"And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore." What Donald Trump may have intended for to be a passionate, historic speech has now pegged him on the other side of history - he's become the first US president to be impeached twice.
Trump's words at a rally near the White House on January 6 are being directly blamed for the events that occurred soon after, when a mob of his supporters stormed the US Capitol to try to stop Congress from certifying then-President-elect Joe Biden’s victory. Trump was impeached on January 13 by the US House on a single charge of “incitement of insurrection.”
Now, as Trump's impeachment trial is set to begin on February 9, here is everything you need to know about the historic proceedings:
WHY THE TRIAL IS TAKING PLACE
Trump’s historic second impeachment trial begins Tuesday EST, forcing the Senate to decide whether to convict him of incitement of insurrection after a violent mob of his supporters laid siege to the US Capitol on January 6.
While Trump’s acquittal is expected, Democrats hope to gain at least some Senate Republican votes by linking Trump’s actions to a vivid description of the violence, which resulted in five deaths and sent lawmakers fleeing for safety.
However, Trump’s lawyers say the trial should not be held at all because the former president is now a private citizen. They argue that he did not incite the violence when he told his supporters to “fight like hell” to overturn his defeat.
HOW DOES THE TRIAL WORK?
As laid out by the Constitution, the House votes to impeach and the Senate then holds a trial on the charge or charges. Two thirds of senators present can convict.
The House appointed nine impeachment managers who will present the case against Trump on the Senate floor. Trump’s defense team will have equal time to argue against conviction.
The chief justice of the United States normally presides over the trial of a president, but because Trump has left office, the presiding officer will be Sen. Patrick Leahy, D-Vt., who is the ceremonial head of the Senate as the longest-serving member of the majority party.
Once the senators reach a final vote on the impeachment charge — this time there is just one, incitement of insurrection — each lawmaker will stand up and cast their vote: guilty or not guilty.
HOW LONG WILL THE TRIAL LAST?
Likely more than a week. The agreement between Senate leaders provides for up to 16 hours for both prosecutors and the defense to make their arguments, starting Wednesday, with no more than eight hours of arguments per day. Later, there will be time for senators to ask questions, and there could be additional procedural votes.
Under the agreement, the trial will open Tuesday with four hours of debate on whether the trial is constitutional. The Senate will then vote on whether to dismiss the charge against Trump. If that vote fails, as expected, the House managers will begin their arguments Wednesday and continue into Thursday.
Trump’s lawyers are likely to begin their arguments Friday and finish Saturday. That almost certainly means a final vote on Trump’s conviction won’t happen until next week.
Trump’s first impeachment trial, in which he was acquitted on charges that he abused power by pressuring Ukraine to investigate now-President Joe Biden, lasted almost three weeks. But this one is expected to be shorter, as the case is less complicated and the senators know many of the details already, having been in the Capitol during the insurrection.
And while the Democrats want to ensure they have enough time to make their case, they do not want to tie up the Senate for long. The Senate cannot confirm Biden’s Cabinet nominees and move forward with their legislative priorities, such as COVID-19 relief, until the trial is complete.
WILL THERE BE WITNESSES?
It appears unlikely, for now, though that could change as the trial proceeds. Trump himself has declined a request from the impeachment managers to testify.
While Democrats argued vociferously for witnesses in the last impeachment trial, they were not allowed to call them after the GOP-controlled Senate voted against doing so. This time, Democrats feel they don’t need witnesses because they can rely on the graphic images of the insurrection that played out on live television. They also argue that the senators were witnesses themselves.
If the managers do decide they want to call witnesses, the bipartisan agreement for the trial allows them to ask for a vote. The Senate would have to approve subpoenaing any witnesses for the trial.
WHAT WILL BE TRUMP'S LAWYERS' ARGUMENTS
His lawyers in a 78-page memorandum on Monday detailed a range of legal and factual arguments that they intend to make at trial. Here are some of them:
• Argument: Trump Did Not Incite the Insurrection | Defense lawyers are adamant that Trump did not incite the riot when he addressed a huge crowd of supporters at a rally that preceded it. They accuse House impeachment managers of cherry-picking Trump’s statements from an hourlong speech by highlighting only those that Democrats see as helpful to their case, pointing out repeatedly that he had told his supporters to “peacefully and patriotically make your voices heard."
They argue that even the statement that has attracted the most notoriety — “If you don’t fight like hell, you’re not going to have a country anymore” — was figurative in the general context of election security, not an invocation to violence. And they suggest Trump couldn't have himself incited the riot given the indications law enforcement had before Jan. 6 of the potential for violence that day.
But for Democrats, the focus on those specific statements at the rally on the Ellipse ignores the cumulative impact of Trump's baseless, weekslong efforts to call into question the results of the presidential election, and his urging of supporters to come to Washington on the day that the Senate was set to certify the results of Joe Biden's victory.
There was no widespread fraud in the election, as Trump claimed falsely over several months and again to his supporters just before the insurrection. Election officials across the country, and even then-Attorney General William Barr, contradicted his claims, and dozens of legal challenges to the election put forth by Trump and his allies were dismissed.
• Argument: His Speech is Protected | The Trump legal team plans to lean on the Constitution in multiple ways, including by arguing that Trump enjoyed First Amendment protections in everything he said to his supporters. “The fatal flaw of the House’s arguments is that it seeks to mete out governmental punishment — impeachment — based on political speech that falls squarely within broad protections of the First Amendment,” the lawyers say. In a seminal Supreme Court case, Brandenburg v. Ohio, the justices held that the government can suppress speech that is designed to produce imminent lawless action and is likely to do so. But Trump's lawyers say his words at the Ellipse don't come close to meeting that standard. In their own filing Monday, House Democrats say the First Amendment defense is lacking since Trump was not impeached for expressing an “unpopular political opinion” but rather because he “willfully incited violent insurrection against the government.”
“Rights of speech and political participation mean little if the President can provoke lawless action if he loses at the polls” the Democrats wrote.
• Argument: The Trial itself is Unconstitutional | This is disputed among legal scholars, but Trump's legal team plans to argue that the trial itself is unconstitutional because he is no longer in office. They say the Constitution does not extend the power of impeachment against a “private citizen.” They insist that conviction at an impeachment trial requires the possibility of removing the defendant from office. Now that Trump is out of the White House, they say, there is no legal basis for such a trial.
Not so, say Democrats, who say there is indeed historical precedent — albeit not for a president — to conduct an impeachment trial for someone no longer in office for acts committed while that person was in office. They argue there is no “January exception” for a president's final days in office.
Their argument got a boost Sunday when Charles Cooper, a conservative Washington lawyer with deep ties to the Republican legal community, wrote in a Wall Street Journal opinion piece that a trial of Trump did indeed pass constitutional muster.
WHAT WOULD ACQUITTAL MEAN FOR TRUMP?
A second impeachment acquittal by the Senate would be a victory for Trump — and would prove he retains considerable sway over his party, despite his efforts to subvert democracy and widespread condemnation from his GOP colleagues after Jan. 6.
Still, acquittal may not be the end of attempts to hold him accountable. Sens. Tim Kaine, D-Va., and Susan Collins, R-Maine, floated a censure resolution after last month’s vote made clear that Trump was unlikely to be convicted.
While they haven’t said yet if they will push for a censure vote after the impeachment trial, Kaine said last week that “the idea is out there on the table and it may become a useful idea down the road.”
(With inputs from agencies)