First Up at Trump’s Impeachment: Can a Former President Stand Trial?

The first issue that will be debated in the opening hours of former President Donald J. Trump’s impeachment trial on Tuesday will be the question of whether it is constitutional to put an impeached former president on trial.

The politics around the question are significant. Republicans have argued that the proceeding is unconstitutional, and by doing so, avoided addressing whether Mr. Trump committed impeachable offenses in his role in the Capitol riot.

Senate Republicans who voted last month to dismiss the trial as unconstitutional came under pressure on Sunday to re-evaluate their position when a leading conservative constitutional lawyer, Charles J. Cooper — who has been a close ally and adviser to Republican senators like Ted Cruz of Texas — argued in a Wall Street Journal op-ed that their claims about the constitutionality of the proceeding were unfounded.

The Senate has set aside four hours to debate this issue on Tuesday. Here’s what you need to know.

What have Republicans said?

House Democrats, who were joined by 10 Republicans, voted to impeach Mr. Trump a week before he left office for “incitement of insurrection.”

The impeachment put pressure on Senate Republicans to either condone or repudiate Mr. Trump’s conduct. Some set aside the question to instead focus on the process itself, arguing that whether or not Mr. Trump’s actions constituted high crimes and misdemeanors, the Senate could not try him because the Constitution does not allow a former president to stand trial for impeachment.

Two weeks ago, Senator Rand Paul of Kentucky forced a vote on the issue, moving to challenge the trial as unconstitutional. All but five Republicans sided with him. Democrats and constitutional scholars responded by arguing that the Republicans were simply clinging to a politically expedient argument to avoid crossing Mr. Trump, who remains popular among Republican voters.

The Trump Impeachment ›

What You Need to Know

    • A trial is being held to decide whether former President Donald J. Trump is guilty of inciting a deadly mob of his supporters when they stormed the Capitol on Jan. 6, violently breaching security measures and sending lawmakers into hiding as they met to certify President Biden’s victory.
    • The House voted 232 to 197 to approve a single article of impeachment, accusing Mr. Trump of “inciting violence against the government of the United States” in his quest to overturn the election results. Ten Republicans joined the Democrats in voting to impeach him.
    • To convict Mr. Trump, the Senate would need a two-thirds majority to be in agreement. This means at least 17 Republican senators would have to vote with Senate Democrats to convict.
    • A conviction seems unlikely. Last month, only five Republicans in the Senate sided with Democrats in beating back a Republican attempt to dismiss the charges because Mr. Trump is no longer in office. On the eve of the trial’s start, 28 senators say they are undecided about whether to convict Mr. Trump.
    • If the Senate convicts Mr. Trump, finding him guilty of “inciting violence against the government of the United States,” senators could then vote on whether to bar him from holding future office. That vote would only require a simple majority, and if it came down to party lines, Democrats would prevail with Vice President Kamala Harris casting the tiebreaking vote.
    • If the Senate does not convict Mr. Trump, the former president could be eligible to run for public office once again. Public opinion surveys show that he remains by far the most popular national figure in the Republican Party.

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