Trump won’t be impeached, it’s inevitable

The most important thing to know about the “latest” impeachment of Donald Trump – he picks them up like Boris Johnson used to get parking tickets – is that he won’t be convicted. He will therefore not have certain of his post-presidential perks and pension withdrawn. Nor, on this occasion, will he be barred from holding elected office again. Current events will not prevent him from running in 2024, legally speaking.

Politically, there are consequences, though impeachment cuts both ways, just as it did first time around with the phone calls to the Ukraine looking for dirt on Joe Biden’s son, Hunter. A Democrat-controlled House of Representatives once again had no compunction in charging Trump – this time with incitement to insurrection over the storming of the Capitol on 6 January. On Tuesday, the action will move to the Senate, which will turn into a quasi-courtroom for the trial of the president. He won’t be there, but there will be plenty of evidence and arguments. The proceedings will be presided over by the longest-serving senator, Patrick Leahy (if Trump were still in office, the chief justice of the United States, John Roberts, would be presiding as he did in the first impeachment, in January last year). All of the 100 senators will act as jurors. The president will not be convicted, if only because that would require a two-thirds majority, and there are not enough Republicans who will side with the Democrats to find him guilty – as proved to be the case last time.

Still, there will be issues at stake. Because no president has been impeached after leaving office, there is no precedent, and the constitution is unclear on the issue, so the very validity of the proceedings will be questioned. The last time anything like this happened, in 1974, a prospective trial of Richard Nixon was avoided because he resigned before he was impeached, and then rapidly received a general pardon from his successor, Gerald Ford. It does not look as if President Biden will extend the same clemency.

Another issue will be whether Trump’s words and actions amounted to incitement. The facts, as the lawyers say, are not in dispute, and Trump’s speech at the rally and his tweets are all very much in the public domain. There may be witness accounts of his actions during the day, and other subpoenaed evidence. Plainly, Trump did not explicitly call on his supporters to invade the Capitol building and stop the ratification of the presidential election results via the formal count of the electoral college votes. The discussion will be around whether he did so in effect – and to what extent he was involved in the speeches of others, such as his son Donald Jr and Rudi Giuliani – to the extent that they were incendiary and tantamount to incitement to insurrection. The prosecution lawyers might even extend their case to the former president’s false and misleading claims of fraud and theft that he made before the polls had closed and which intensified in the weeks after.

On the other hand, Trump’s lawyers might seek to use the stage to revive the conspiracy theories about ballot-stuffing and fraud, turning the ex-president into the victim. Politically this would receive a sympathetic hearing among his base and confirm them in their sense of grievance. Trump, to them, would be a martyr. Whether such claims are admissible in this unusual court remains to be seen. Trump’s representatives and allies inside the court and outside will be testing the limits of legal procedure and the right to free speech.

What is more, Trump’s near-inevitable acquittal will be used by him to claim personal vindication, strengthen his argument that he is the victim of a vindictive Democrat action, and endow dubious credibility on his case that the election was stolen. Last time, he emerged to appear before the cameras, triumphantly clutching a copy of The Washington Post, of all papers, bearing the headline “Trump Acquitted”.

Along the line, though, Trump faces much more threatening legal cases – surrounding his financial and personal affairs – that are being pursued through lower courts now that he is a private citizen (impeachment being reserved for “treason, bribery and other crimes and misdemeanours”). Embarrassing and troublesome as any and all of these will be, the pattern of past episodes – the Mueller report on Russian collusion, Stormy Daniels, leaked income tax returns – suggests that Trump can do no wrong in the eyes of his base, who believe that the allegations are fabricated by enemies and upheld by crooked courts in any case, the same way that the events of 6 January were supposedly orchestrated “by antifa”. In short, Trump’s historic second impeachment changes nothing.