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VERIFY: Everything you need to know about former President Donald Trump's second impeachment trial

The Senate impeachment trial kicks off Tuesday, February 9. But what does it mean if Trump is already out of office? Here's what to expect.

WASHINGTON — Former President Donald Trump was formally impeached by the House of Representatives on January 13th for “high crimes and misdemeanors,” making him the first president to have been impeached twice.

This week, an impeachment trial began in the Senate to decide if Trump will be convicted for "incitement of insurrection.” House impeachment managers need 2/3rds of a vote in the Senate to formally convict President Trump.

It's a semi-confusing process that's never really been done before, which is why the Verify team is here to give you the answers. 

So, let's take a look.

THREE FAST FACTS:

  • The Senate impeachment trial started at 1 p.m. EST on February 9 and will last several days
  • Former President Donald Trump is the first U.S. president to be impeached twice. The second impeachment is focused on if Trump incited the insurrection that took place at the U.S. Capitol on January 6
  • House impeachment managers will try to establish that Trump is "personally responsible" for the deadly U.S. Capitol attacks, where Trump's legal team will try and establish that the trial itself is unconstitutional.

WATCH THE TRIAL LIVE HERE:

What's the difference between being convicted and being impeached?

Let's do a quick recap: the House of Representatives decides on impeachment. But it’s up to the Senate to decide whether or not Trump will be convicted. Normally, this would mean removal from office, but in this case, it’s a little different.

Although the two use similar terminology, an impeachment trial is very different from a criminal trial. An impeachment trial has only two outcomes: A conviction or an acquittal. 

"The conviction simply means that the person is removed from office," Robert Peck, a constitutional attorney and President of the Center for Constitutional Litigation said.

However, impeachment does not take the place of traditional legal proceedings if they are are related to criminal charges. 

So theoretically, it would still be possible for a president to be criminally convicted separately from the impeachment. 

So what was Trump impeached for?

President Trump will be the first U.S. president to be impeached twice and the first federal official to be tried for insurrection against the United States. 

The articles for impeachment this time around revolve around the question of if Trump was "personally responsible" for the insurrection at the U.S. Capitol on January 6. 

Prosection: The prosecution of House impeachment managers, which will be lead by Maryland's own Rep. Jamie Raskin, argue that yes, he was. They say that Trump was slow to condemn the violence of the mob on January 6, and that his speech to rioters prior to the assault (telling them to "fight like hell") only encouraged the violent attacks, therefore a violation of his oath to office and threatened national security. They also argue that Trump's continual mentions of a "rigged election"  and claiming to be the winner of the presidential race, interfered with the democratic process.

Defense: Meanwhile, Trump's legal team, lead by David Schoen and Bruce Castor, will argue the opposite, instead pointing at the legality of the trial altogether. They argue that Trump was using his First Amendment rights when speaking about the election, and say that there's no evidence that Trump knew rioters would storm the Capitol when he made his speech.

Have senators or other federal officials been charged with insurrection before?

Our sources for this one are Senate records and Constitutional law professor Dr. Mark Graber from the University of Maryland.

The answer is no one has been impeached and convicted of insurrection, people have been impeached and convicted, but not of insurrection," Graber told the Verify team. 

Impeachment is something that's done for members of the executive and judicial branches. Senators may be expelled, and representatives may be expelled, but they're not technically impeached.

This means there is a whole generation of senators and representatives that were expelled from office, but none of them faced a Senate impeachment trial.

Credit: AP
FILE - In this Thursday, Dec. 31, 2020, file photo, President Donald Trump arrives on the South Lawn of the White House, in Washington. A former Michigan resident has gotten hundreds of calls and texts from Trump supporters, demanding that the legislature reverse his defeat in the state. (AP Photo/Evan Vucci, File)


What time does the impeachment trial kick-off? How long will it go? 

Trump's second impeachment trial started at 1 p.m. EST on Tuesday, February 9, with hours of debate to start. There's a couple of different layers to the impeachment trial process:

  • Tuesday, Feb. 9: Senate voted on constitutionality. The Senate voted on whether they have the jurisdiction to actually hold a former president's trial. This happened after four hours of argument on the Senate floor, where each senator stated their reasoning.
  • Wednesday/ Thursday, Feb. 10 and 11th: Prosecution opening arguments began. Impeachment managers from the House of Representatives made their case against Trump. These cases can take no longer than 16 hours of argument total, which was spread out over two days.
  • Friday, Feb. 12: Defensive opening arguments begin. This is where Trump's legal team can state their ground, using the same amount of time as the prosecution to make their opening arguments. 
  • Saturday, Feb. 13: The president's counsel has up to eight hours per day for two days to present his case. 
  • Sunday/ Monday, February 15:  Senators ask their own questions. These questions aren't limited to one side or the other -- they can ask them to the House impeachment managers' side, or to Trump's legal team. It's an up to four-hour chance for Senators to get more information and clear up any questions of their own that they might not have been able to ask.
  • Week of February 15: Debating over witnesses.  The House impeachment managers can call witnesses, which depending on how many and if they decide to, can slow down the process. The Senate would need to approve and depose witnesses before they can actually testify.
  • If no witnesses called, a potential conclusion next week: The last step to the process would be for the Senate to move to their final vote.


Can Congress impeach and convict a president who is no longer in office?

RELATED: VERIFY: The differences between an impeachment conviction and a criminal conviction

Now that Trump is out of office, is it constitutional to try or impeach a former president for crimes committed while in office?

The answer is …  probably. It's just never happened before.

According to a report by the Congressional Research Service, most scholars agree that "Congress has authority to extend the impeachment process to officials who are no longer in office.”

But it is tricky, as this case is totally new territory and the Constitution hasn't been used to address something like this before, so there's not much guidance. That same CSR report said the Constitution, “does not directly address whether Congress may impeach and try a former President for actions taken while in office.”  

Is it possible a conviction from the Senate could send Trump to prison? 

We can Verify that no, the Senate does not have the right to issue a prison sentence. We turned to multiple legal experts for this one:

  •  Robert Peck, constitutional attorney and President of the Center for Constitutional Litigation
  • Dr. Mark Graber law professor at the University of Maryland

This goes back to highlighting the differences between impeachment and a criminal conviction, which we mentioned above.

"Impeachment is an entirely different process from the criminal process, even though it shares some of the words that describe the process," Rober Peck says. "The impeachment process has no impact whatsoever on whether or not there is a criminal trial."

The process for criminal trials in the United States is determined by the Constitution and U.S. Code. For impeachment trials, that means the Constitution allows the Senate to create their own rules.

Dr. Graber also explained that criminal trials judge guilt differently -- in a normal criminal trial, Dr. Graber says, a jury must decide that a defendant is guilty beyond a reasonable doubt. 

"In an ordinary criminal trial, the jury must be unanimous," Dr. Graber said, "The Constitution requires reasonable doubt... the Constitution doesn't set any standard [for impeachment.] Senators determine for themselves what the burden of proof is."

So we can Verify that while the Senate writes its own rules, they cannot impose jail time, fines or the death penalty in an impeachment conviction. An official can be removed from office and then criminally convicted of the same thing, but the Senate cannot impose criminal sentencing on them. That's left up to the courts.

For more of the intricate differences between a Senate impeachment trial and criminal conviction, check out this Verify explainer.

Does this mean Trump is barred from ever holding office again? 

Per the Constitution, we can Verify that yes, the Senate technically does have the power to prevent Trump from holding office again, but being impeached and convicted doesn't automatically disqualify you.

According to the Constitution, the Senate can vote on "the disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

If the Senate votes to convict him -- again, a vote that would require a two-thirds majority, far from a likely outcome -- then senators can then vote on whether Trump should be barred from holding office in the future. That vote would require a simple majority. 

But, there’s another route, thanks to section 3 of the 14th Amendment.

University of Maryland Constitutional Law professor Dr. Mark Graber says that section provides a lot of clarity to legal routes going forward.

"The 14th amendment is the big post-Civil War amendment," Graber said. “Section Three is the part we are concerned with. It says, well the short version is, anyone who participates in an insurrection is ineligible for state or federal office.”

This will require a majority vote in both the House and the Senate but does not require an impeachment conviction.

RELATED: VERIFY: How would the 14th amendment disqualify President Trump from running for office again?

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