the start of the Senate trial to give Trump time to prepare. He said he is suggesting the impeachment charge be presented to the Senate on 28 January and the trial to start two weeks after that.
Senate majority leader Chuck Schumer said he was negotiating on timing but added “make no mistake about it. There will be a trial, there will be a vote, up or down or whether to convict the president”.
The judgment facing Republicans is more political than constitutional, said Frank O Bowman III, author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump and a professor at the University of Missouri school of law.
“If Republicans decide, as most of them will, maybe nearly all, to vote against this, it’s going to have nothing to do with their opinion about the behavior of Donald Trump,” he said.
“It will have everything to do with their narrow political calculation about balancing whatever allegiance they may feel to the constitution with concerns about being attacked from the Trumpist right, to, on the other side, a sense that I suspect many of them have that if they could rid themselves of this turbulent priest, and not have to suffer any major electoral consequences, they’d do it in a minute.”
On its face, 17 Republicans voting to convict Trump currently seems like an extremely tall order despite the widespread outrage at the attack on the Capitol by a pro-Trump mob that he had seemed to goad into action. Last time Trump faced an impeachment trial, in February 2020, only one Republican senator, Mitt Romney of Utah, cast a vote to convict him.
But the political landscape has changed dramatically meanwhile. Disgust at the fatal sacking of the Capitol has only grown since 6 January, creating pressure on Republicans to condemn Trump, who appeared in person to speak to the mob before the attack and encouraged them to march on the building.
Some Republicans might be eager to condemn Trump for other reasons, blaming him for their loss of the Senate majority, which happened because Republican candidates lost two runoff elections in Georgia in January, in a huge double upset.
The most important Republican senator of all, minority leader McConnell – who would still be majority leader, if Republicans had won just one of those Georgia contests – has indicated that he might vote to convict Trump, whom he blasted on the floor of the Senate a day before Trump left office.
“The mob was fed lies,” McConnell said. “They were provoked by the president and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like. But we pressed on.”
McConnell’s break with Trump is breathtaking for many political observers. The last time Trump faced an impeachment trial, McConnell promised “total coordination with the White House” on Trump’s defense, said there was “no chance” Trump would be convicted, and told Fox News, “the case is so darn weak coming from the House”.
This time, McConnell has announced: “I have not made a final decision on how I will vote, and I intend to listen to the legal arguments when they are presented to the Senate.”
As the Senate majority, Democrats will enjoy certain procedural perks during the impeachment trial. They will control scheduling, and be able to tailor the trial around the legislative priorities of president Joe Biden.
Senate majority leader Schumer is coordinating with House speaker Nancy Pelosi about when the article of impeachment would be handed over, triggering the trial process. “It will be soon; it will not be long,” Pelosi said on Thursday.
Unlike at Trump’s first impeachment trial, Republicans this time will have great difficulty blocking witnesses at the new trial, assuming all 50 Democratic senators stick together – although exactly how a tie would be broken on a procedural objection to the introduction of a certain witness is not yet clear, said Bowman.
“I suspect this is the kind of thing that the Senate parliamentarian is hunkered down with somebody figuring out,” Bowman said.
It is likewise unclear how many Republicans might follow McConnell if he indeed tips toward convicting Trump. Ten Republicans joined Democrats last week in the House to impeach Trump by a 232-197 vote – hardly a flood of defectors, and yet the most bipartisan impeachment vote in history.
Up for election only once every six years versus every other year for House members, senators are more insulated from political tides. Anger at how Trump has divided their party could tempt some Republicans toward banishing him, as could fear of what Trump will do if he is permitted to run for office again.
Other powerful currents of ambition and desire are at work. At least a half-dozen Republican senators hope to run for president themselves in 2024, potentially conferring a certain convenience on having Trump offstage.
The narrow impeachment charge against Trump is strong on the merits, said Bowman, but the most powerful case against him would take in the entirety of his conduct after the election, when he attacked the democracy with wild false claims about voter fraud, pressured local elections officials directly to overturn state results and then summoned a mob to the Capitol to block the certification of the vote.
“Donald Trump tried to overturn American democracy, there’s no way to get around that, that’s what he tried to do,” Bowman said. “And we came within a gnat’s whisker of having him succeed.
“So, is that impeachable? Dammit yes, and it is plainly the most impeachable sequence of events that has ever come to our attention, because it is the biggest betrayal by an American president of American constitutionalism in the history of our country.
“The sad fact is that despite the fact that that’s obviously true, to anybody who’s not a QAnon delusionist, he probably is going to skate anyway, because too many Republicans are more worried about their own electoral future than they are about preserving the constitutional order.”
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