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Trump Senate impeachment trial II: Everything you need to know

The former president is accused of "incitement of insurrection" for the attack on the Capitol.
Image: Illustration shows former President Donald Trump between red and teal strips of paper showing the Capitol and text reading \"insurrection\" and \"high crimes\"
Chelsea Stahl / NBC News

Donald Trump's second impeachment trial is scheduled to begin this week, and will look much different than the first.

Trump is the first president to be impeached twice by the House of Representatives, and he'll be the first former president to be put on trial in the Senate. Opening arguments are expected to begin Wednesday, and the trial is expected to last at least a week. Here's what to expect.

What's Trump charged with?

The House impeached Trump on Jan. 13 with a single charge: "incitement of insurrection" for allegedly encouraging the deadly Jan. 6 riot at the U.S. Capitol.

The article of impeachment cited Trump's monthslong false claims of election fraud and attempts to strong-arm state officials into changing the results of the Nov. 3 election, as well as his call for his supporters to gather for a rally ahead of the Electoral College vote count. It also cites the speech Trump gave his supporters as Congress began the count, urging them to go to the Capitol. He "willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol, such as: 'if you don't fight like hell you're not going to have a country anymore,'" the impeachment article says.

What's his defense?

The main defense put forward so far by Trump's lawyers is one that's already proven popular with Republicans — that he shouldn't be tried at all because he's no longer in office.

Democrats say that argument is legally flawed and counter to precedent, but 45 Republican senators signed on to a motion ahead of the trial arguing that the proceeding is unconstitutional. And the Senate is planning to hold a vote on that issue ahead of the start of the trial.

"In the alternative, the 45th president respectfully requests the Senate to acquit him on the merits of the allegations raised in the article of impeachment," his attorneys wrote in a defense filing.

What about Covid safety measures?

Prosecutors from the House and Trump's defense lawyers will sit at long tables designed to give them room to be socially distanced from one another.

To accommodate social distancing among senators during the trial, there will be seats reserved for them in the galleries, so they do not have to sit at their desks on the Senate floor for the entire trial, a Senate official familiar with the planning told NBC News.

Senators may be in the public galleries above the Senate chamber — which have been closed to the public due to the pandemic — and in the "marble room," which is just off the Senate floor and where the trial will be shown on television.

The precautions mean some members will not be at their desks during the trial. Senators will need to be on the Senate floor to vote.

Will there be witnesses?

No witnesses are scheduled to testify, but senators could vote to allow them after the trial begins.

The House managers asked Trump to testify last week after he denied some of the allegations in the article of impeachment, but the former president refused the offer through his lawyers, who called it "a publicity stunt."

Who's presiding?

While Chief Justice John Roberts presided over Trump's first trial, Democratic Sen. Patrick Leahy of Vermont, the president pro-tempore of the Senate, will preside over the second because of Trump's status as a former president.

The presiding officer's duties are similar to that of a judge, but more limited than that of a judge in a traditional trial. The presiding officer could rule on evidentiary questions — or could pass that role off to the Senate to have it vote on those questions. Leahy's vote in those instances would have the same weight as that of any other senator.

When do proceedings begin?

The proceedings begin Tuesday with four hours of argument on the constitutionality of the trial by the House managers and Trump's lawyers. While 45 Republicans voted in favor of a measure that argued the proceedings were unconstitutional last month, some of those senators said they simply wanted a debate on the issue. The Senate would then hold a vote on whether to proceed — a measure that only needs a simple majority and is expected to pass easily.

What happens in the trial?

The House managers are scheduled to begin their opening arguments at noon ET Wednesday, followed by the attorneys for the president. Each side will have 16 hours to make their presentations — a shorter than the 24 hours allotted for Trump's first trial and then-President Bill Clinton's impeachment trial. Each trial day is expected to last eight hours — meaning it would go until about 8 p.m. most days, later if they take breaks.

When opening arguments are done, senators will be able to question the two sides for four hours by submitting written questions to Leahy, who will read them aloud.

The managers could then have a debate and a vote on calling witnesses or subpoenaing documents. If that does not happen, the two sides would move on to closing arguments, which would last a total of four hours.

The trial was set to break from tradition and be held on Sundays instead of Saturdays at the request of Trump's legal team because one of them, David Schoen, can't work on the Sabbath.

However, Schoen in a letter Monday withdrew the request and said the role he would have played will be covered by the defense team, and there shouldn’t be any delay on his behalf.

This will likely lead to a change in the schedule laid out in the resolution and will be passed Tuesday, according to a person familiar with the planning.

How many votes needed to convict?

It takes a supermajority — 67 votes — to convict. Anything else leads to acquittal. Neither verdict could be appealed to a court.

What happens if Trump is convicted?

Trump doesn't have to worry about being removed from office, but if he's convicted, the Senate could then hold a second vote to disqualify him from ever holding national office again. That penalty would need a simple majority of 51 votes to pass.

Who are the "jurors"?

The entire Senate hears the case, but has more power than a typical civil or criminal jury.

In addition to being able to vote on procedures and evidence, senators can submit questions and objections to the presiding officer. And while judges strive to pick unbiased civil and criminal juries, that's not the case here. The Senate is currently evenly divided between Democrats and Republicans.

If there's a 50-50 split on a trial issue, Vice President Kamala Harris could act as a tie-breaking vote. While a vice president is typically excluded from involvement in a presidential impeachment trial because of conflict of interest issues, Trump's status as a former president renders that issue moot.

Who are the "prosecutors"?

There are nine impeachment managers, who essentially act as the prosecutors in the case. The roster is entirely different from the first impeachment trial. Rep. Jamie Raskin, D-Md., is the lead manager. He's joined by Reps. Diana DeGette, D-Colo., David Cicilline, D-R.I., Joaquin Castro, D-Texas, Eric Swalwell, D-Calif., Ted Lieu, D-Calif., Joe Neguse, D-Colo., and Madeleine Dean, D-Pa., as well as Delegate Stacey Plaskett, D-U.S. Virgin Islands.

Who are Trump's lawyers?

The former president will also have a different roster of lawyers than he had in his previous trial, and different lawyers than he had originally lined up. He parted ways last month with the first three lawyers who were set to represent him and is being represented by attorneys David Schoen, Bruce Castor Jr. and Michael van der Veen.

Schoen is a civil and criminal defense lawyer who previously represented Trump adviser Roger Stone, whom Trump granted a full pardon during his final weeks in office.

Castor is a former Pennsylvania district attorney who declined to prosecute the disgraced comedian and actor Bill Cosby in 2005. Cosby was convicted of sexual assault in 2018 after a different prosecutor pursued the case.

Van der Veen is a Philadelphia-based personal injury and criminal defense lawyer.