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How We’re Thinking About Impeachment

Oral arguments are now underway in the second impeachment trial of former President Donald Trump.

In one of the trial’s first major flashpoints, the Democratic House impeachment managers (the prosecutors, basically) beat back a challenge from Trump’s legal team, which argued that a president can’t be tried on impeachment charges after leaving office.

But the vote this afternoon wasn’t all bad news for the former president: Forty-four Republican senators backed his lawyers’ argument that the trial was moot. While that wasn’t enough to throw out the trial, it would be more than enough to acquit him, since conviction requires a two-thirds majority.

If you haven’t already listened, today’s episode of “The Daily” includes an informative conversation between Michael Barbaro and Jim Rutenberg, a writer at large for The Times, outlining the legal strategies that each side has signaled it will pursue this week.

But to dive in a little further on the political implications of the trial, I spoke to Lisa Lerer, my newsletter-writing colleague, who has been closely following the proceedings in Washington — and talking to insiders about what it might mean for each party’s future.

Hi Lisa. Almost exactly a year ago, the Republican-controlled Senate acquitted Trump in his first impeachment trial. Only one Republican voted to convict him. Democratic lawmakers must feel they’ve got a stronger shot this time, since they’re trying him again. What do they think makes this different, and how have they adjusted their strategy since last year’s trial?

It’s hard to find a Democrat who believes the trial will result in a conviction. But the sense within the party is that the siege on the Capitol was such an extraordinary threat to democracy that the former president must be held accountable for stoking it. To let Trump’s rhetoric go unpunished, they say, would set a dangerous precedent of impunity for future presidents.

That’s why you saw the Democratic impeachment managers open their arguments today by showing some graphic videos from the attacks. They want to remind Americans — and the senators, who are both jurors and witnesses — how shocking and violent the events of Jan. 6 really were.

Trump ran into some complications putting together his legal team for this trial. His squad doesn’t include any of the lawyers who made headlines (some of whom are now facing lawsuits themselves) for defending his baseless claims of election fraud. Who’s defending Trump, and what do we know about their strategy?

Trump is being represented by two lawyers, David Schoen and Bruce Castor. Much of their argument will seemingly center on the idea that the Senate lacks the constitutional power to try a former president because, by definition, he cannot be removed. (The president was impeached by the House before he left office, and most legal scholars agree that a former president can be tried by the Senate even after leaving office.)

They also argue that Trump’s falsehoods about a stolen election, delivered at a rally outside the White House before the pro-Trump mob mounted its assault, are protected by the First Amendment.

The early signs suggest that the House managers face an uphill climb in persuading enough Republican senators to vote for impeachment; they would need 17 to join the Democrats to achieve the necessary two-thirds majority. Do they stand a chance?

Frankly, it looks unlikely. In the Senate last month, 45 Republicans voted for a proposal that would dismiss the trial as unconstitutional because Trump is no longer in office. Of course, we don’t know what new information will come out in the trial. There could be something that’s so incendiary that Republicans — or at least 17 of them — decide to condemn Trump.

A few Republican senators have expressed openness to convicting Trump. If they do, are any of them at risk of facing a pro-Trump Republican challenge for their Senate seat anytime soon? Or censure from their state parties, like some pro-impeachment House Republicans faced?

Any Senate Republican running for re-election who voted for a conviction would likely face a primary challenge from the Trump wing of the party. That’s part of the reason we haven’t seen many of those senators taking such a position.

Of those who’ve expressed any kind of openness to a conviction, several (Senators Susan Collins, Mitt Romney and Ben Sasse) aren’t up for re-election in 2022. Others (Senators Richard Shelby and Rob Portman) have announced their intention not to run for re-election. Still, those senators could face other repercussions: In Nebraska, the state Republican Party is moving forward with a censure resolution against Sasse.

Whether or not Trump is ultimately convicted, each side will certainly be trying to press its case in the court of public opinion. Is there a way that Democrats could fail to convict him, but still come out on top in that realm? Alternatively, is there a scenario where Trump could lose this trial and then flip it into a “win” with his supporters?

Both Trump and Democrats are likely to claim a win of sorts. Democrats will argue to their base that they held the former president accountable for his actions. Trump and his allies will dismiss the whole trial as a witch hunt, an unconstitutional sham by overzealous liberals that they’ll use to whip up their base.

But there are plenty of politicians in both parties who hope to move past this second impeachment as quickly as possible. The Biden administration wants to push forward with its plans to help control the pandemic and lift the economy. And there’s a portion of the Republican Party that would like to escape the political vise of Trump’s inflammatory words.

The House and Senate midterms are more than 20 months away. How might the Senate’s final vote affect the elections?

For now, many Democrats believe that 2022 will be a referendum on “needles and checks” — the economy and their efforts to distribute the vaccine. Could Trump try to use the impeachment to rally his base? Maybe. Or will he have lost some of his juice — and interest — in Republican politics? Sure, that could also happen. It’s really hard to know now what his role will be and how impeachment could affect it.

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