The impeachment part was easy, but now what?
Donald Trump is now the only American president to have been impeached twice. But like Andrew Johnson and Bill Clinton, he will not be removed from office.
There’s not enough time for a Senate trial, at least not a fair one.
So what next?
Well, it’s complicated. The kind of stuff that could fill flow charts in the offices of Mitch McConnell and Chuck Schumer as they game it all out.
Let’s try to do that.
The Senate will come back into session Tuesday, the day before the inauguration. Therefore, the most significant punishment for Trump – his removal from office – is off the table.
But he could still be precluded from running again. Article 1, Section 3 of the Constitution says:
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…
That disqualification does not automatically follow a conviction. It requires a separate vote. Two-thirds of the Senate is needed for conviction – 67 will be the magic number, requiring 17 Republicans.
But only a simple majority is needed for the second vote – a ban from running in the future.
There’s no precedent for presidents being disqualified. But there have been other government officials hit with that double whammy.
We are headed into uncharted waters in many areas. The biggest question is whether the Senate can try a former president after being impeached?
Legal scholars have reached different conclusions. Harvard’s Lawrence Tribe wrote for The Washington Post:
The clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump’s presidency would not end his Senate trial.
But Ross Garber, from Tulane, who has represented governors facing impeachment, said:
If the framers had intended impeachment for former officials, they would have said so.
Another ramification of Trump being gone from office by the time of his trial: Who presides?
Article 1, Section 3 says:
“When the President of the United States is tried, the Chief Justice shall preside…”
But Trump won’t be the president, so Chief Justice John Roberts’ role is unclear. Does that mean the president of the Senate – Vice President Kamala Harris will preside at Donald Trump’s Senate impeachment trial? We just don’t know.
Another consideration is the impact on the new president. Joe Biden is eager to get to work next Wednesday. He needs his cabinet members to be confirmed by the Senate as soon as possible. But under Senate rules, impeachment is the only issue the senate can consider once the trial starts.
That’s why on Wednesday the president-elect tweeted:
Today, in a bipartisan vote, the House voted to impeach and hold President Trump accountable. Now, the process continues to the Senate—and I hope they’ll deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation.
— Joe Biden (@JoeBiden) January 14, 2021
So, must there be a trial? Nothing in the Constitution requires the House to transmit to the Senate its articles of impeachment. Speaker Pelosi can hold them indefinitely.
And Assuming the House does deliver the articles, it’s not entirely clear that the Senate must act on them.
Again, not spelled out in the Constitution.
Bob Bauer, who served as White House Counsel to President Obama addressed this subject for lawfare in 2019 and said it is a logical construct of the constitution that if the House impeaches, then it would follow that the Senate tries the case.
But he also said:
“The Constitution does not by its express terms direct the Senate to try an impeachment. …….The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own ‘sole power,’ to decline to try any impeachment that the House elects to vote.”
So, where does this leave us?
First, if and when there is a trial, a conviction in the Senate will not come easy. Remember, in the last Senate impeachment trial, there were 2 counts. One was for abuse of power, and the vote was 52-48 for acquittal – only Mitt Romney broke ranks. The second charge was for obstruction of Congress and the vote for acquittal 53-47 – No GOP senators supported it.
This time it’ll take 17 Republican votes for conviction. All eyes are on Mitt Romney, Lisa Murkowski, Ben masse, Pat Toomey, and Susan collins… but they are only 5. If McConnell votes to convict, he could be a 6th, and he might cause more to do so.
But that is still not 17. Assuming Dems get all 50 of their own party members.
This raises this question: If it appears unlikely that Democrats can line up the votes for conviction, is it still worth trying trump? Yes, if you believe – as the House voted – that Donald Trump incited insurrection. The epitome of a high crime which also warrants disqualification from his running again. By this logic, he must be tried even if he’s not convicted.
Plus a trial, in this case, could be not only an opportunity to bury the lie that the election was stolen but also an opportunity to produce evidence of the impact of the president’s words and actions on those who were lawless at the Capitol.
If we don’t move forward with a Senate trial, it suggests the House impeachment was all “noise,” and we abandon the 10 Republicans willing to break ranks. Who will do so next time?
And what message would be sent in not prosecuting? “Don’t commit a high crime or misdemeanor…. But if you do it in your final few weeks, we will let you slide”?
If Trump is not tried and convicted it raises another possibility: That this human phoenix (think “grab ‘em by the p”) again rises from the ashes. What if he comes back, wins the nomination, and wins? If that happens, many will ask why the Senate didn’t convict him when had the chance? Does that sound far-fetched?
A brand new Axios-Ipsos poll found that big majorities of Republicans still think Trump was right to challenge his election loss, support him, and don’t blame him for the capitol mob and still want him to be the 2024 nominee.
A radio listener of mine – Anthony in SF – suggested that it should be the Republicans who hope for a conviction. He argued Trump is an albatros, damaged goods who can’t win again, but unless he is convicted and disqualified he will shadow the GOP in both the 2022 midterms and the 2024 presidential.
Maybe that’s why McConnell is signaling he is personally open to the idea of conviction.
So what’s the best path forward? From The Wall Street Journal:
Democrats are now triumphant in Washington. If they really want to calm political tempers, they’ll drop an impeachment trial and let Mr. Trump slink away to Florida. They can take the high road and get on with their agenda. Mr. Biden could even take credit for suggesting it and his approval rating would soar. The shame is that Democrats seem so obsessed with Mr. Trump that they are the ones who can’t let him go even after they’ve won.
Then again, from the Los Angeles Times:
McConnell said Wednesday that he hasn’t decided how he would vote at an impeachment trial, following a New York Times report that he was pleased that the House was moving toward impeachment. There’s no task more pressing for the Senate at the moment than to hold Trump accountable for the damage inflicted last week, and McConnell should do his part to ensure that the trial begins as soon as possible. But if that reckoning must wait until after Trump leaves office, so be it.
Here is today’s survey question at Smerconish.com: Should the impeachment trial move forward even if it appears unlikely 17 Republicans will vote to convict?
Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.