DONALD TRUMP accounts for half of all presidential impeachments. He holds the unique distinction of having been impeached twice, compared with once each for Andrew Jackson and Bill Clinton. None has been convicted at trial (the constitution dictates that the House impeaches a president and the Senate tries him). Mr Trump’s acquittal took place almost exactly one year ago; his second trial begins on February 9th. The evidence against him is perhaps even more damning this time than last, but his hold on his party is just as strong, and there is little reason to expect a different outcome.
Mr Trump’s previous impeachment trial centred on whistleblower testimony, a complex network of diplomats in multiple countries and a mountain of evidence. This one hinges on something that happened in plain view: the invasion of the Capitol on January 6th by Trump supporters intent on stopping Congress from certifying the electoral victory of Joe Biden in November. Congress does this after every presidential election, and it is usually a dull, pro-forma affair. This year, however, supporters of the defeated president stormed the legislature, resulting in the deaths of five people, including a police officer. Well over 100 people have been arrested. At issue in this week’s trial is the extent to which Mr Trump bears responsibility for the seditious violence enacted by his supporters.
The House approved a single article of impeachment against Mr Trump on January 13th. Ten Republicans joined the chamber’s Democrats in approval, making it the most bipartisan presidential impeachment vote in American history. That article, and a brief filed by the nine Democrats prosecuting the case in this week’s trial, argue that Mr Trump incited and is responsible for the insurrection.
He spent months claiming that he, not Mr Biden, won last November’s election, which was “stolen” from him. Multiple courts across America found no evidence to sustain this claim, yet he continued making it—and leaning on elected officials in battleground states to violate state law and declare him the winner. Some Republican officials who upheld the law received death threats from Trump supporters; Gabriel Sterling, a Republican from Georgia, warned, “someone’s going to get killed” because of Mr Trump’s incendiary rhetoric. Mr Trump did not temper it. He told his supporters to attend a “Big protest in D.C. on January 6th. Be there, will be wild!”
The crowd at that rally, the Democrats’ brief charges, “included many who were armed, angry and dangerous.” Before Mr Trump addressed it, Rudy Giuliani, his erratic lawyer, called for “trial by combat”, and Donald Trump junior warned Republicans who might vote to certify the election results—as they were legally bound to do—“we’re coming for you.” Mr Trump appeared, telling the crowd to “fight like hell”. Then, the Democrats’ brief charges, he “aimed them straight at the Capitol, declaring, ‘You’ll never take back our country with weakness. You have to show strength, and you have to be strong.’” This amounted to incitement, Democrats argue in their impeachment resolution, which “threatened the integrity of the Democratic system, interfered with the peaceful transition of power, and imperilled a coequal branch of power”—all of which justifies impeachment.
The brief filed by Mr Trump’s attorneys offers two main counter-arguments. The first is that the proceeding is unconstitutional because Mr Trump is no longer in office. This argument rests on a hyperliteral reading of the constitution’s impeachment sections, which state in part, “judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy an office of honour.” The “and”, Mr Trump’s lawyers argue, renders current office-holding a precondition of adjudication—a claim at odds with history: the Senate tried (and acquitted) William Belknap, a secretary of war, on August 1st 1876, four months after he left office.
The second counter-argument is that Mr Trump’s speech to the January 6th rally, and his claims that the election was “stolen” from him, are both protected by the free-speech clause of the First Amendment. His lawyers stop short of endorsing his claim of having won the election, but argue that “insufficient evidence exists upon which a reasonable jurist could conclude” that his statements were either true or false. Of course, plenty of presidential statements could be both protected by the First Amendment and potentially impeachable. A president who said, for instance, that “China should invade America by way of the west coast ports; I’ve stood the army down” would probably not be long for office. This argument resembles Mr Trump during his time in office in failing to recognise that a president’s words matter more than those of an ordinary citizen. It is one thing for a radio-show caller to claim the election was stolen and urge a march on the Capitol; it is quite another for a president with the full weight of his office behind him to do so.
The trial will probably be quick, perhaps a couple of weeks. The outcome is in little doubt. Late last month, all but five Republican senators backed a motion by Rand Paul of Kentucky asserting that the proceeding is unconstitutional. The evidence is not complex, and the Biden administration is keen to get the Senate back to confirming judges and voting on its legislative agenda. Mr Trump’s lawyers declined an invitation for their client to testify in his own defence. Little would be gained by his appearance. His lawyers’ arguments will probably provide Republicans with enough justification to acquit.