How All Sides Could ‘Win’ the Trump Impeachment

December 18, 2019 – United States House of Representatives votes to adopt the articles of impeachment, accusing Donald Trump of abuse of power and obstruction of Congress. (Photo from House Floorcast | Clerk of the U.S. House of Representatives)

December 18, 2019 – United States House of Representatives votes to adopt the articles of impeachment, accusing Donald Trump of abuse of power and obstruction of Congress. (Photo from House Floorcast | Clerk of the U.S. House of Representatives)

The Senate Democrats should consider a bold approach to resolving the impending impeachment trial of former President Donald Trump: They should empower their lawyers to strike a deal with President Trump’s new lawyers to forego a trial in the Senate and dismiss the charges in return for a binding agreement that President Trump would not run for any federal office, including the presidency, in the future.

This may get each side the best possible outcome and spare the nation another bruising impeachment trial when the country desperately needs to begin a healing process and focus on pressing issues, particularly the unprecedented deployment of COVID vaccines. 

It’s important to underscore that the only thing Congress can achieve in going through a painful impeachment trial, even as a best-case scenario for Democrats, is a conviction and determination under Article 1, Section 3 of the Constitution that Trump is disqualified from holding “any Office of honor, Trust or Profit under the United States.” The removal provision of the impeachment clause is no longer operative since Trump is a former president. The only tangible outcome Democrats can achieve is barring Trump from holding future federal office.

If Senate lawyers and Trump’s lawyers struck a mutually-beneficial deal, they could avoid the risky impeachment trial and walk away with a half loaf each. The Democrats (and some nervous Republicans) would achieve the goal of ensuring that Trump does not run again so that this chapter of history is firmly closed. Trump would avoid further damaging his legacy and his brand. Reaching an accord to avoid more disruption and disunity would allow Trump to begin the process of rebuilding his financial empire and repairing relationships with corporate and business partners who viewed the Capitol siege as a bridge too far, and who wish to see good-faith evidence of Trump turning the page before restoring their affiliations.

This solution would not only benefit Democrats, it would also be good for Trump, advancing his personal interests as a former president, citizen, and businessman.

The proposal of senators Tim Kaine (D. Va.) and Susan Collins (R. Maine) to have the Senate vote to censure Trump and invoke Section 3 of the 14th Amendment to bar him from holding future office ostensibly accomplishes the same result. Yet it lacks any enforcement mechanism. The 14th Amendment states that an official who has engaged in “insurrection or rebellion” is barred from holding future office. However, it has no teeth. Congress holds no power to halt individuals from becoming candidates for office, or to stop elections from taking place. Ultimately, there would need to be some separate action in federal court to stop Trump or any other candidate from running afoul of this provision.

A much cleaner way to resolve the matter, while also avoiding a bloody impeachment trial, is to have the parties broker their own deal. If Trump’s lawyer and Senate Democrats’ counsel could sit down in a room, soon, they could agree to take the matter to the U.S. District Court for the District of Columbia. Here, they could seek a consent decree, agreed to by both parties, by which the impeachment trial would be dismissed in exchange for a pledge by Trump not to run for federal office again.

The legal mechanism to accomplish this would be straightforward. One of the parties could file a motion for a declaratory judgment, for instance, asking the court to issue a ruling on the issue of whether an impeachment trial against the former president is constitutionally valid. (The weight of the evidence suggests it is valid, yet there have been plausible arguments made by Republicans that this power is debatable, making it ripe for federal court review). Once this or any case was filed in federal court, the parties would immediately agree to a consent decree, approved by the federal judge, and the deal would be struck. This resolution would then be binding on both sides. The trial would be dismissed. If Trump thereafter tried to disregard the agreement and run for office at any point in the future, the federal court could enter an injunction and remove him from the ballot. Unlike the 14th amendment approach floated by senators Kaine and Collins, this mechanism would have teeth.

Trump, the Republicans, and Democrats might all find this attractive. The order entered by the district court would be non-precedential (consent decrees do not bind future parties). It would be a one-time solution to a unique case.

Admittedly, there is no prior model for this approach. Yet unprecedented times call for inventing unprecedented solutions. Some purists might argue that the federal courts should stay out, and deem this a non-justiciable “political question,” insisting that the matter must be left exclusively to the Senate via the impeachment trial. Yet even if an impeachment trial went forward, and a vote passed to bar this (or any) president from holding future office, the judicial branch would need to enforce it. One way or another, all roads lead to the federal courts.

It would be much better to use the courts as a place to find a solution, rather than as a venue to continue a wearying political battle. The Constitution, in Article 1, Section 3, gives the Senate “the sole Power to try all impeachments.” The Supreme Court has interpreted this provision to provide enormous latitude to the Senate in deciding how to carry out its work. Part of the power to try cases, in any tribunal, is the power to resolve them. The Senate should be given wide berth to reach wise solutions to this impeachment trial, for the good of the parties and of the nation.

It is uncertain whether President Trump has any intention of ever running for office again. It is quite possible that he sees himself as taking on a new role within the Republican party and passing the torch to one or more of his children while returning his focus to his massive business empire. The history of the American presidency, and of the U.S. Constitution, is filled with examples of parties taking bold, creative steps to head off crises and to forge new solutions at unexpected moments in history.

The Senate Democrats, and counsel for President Trump, should seize this moment to work out their own deal, rather than waiting for the uncertain winds of politics to determine their fate. An impeachment trial poses significant risk and peril to both sides. A smart dealmaker takes half the loaf, rather than none.

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