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With U.S. Vice President Mike Pence refusing to invoke the 25th Amendment, the prospect of a second impeachment trial for Donald Trump is looming. This Wednesday, January 13, the Democrats, led by the Speaker of the House of Representatives Nancy Pelosi, should unsurprisingly vote to indict the president.
In the indictment article, signed by at least 180 parliamentarians according to the elected Democrat Ted Lieu, he is targeted for having “deliberately made statements” which encouraged the invasion of the Capitol building and thus “seriously endangered the security of the United States and its institutions of government ”.
This is the first time that such a procedure has been launched twice against a president during his term of office. Donald Trump had already been indicted at the end of 2019 for the Ukrainian case. A procedure at the end of which he was finally acquitted. It is also the first time that a US president has faced impeachment so close to the end, Joe Biden’s nomination is scheduled for January 20. The deadlines therefore appear to be very short, while this type of procedure can take several weeks.
“In reality, Democrats have no choice after what happened on January 6. They are forced to launch impeachment for issues of credibility and stability of American democracy. As elected officials, it is a responsibility that falls to them at the same time as they must face the pressure of their democratic electorate ”, explains Tanguy Struye *, professor of international relations at UCLouvain, specialist in the United States. , joined by The HuffPost. In the history game, it is therefore important that the events of January 6 do not remain without a politico-judicial response. But what history also says is that there is no precedent for this exceptional configuration.
Dismissed after January 20?
If Donald Trump leaves the White House without being tried, will the trial still be able to continue? Can a former president be impeached even after leaving office? “Even if it can go very quickly given the nature of what happened on Capitol Hill, a judgment before January 20 still appears very complicated, but the possibility of continuing the procedure after January 20 is not not decided and arouses debates among constitutional law specialists ”, explains Tanguy Struye.
In fact, it is the majority in the Senate that decides to start the trial, but this remains with the Republicans as long as Georgia’s two new Democratic senators have not taken an oath. The south-eastern state nevertheless has until January 22 to certify the results of these elections.
In a long article, the Washington Post precisely questioned several specialists on the role of the Senate and the interpretation of Article II of the Constitution, the one which frames dismissal. If their opinions diverge, a large majority still believe that continuing the procedure after January 20 will in any case be complicated.
“The possibility of condemning the public conduct of a former government official by impeachment and barring him from occupying a future function by a conviction always seems to fall within the authority of the House and the Senate”, notes Keith E. Wittington, a professor of politics at Princeton University before adding: “However, it would be very difficult to persuade the Senate to convict on the basis of such an indictment, and the House would face criticism on an abuse of power, (…) but I do not think that such an indictment can be strictly excluded constitutionally speaking ”.
If there is no precedent in presidential matters, similar situations have given rise to trials in the Senate in history. In 1876, the Senate ruled that it was in its role in proceeding with the impeachment trial of former Minister of War William Bar, who had just resigned. Just like in 1797, when the American upper house tried a senator after his expulsion.
Likewise, on Franceinfo, Jean-Eric Branaa, lecturer at Paris 2 Panthéon-Assas and doctor in American civilization, recalls the more recent case of an American judge: “He resigned the very day of his indictment. The process continued because what Congress wanted at the time was to make him ineligible. And this is what parliamentarians have in mind at the moment in the United States, is to make Donald Trump ineligible so that he is not there in 2024 ”.
The Senate to block Trump in 2024?
If it is indeed the House of Representatives which imposes the charges, the future of the procedure lies on the other hand in the hands of the Senate. It is he who will decide to continue the trial after January 20 and, possibly, to convict. Democrats will therefore have to be very convincing with of their Republican colleagues.
“It doesn’t matter if the process goes fast or takes several weeks, it will still take two-thirds of the Senate to vote in favor of impeachment. It is not won, the Democrats will have to rally 17 Republicans to their procedure. Even if several senators from the GOP (Great old party) have dissociated themselves from Donald Trump, they will have a good time saying that it is better to stop the procedure. This would prevent them from having to comment on it and therefore having to deny completely Donald Trump’s legacy and electoral base”, Explains Tanguy Struye.
Especially it is only after having found Trump guilty and pronounced his impeachment that the Senate will be able to pronounce on his ineligibility in 2024.
In this cumbersome procedure, it is not said, moreover, that all Democrats stand united, particularly within Joe Biden’s teams. The newly elected president simply said that the dismissal was a decision of the Senate. “Joe Biden has no interest in Donald Trump continuing to occupy the media space at the start of his mandate when it is precisely a chapter that he seeks to close to reunite the United States and the Americans” , believes Tanguy Struye.
* “Foreign policy put to the test of fragmentation” (Peter Lang), Tanguy Struye de Swielande, Valérie Rosoux, Tanguy de Wilde (dir.)
This text was originally published on the HuffPost France.