Next Monday, the second impeachment trial of Donald Trump will begin at the scene of the crime, the U.S. Senate. The senators are not just the jurors, but also the victims of the crime and witnesses to the crime. In some cases, they may also have been coconspirators and accessories to the crime. For 45 of them who voted not to proceed with this impeachment trial last week, acting as Trump’s defense lawyers, they are accessories after the fact. They have already violated their oath to be an impartial juror, by excusing a failed coup d’etat, sedition and insurrection.
Supreme Court reporter, Dahlia Lithwick writes at Slate, Republicans’ Arguments Against Impeachment Converge Into Nonsense:
Senate Republicans, some of whom may reasonably have feared for their own lives when insurrectionists stormed the Capitol on Jan. 6, are now coalescing around a single argument as they harden their positions against an impeachment trial for Donald J. Trump: a constitutional claim that former presidents may not be impeached. This is an idea floated by, among others, a [right-wing] former federal appeals court judge, J. Michael Luttig, in the Washington Post, Sen. Tom Cotton, and professor Jonathan Turley, who fully briefed the Senate GOP at a luncheon on Tuesday. (It appears that in 1999, Turley took the opposite position, but no matter.) Sen. Rand Paul forced a test vote on this proposition Tuesday. It failed, but not in a way that perfectly predicts how many GOP senators will embrace the constitutional offramp.
Note: The Arizona Republic’s resident GOP apologist Robert Robb, who is not a lawyer, frequently likes to play one in the editorial pages of The Republic. This former flak for the “Kochtopus” Goldwater Institute and the Arizona Chamber of Commerce and Industry has been spewing this nonsense constitutional defense to not impeach Donald Trump for his failed coup d’etat, sedition and insurrection. Is Donald Trump’s second impeachment trial constitutional? Robb says no. He compounds his legal error in Why I’m a reluctant no on impeaching Trump again. This GOP apologist should lose his job for practicing law without a license.
This claim—that it is not constitutional to impeach a former president—is not really a sound idea, but it probably sounds good enough to pass the stink test. Never mind that 150 legal scholars— including a co-founder of the Federalist Society as well as one of Ronald Reagan’s solicitor generals—dispute it, or that the argument is stunningly weak as a matter of constitutional text and history, or that the “two sides” here are not in fact really two sides at all. It’s clear that whereas in recent weeks Senate Republicans were unified around the vague “unity” theory of the case against impeachment (meaning that, for the sake of unity, the former president’s actions must be forgiven and ignored), they’ve now glommed onto what feels like a more plausible constitutional “process” rationale for leaving the past—even if that past is only 3 weeks old—firmly buried in the past.
The process argument has a certain allure; it allows Rand Paul and Ron Johnson to sound like they are adhering to high constitutional principle while releasing them from the crushing burden of justifying the former president’s actual actions around Jan. 6. And none of this lofty talk of Article II, Section 4, even takes into account the actions of the 147 other Republicans who voted that day to overturn the election results based on sham claims of a stolen election [as did eight senators]. As Adam Serwer observes, the fact that some Senate Republicans themselves will be on trial in a sense during this second impeachment should weigh heavily on them. But it will not. And as my colleague Jim Newell predicted, Senate Republicans will process-argue their way out of dealing with what happened earlier this month because they have discovered that they can.
And so Senate Republicans seem to have settled upon a strategy of blanketing a numb and exhausted populace with “process” arguments about all the ways their hands are tied when it comes to the actions of an ex-president, while still complaining that the other side of the aisle is lawless. Sure, what the former president did was problematic, the fractionally more honest Republicans will say, but impeachment is not the correct vehicle to remedy that. If this all sounds familiar, recall that, only a year earlier, the bulk of Donald Trump’s defenders in the Senate chose not to deal with the reality of his phone call to Ukraine that sought to have that country begin investigating the son of his election opponent. Instead, GOP members confined their arguments to claim that impeachment was inappropriate for a sitting president. That first impeachment effort was an extra-constitutional effort to either overturn the prior election or an effort to try to steal the next one. These were some of the main arguments that allowed every GOP senator aside from Mitt Romney to say that the law itself forced their hands.
A year ago, Sen. Joni Ernst explained her vote to acquit the former president as part of her constitutional obligation to ensure that the American people—and not she, a sitting senator elected by those people—would decide the impeachment question: “Given the constitutional requirements, voting any other way on these articles would remove the ability of the American people to make their own decision at the ballot box in November.” Impeaching a sitting president foreclosed the constitutional right of the voters to remove a sitting president by voting against him, apparently. But Ernst argues this week that while Trump bears some responsibility for the Capitol riot, an impeachment at this point is unconstitutional and “if the president is truly guilty of something else we have remedies through the courts for that.”
Then-Sen. Lamar Alexander made exactly this argument at the first impeachment trial:
It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate. … The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.
For much of the GOP, last year was too soon for the Senate to act constitutionally. This year it is now too late. The “let the voters decide” contingent in 2020 included Lindsey Graham, Marco Rubio, Ted Cruz, and Rob Portman. These same senators are today arguing that they once again cannot do their jobs to check power in the executive branch of the government.
During the last impeachment, multiple Senate Republicans used a slightly different version of this faux-constitutional argument to object to the proceedings: They said the Senate trial was simply a shabby, extra-legal effort because it aimed to overturn the will of the people from the 2016 election, as opposed to the 2020 election. Consider, for instance, Sen. Josh Hawley. Around this time last year Hawley, on Fox News, accused Democrats of purporting “to protect democracy by overturning elections.” (For what little it’s worth, Hawley was one of the Senate Republicans who, purporting to protect democracy on Jan. 6, voted to overturn the 2020 presidential election for no reason other than that his preferred candidate lost.) A year later Hawley now says of an impeachment trial: “I think that this impeachment effort is, I mean, I think it’s blatantly unconstitutional. It’s a really, really, really dangerous precedent.”
Similarly, Ted Cruz, back in January 2020, pronounced that “to use impeachment, like the House Democrats are doing, to express their political disagreement with the president, to try to overturn an election they’re unhappy with, that is an abuse of the Constitution.” (Cruz, like Hawley, voted on Jan. 6 after the riot to overturn an election he was unhappy with.) He now admits that the constitutional matter of impeaching a former president is a “close question,” then pivots to say that he opposes impeachment for Trump because “President Trump has already left office, we have a new administration. … I think this impeachment trial is petty, it is vindictive, and I think it’s time to move on.” So. To review. In 2020 it was an abuse of the Constitution to use impeachment to overturn an election, but in 2021 it’s “petty and vindictive” to use impeachment to punish a president who sought to overturn an election.
The boldest Trump apologists combined both arguments about prior and future elections into a big faux-constitutional fondue. Here was White House counsel Pat Cipollone in his closing arguments in the first impeachment trial: “We put our faith in the Senate because we know that you will put your faith in the American people. … You will leave this choice to them where it belongs.” Cipollone echoed Cruz and Hawley, adding that “at the end of the day, this is an effort to overturn the results of one election and to try to interfere in the coming election that begins today in Iowa. … There is only one answer to that, and the answer is to reject those articles of impeachment. To have confidence in the American people, and to have confidence in the result of the upcoming election, and to have confidence and respect for the last election and not throw it out … and to leave the choice of the president to the American people.”
Trump’s personal lawyer Jay Sekulow made this same observation in his own arguments: “Elections have consequences. We all know that. And if you do not like the policies of a particular administration or a particular candidate, you are free and welcome to vote for another candidate. But the answer is elections, not impeachment.” The constitutional shell game here is a simple one: If the president is still in office, impeachment is an inappropriate remedy because it’s either an effort to subvert the past election or manipulate the upcoming one. For a sitting president, the argument goes, it will always be urgently important to “let the people decide.” Once the president is out of office? Impeachment is an inappropriate remedy because he is no longer sitting; indeed, even the effort to prevent the president from seeking future office is now characterized as anti-democratic apparently, no matter what he may have done to subvert democracy himself. Asked about a vote to bar the president from running in the future, Ron Johnson said this week, “Let the voters decide whether they want President Trump to run again. … There’s nothing I see in the Constitution that allows you to impeach a president after he’s already left office.” “Let the voters decide” is the get-out-of-jail-free card, by which other officials also elected by the voters declare themselves impotent about past, present, and future misconduct.
Law professors largely agree that the central problem with the argument that a former president cannot be impeached is that it would allow her to resign three minutes prior to an impeachment trial, having committed impeachable offenses throughout her time in office. But the political objection is simpler: If Republicans now contend that you cannot impeach a sitting president, and you also cannot impeach a former president, and you cannot even prevent an impeachable president from running again in the future without running afoul of the “will of the people,” impeachment is a dead letter, a relic, and completely useless. Unless of course, they’re already trying to impeach Joe Biden. In which case the Constitution stands firmly on their side.
For Republicans, impeachment is only for Democratic presidents. How does a mutually consensual blow job compare to a coup d’etat, sedition and insurrection? There is no comparison. This was the worst crime ever committed by a president of the United States.
As Eleanor Clift says at The Daily Beast (subscription required), Forget Trump. McConnell and the Senate GOP Are on Trial. “The Senate itself is on trial. Republican Senators are poised to hand a disgraced president a second chance to claim victory by failing to convict.” Putting GOP tribalism ahead of country and the rule of law and their oath of office.
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Legendary attorney Bob Bauer says “By Republicans’ logic, a president is free to commit insurrection so long as it is at the end of his term.” “Why the G.O.P. Argument Against Trying Trump Is So Dangerous”, https://www.nytimes.com/2021/02/02/opinion/trump-impeachment-republicans.html
[T]he remarkable claim — one that some senators seem to have adopted disingenuously so that they can avoid a defense of Donald Trump’s action and pose instead as guardians of the Constitution. It is the claim that a president can escape the consequences of egregious, impeachable conduct, and in particular disqualification from future office, so long as the Senate runs out of time to try the case before the end of his term.
This Republican argument wholly misconstrues the text, history and structure of the Constitution’s impeachment clause. It is a mistake to minimize impeachment’s broader objectives by suggesting that removal from office was somehow its only or primary function.
The power to impeach specifically provides for two decisions: impeachment and conviction, resulting in removal, and then disqualification from holding office. As drawn from the English practice, and reflected in state constitutions at the time, both these actions were understood to serve the overall purpose of public accountability for egregious abuses of public office.
Indeed, several state constitutions at the time of the federal Constitution’s writing permitted impeachment only after public figures had left office. Public accountability and disqualification were the purposes of impeachment; the Constitution’s addition of removal from office was an expansion on these provisions.
The argument focused on Mr. Trump’s status as a former president is misguided and dangerous. When impeached, he was in office. Moreover, it is highly doubtful that the framers intended the impeachment clause to give the president free rein to commit impeachable offenses in the closing months of his term.
In any case, the Senate always decides on disqualification after the offender is a “private citizen,” since that is what he becomes upon conviction of an impeachable offense. The Constitution does not even specify that this second vote on disqualfication must be immediate. The Senate could vote weeks later, after deliberation and debate, well into the former president’s “private” life.
Still more fundamental: This “late impeachment” argument fails to grasp the constitutional framework within which the question must be considered. The Federalist Papers made plain the framers’ preoccupation with protections against the demagogue, the “unworthy candidate” of “perverted ambition” who practices “with success the vicious arts, by which elections are too often carried.” The provision for “disqualification to hold and enjoy any office of honor, trust or profit” was one of many instances of constitutional checks against popular passions that could lead to the election of officeholders who would threaten to subvert the Republic.
No basis exists for claiming that the drafters of the Constitution intended to leave presidents who have demonstrated danger to the Republic to seek the position again based on a mere happenstance of timing: that a Senate trial cannot take place after the president has been voted out of office.
[E]nough Republican senators may adopt this argument against “late impeachment” to block conviction and the ensuing vote on disqualification. But the moment should not pass without calling out in clear terms the damaging constitutional precedent that this outcome will produce.
The Republican senators are effectively seeking to establish a “loophole” in the critical constitutional mechanism for holding presidents accountable for high crimes and misdemeanors — in this case, a trial and decision on disqualification of a former president who, while in office and as set forth in the articles of impeachment, “gravely endangered the security of the United States and its institutions of government, threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government.”
NOTE: Worse than this, a majority of Senators will vote to convict. A tyranny of a minority of Republican senators — some of them coconspirators and accessories to Trump’s sedition and insurrection — may prevent the Senate from achieving the two-thirds majority necessary to convict. This tyranny of a minority will thus be ratifying sedition and insurrection as a tool of political dissent to election results with which they disagree in future elections. They are announcing their game plan for future elections. It is a rejection of American democracy for tyrannical authoritarianism. It is a violation of their oath of office.
I’m just a simple semi-rural retiree but it seems the previous president was impeached for the second time while he was in office and once impeached he needs to be tried by the Senate even though he’s now left office. By the GOP ‘s logic the previous president, while in office, could commit every crime under the sun and not be held accountable for any of it after leaving office. Or am I missing something?
Yossarian: That’s some catch!
Doc Daneeka: It’s the best there is.