EIn impeachment is legal in its form, that is: The indictment in the House of Representatives – the first stage – corresponds to the hearing before a grand jury. This consultation has to meet less stringent standards than the actual procedure.
And it is enough for a majority (no matter how small) to raise their hands at the end. After all, it’s just a matter of finding out whether the prosecution can produce enough evidence to bring the accused to trial.
The second stage of the impeachment then corresponds exactly to the legal process as we know it from American films. The senators play the role of jury. The only difference to a regular American process is that your vote does not have to be unanimous.
Two thirds of the votes are sufficient. Because the only question is whether the accused may remain in office – or whether he may ever run for public office again.
Trump never goes to jail
It’s not about punishment. Donald Trump, who refuses to testify under oath in the impeachment proceedings against him, would not have to go to jail even if a two-thirds majority in the US Senate came to the conclusion that he had committed “treason, high felony or misdemeanor “Made guilty. Incidentally, all of these terms – with the exception of the term “treason”, which is interpreted very narrowly by the American constitution – are deliberately vaguely defined. Constitutional lawyers still argue about its importance.
It is clear, however, that the founding fathers of the American republic deliberately did not place impeachment proceedings in the sphere of the courts, but in that of the elected representatives of the American people. The Chairman of the Supreme Court should actually preside over the Senate proceedings, but that is a purely ceremonial function: he has nothing to say there.
The Chief Justice, John Roberts, has already given notice that he is not available as Master of Ceremonies. In his place, Senator Patrick Leahy – a Vermont Democrat who serves as the interim Senate President – will lead the proceedings.
The number of presidents evicted from the White House by impeachment remains zero. The first president to be impeached was Andrew Johnson of Tennessee (1868). The process failed in the Senate due to a missing vote.
The second president was Bill Clinton (1998). His trial ended in a clear Senate acquittal, although the offense – Clinton lied to Congress under oath – was proven beyond doubt. Donald Trump is the first president to have been impeached twice.
The first time it was about that he should have abused his position as president to blackmail a foreign power – Ukraine – so that it would help him domestically in the election campaign. Beyond all doubt, it was clear that the charge was true. The recording of his telephone conversation with the Ukrainian President Zelensky was public. But the Senate was dominated by the Republicans, and so the Senate acquitted him.
The allegation in the second impeachment against Donald Trump is, in one word: riot. In their indictment, the majority of MPs in the House of Representatives speak of a “breach of loyalty of historic proportions”.
Citing the Constitution, she asks the rhetorical question: “If it is not an impeachable offense that someone incites a seditious mob against a House and Senate congress after losing an election, what then?”
A visit from three top politicians was enough
There was never any impeachment proceedings against Richard Nixon. It was unnecessary: after it became clear what crime he was guilty of as president, his party – the Republican – broke with him. It was enough that two senators and a member of the House of Representatives visited him at the White House (1974) and told him that the game was over – Nixon announced his departure.
Although impeachment is a political, not a legal process, the accused president can be represented by lawyers. Donald Trump has already fired his first legal team. That team’s strategy would have been to declare impeachment superfluous – after all, Trump was no longer in office.
From a legal point of view, a highly dubious argument. For one thing, there is a precedent – William Belknap, who served as Secretary of War in Ulysses S. Grant’s cabinet, was removed from office for corruption after resigning (tearfully). On the other hand, the impeachment against Trump was initiated when he was still president.
But Donald Trump didn’t want a defensive, but an offensive strategy anyway: He is still sticking to the claim that he – not Joe Biden – won the 2020 election. Donald Trump’s new legal team argues as follows: The 45th President had only exercised his right to freedom of expression when he stirred up the mob to march on the Capitol.
But here too, skepticism is appropriate. According to a landmark judgment of the Supreme Court (“Brandenburg v. Ohio”, 1969) it is legal in the United States to call for the overthrow of the government. But if a call to violence is followed by “immediate illegal acts”, the right to freedom of expression cannot be invoked.
Donald Trump’s new lawyers are named Bruce Castor and David Schoen. Castor was a former prosecutor – in this capacity he refused to open a case against the sex offender Bill Cosby in 2005. Schoen was legal counsel for criminal policy advisor Roger Stone, who was convicted and pardoned by Donald Trump in 2021.
Anyone who leaves the Trump League is ostracized
If you want to know how the proceedings against Donald Trump will end, you only have to consider how the Republican Party is handling Liz Cheney and Marjorie Taylor Greene. Liz Cheney was one of ten Republican Congressmen who voted in the House of Representatives to initiate impeachment proceedings against Trump. The result: She was ostracized in the Republican Party and officially reprimanded in her home state of Wyoming.
The case is different with Marjorie Taylor Greene. She is a congresswoman from Georgia who believes in the anti-Semitic QAnon conspiracy religion. There is a video of her calling for blood to be shed. It spreads that the 9/11 attack and various school shootings were bogus events.
Mitch McConnell, the leader of the Republican minority faction in the Senate, has now distanced himself from it. But will more than a dozen Republican senators take on the supporters of Marjorie Taylor Greene? Probably not.
There would be a way out for them, however: The rules of impeachment state that two thirds of the senators who are physically present in the room must vote for impeachment. So if – for example – 20 Republican senators stayed away from the spectacle, you would only need the votes of 53 Senate members.
Besides the 50 Democrats, that could be the votes of moderate Republicans Mitt Romney, Lisa Murkowski and Susan Collins. But even such a maneuver would take courage. And the Conservatives in the United States in 2021 have so far hardly shown this courage.