Impeachment: How Democrats fast-tracked 'incitement of insurrection' charge against Trump

George Petras and Janet Loehrke, USA TODAY

House Democrats and 10 Republicans voted 232-197 Wednesday to impeach President Donald Trump, the result of a second, fast-paced attempt to force him from office after a mob of his supporters attacked the U.S. Capitol on Jan. 6.

The article, introduced Monday, charges Trump with incitement of insurrection, citing his statements at a rally shortly before the Capitol was breached. It notes a phone call Trump made Jan. 2 to Georgia election officials urging them to find enough votes to overturn the state presidential election results.

Though Trump is the first president in U.S. history to be impeached twice, it's unlikely enough senators will vote to convict, making the impeachment more symbolic than punitive. Trump will leave office at noon Jan. 20.

Now the focus shifts to the Senate, which could vote to convict Trump and bar him from holding federal office in the future. That provision "could be spelled out as part of a Senate conviction," says Charles Tiefer, professor of law at the University of Baltimore.

Constitutional scholars say a second, faster impeachment was without precedent. "We're really walking on untrodden ground now," says Theodore Shaw, director of the Center for Civil Rights at the University of North Carolina School of Law. "The stated priority is to remove the president before he can do more damage."

In December 2019, the House impeached Trump for alleged abuse of power and obstruction of Congress, based on his attempts to pressure Ukraine to investigate the son of an election rival. The Senate acquitted Trump on both charges in February 2020.

Monday's charge was filed under "Section 3, the insurrection or rebellion clause of the 14th Amendment," says Aziz Huq, a professor at the University of Chicago Law School. “Even (Republican Senate Majority Leader Mitch) McConnell characterized the Capitol riot as a ‘failed insurrection.’”

Impeachable offenses include treason, bribery and other high crimes and misdemeanors. Impeachment by the House is the equivalent of being indicted. The Senate holds a trial and renders a verdict.

Expedited impeachments have been used against a few officials but never against a president.

"The rules aren't really designed for impeachment in five days," Huq says. "The Constitution doesn't tell us that much. So the House and Senate would have to amend their impeachment procedures."

Though legal experts disagree whether a president can be impeached once he's left office, some note the Constitution doesn't prohibit it.

In 1876, the House impeached William Belknap, war secretary for President Ulysses S. Grant. Belknap resigned moments before the House voted on articles of impeachment. The House nevertheless voted to impeach, though Belknap was acquitted in the Senate.

If convicted, Trump would lose his presidential pension and money for office space and staff, in addition to the possibility of being prevented from holding office in the future. He would, however, keep his Secret Service protection.

Here are the differences between the first and second impeachments:

Impeach and acquit or convict

Impeachment is a nine-step process:

In the House

Now: There were 6 days from the impeachment vote until Trump’s last day.

2019: Pelosi announced an official impeachment inquiry Sept. 24. The House voted to charge Trump with abuse of power and obstruction of Congress on Dec. 18 – 85 days later. On Jan. 15, 2020, the House approved sending articles to the Senate, 113 days after the inquiry announcement.

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Now: The House was scheduled to recess but decided to meet. Pelosi introduced the article of impeachment, and the Judiciary Committee debated before sending it to the full House, which voted to impeach. Representatives will appoint impeachment managers and decide when to send the article to the Senate.

2019: The House decided how to proceed Oct. 31. The Intelligence Committee held hearings on Ukraine and forwarded findings from all six investigative committees to the Judiciary Committee, which decided Dec. 13 which articles would be sent to the Senate. The full House voted Dec. 18.

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Now: No House committee investigations took place.

2019: Six House committees, all with Democratic majorities, investigated the president.

Since Democrats control the House, and some Republicans have voiced support for impeachment, an overall "yes" vote from the House was likely.

In the Senate

The Republican-majority Senate is adjourned until Jan. 19, the day before President-elect Joe Biden's inauguration.

The Senate expects to receive an impeachment article from the House on Jan. 19 or 20, according to a memo from McConnell, R-Ky., obtained by The Washington Post. The Senate could begin the trial as soon as Jan. 20 or 21.

The House could send the article after Democrats take charge Jan. 22.

Whenever it's sent, "once the impeachment clears the House, the Senate is duty-bound to act," Shaw says.

McConnell would decide how to hold a trial, but any rule changes would need unanimous Senate consent. These include arguments from attorneys representing the president and the House and the ability of senators to question both.

Trump's first Senate trial took 18 days. Trump was acquitted on both charges in February 2020.

Everything changes Jan. 22

If the Senate does nothing or the House delays sending the impeachment to the Senate until after Biden takes office, a trial is more likely because Democrats gain power in the Senate by Jan. 22:

Senate Democrats would need support from at least 17 Republicans to get the 67 votes needed to convict Trump – and to prevent him from holding office again.

If the Senate waits long enough, 100 days as suggested by Rep. James Clyburn, D-S.C., there may be no trial, Tiefer says. "In that 100 days, they may not decide to have a trial – tempers may cool off, they may think there's no plus side."

Pelosi said the House would introduce an article of impeachment this week if Trump refuses to resign and if Vice President Mike Pence doesn't use the Constitution's 25th amendment to strip Trump of presidential powers. Pence has opposed using the amendment.

Even if the amendment had been used, Trump could still run for office in 2024.

SOURCE USA TODAY Network reporting and research; The Associated Press; Congressional Research Service; constitution.congress.gov; U.S. House of Representatives; U.S. Senate; Charles Tiefer, University of Baltimore law professor; Jeremy Mayer, professor, Schar School of Policy and Government, George Mason University

PHOTOS AP; Getty Images and AFP

This article originally appeared on USA TODAY: Impeachment: How Democrats might fast-track removing Trump from office