Here’s a scenario in which only two U.S. Senators would be needed to convict Donald Trump
Normally, sixty-seven Senators would be needed for a conviction at an impeachment trial, but all but three Senators could be called as witnesses
DISCLAIMER: The author of this blog post is not an attorney and does not claim to be an attorney. This blog post should not be considered legal advice, and, to the author’s knowledge, there is no legal precedent for a U.S. Senator being called as a witness in an impeachment trial.
In a short amount of time, disgraced former President Donald Trump will be tried for the second time before the U.S. Senate in an impeachment trial.
Normally, when an impeachment trial occurs, at least sixty-seven of the one hundred U.S. Senators, or at least a two-thirds majority of the full Senate, would have to vote to convict the defendant (in this case, Trump) in order to sustain a conviction. However, ninety-seven, or all but three, Senators were victims of the incitement of insurrection that Trump has been charged with, thus the impeachment managers could, if they wanted to, try to call those Senators as witnesses. The rules for the 1868 impeachment trial against then-President Andrew Johnson included a rule for Senators being called as witnesses (Rule XVII), although there wasn’t a provision specifically prohibiting any Senator called as a witness from voting on the question of conviction or acquittal. However, it may be deemed that a Senator who is a witness at an impeachment trial cannot meet a legal standard of impartiality, which would invalidate such a Senator’s oath of impartiality for the trial.
If the impeachment managers attempt to, and succeed at, calling the ninety-seven Senators as witnesses, and it is deemed that a Senator who is called as a witness cannot vote to convict or acquit, those Senators could be prohibited from voting on the question of whether to convict or acquit Trump. That would leave only three Senators, all of whom were sworn into office after the January 6 coup attempt, who would be eligible to vote on whether to convict or acquit Trump. Those Senators are Alex Padilla (D-CA), Jon Ossoff (D-GA), and Rev. Raphael Warnock (D-GA). If only those three Senators can legally vote on whether to convict or acquit Trump, only two of those three voting guilty would be enough to sustain a conviction.