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Friday, January 15, 2021

Couple of Thoughts About the Impeachment Trial

The upcoming trial will look rather different from last year's version in a couple of respects.

  1. There will a lengthy argument about whether the trial can occur at all. This is because of the argument that an ex-President cannot be tried by the Senate. If more than one-third of the Senate agrees with this legal argument, then the outcome will be certain--acquittal. This will therefore be an early tell for where things are going.
  2. If the trial goes forward, there will be witnesses. They will testify about what occurred at the Capitol. In theory, the ex-President himself could be a witness. Watching Chief Justice Roberts rule on objections to questions from counsel will be interesting, to say the least. As I pointed out in a post last year, he has never presided over a real trial before.
  3. Last year the Chief Justice commented at one point that he did not think that he had the power to break tie-votes, as Chief Justice Chase did in 1868. That seemed like a bit of trivia then, but that precedent will presumably bind the Chief Justice in this trial.

More broadly, there will probably more of an ebb-and-flow to this trial. Last year both parties were dug into their trenches. This time more Republicans will vote to convict, though probably not enough.

Posted by Gerard Magliocca on January 15, 2021 at 10:29 AM | Permalink


Can D managers/prosecutors call Trump as a hostile witness and subject him to cross-examination style leading questions? If yes, can Trump assert the 5th? If yes, must he assert the 5th at the trial in public? If he asserts the 5th, can the senators use his invocation against him?

Posted by: John | Jan 21, 2021 10:46:59 PM

I hope there is a full-fledged trial, with the prosecutors putting on whatever evidence they have about what President Trump knew in advance about the plans to storm the capitol, what he said to his supporters, and any other evidence they may have about his intentions and state of mind, and President Trump puts on whatever evidence he wants, whether about his intentions or about election fraud, whatever he wants. Let it all hang out.

Posted by: Douglas B. Levene | Jan 18, 2021 11:35:59 AM

Doesn't the new narrative that the 'attack' on the capitol was planned and premeditated pretty much rule out incitement?

Posted by: thegreatdisappointment | Jan 16, 2021 6:14:50 PM

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Posted by: Daniel Tan | Jan 16, 2021 5:44:06 AM

There's actually another option here, for which there is state-level precedent.

Harrison Reed was the first governor of Florida when it was readmitted after the Civil War. He is actually one of only two governors ever to be impeached twice*. The first impeachment in 1868 was overturned in the state Supreme Court due to a lack of a quorum in the Senate voting for conviction.) His second impeachment was in 1872, but following the impeachment the legislature adjourned and never held a trial. Reed had left town, assuming that his authority as Governor was suspended due to the impeachment, but then returned after the adjournment and retook office. He then sought and received a ruling from the state Supreme Court that he was still the rightful governor, from which he proceeded to finish out his term.

Other governors, such as Adelbert Ames of Mississippi and Henry Warmoth of Louisiana, have been impeached but them left office (through resignation and the scheduled end of his term, respectively) and no trial was held. Even if you take the side that the Senate can hold an impeachment trial after the President leaves office, there is no requirement that they do so.

* The other governor was Henry Johnston of Oklahoma in the 1920s.

Posted by: Observer | Jan 15, 2021 11:32:29 AM

#1 makes sense though it is not really by rule necessary.

Repeatedly, people vote against the something in the first step but once accepted by majority rule, they vote differently in the second.

So, e.g., some senators voted against giving Mattis a waiver, but only one against his nomination at the end. Judges also have said "well, I don't think this case should be here, but a majority did, so here is my stance on the merits." And, have various takes there.

OTOH, it is a good avoidance mechanism. If they do so on that ground alone, that gives more force to the 14A argument being fully addressed. Also, if not enough Republicans will vote to convict (or stay away), the trial this time will still be more substantive given Democrats will be in control and have a concern to not have a shadow of a real trial.

As to ties, I don't know what will arise to cause problems there. A few Republicans are likely to join with the Democrats on any procedural issue. But, it might come up at some point.

Posted by: Joe | Jan 15, 2021 11:22:19 AM

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