On the menu today: The House impeaches President Trump again, but the Senate isn’t likely to resolve it before Joe Biden takes office; a legal debate about whether Congress can vote after January 20 to bar Trump from returning to the presidency; and contemplating what we should prioritize if unity is impossible.
McConnell: No ‘Fair or Serious Trial Could Conclude Before Biden Is Sworn In’
The House impeached President Trump a second time Wednesday. With ten House Republicans joining all House Democrats, the number of votes to impeach for “inciting an insurrection” (232) was more than the number of votes for the previous articles of impeachment relating to the president’s phone call with the president of Ukraine — 229 and 230 votes.
In the Senate, where Mitch McConnell remains majority leader until January 20 — and perhaps a little longer, depending upon when Raphael Warnock and Jon Ossoff are sworn in — action is unlikely until after President Trump leaves office. McConnell summarized the situation in a four-paragraph letter to colleagues:
The House of Representatives has voted to impeach the President. The Senate process will now begin at our first regular meeting following receipt of the article from the House.
Given the rules, procedures, and Senate precedents that govern presidential impeachment trials, there is simply no chance that a fair or serious trial could conclude before President-elect Biden is sworn in next week. The Senate has held three presidential impeachment trials. They have lasted 83 days, 37 days, and 21 days respectively.
Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office. This is not a decision I am making; it is a fact. The President-elect himself stated last week that his inauguration on January 20 is the ‘quickest’ path for any change in the occupant of the presidency.
In light of this reality, I believe it will best serve our nation if Congress and the executive branch spend the next seven days completely focused on facilitating a safe inauguration and an orderly transfer of power to the incoming Biden Administration. I am grateful to the offices and institutions within the Capitol that are working around the clock, alongside federal and local law enforcement, to prepare for a safe and successful inauguration at the Capitol next Wednesday.
Matthew Continetti argues this is precisely the wrong approach:
The arguments put forward for idleness are not convincing. Democrats worry a trial might interfere with President-elect Biden’s agenda. But the trial doesn’t have to be long. All the facts are in evidence. They are plain to anyone who can read or watch television. Senators could reach a verdict prior to inauguration. Indeed, it is best they do so, even if the trial concludes only hours before Biden takes the oath. That way the Senate avoids the question of whether it is constitutional to convict a president who has left office.
The president’s supporters, and a few of his opponents, say that trial, conviction, and removal would further divide this country. They are afraid of more violence. The risk of action, in their view, outweighs the costs of inaction. Better for the country to look the other way. Perhaps the tiger will slink off into the jungle.
This is a line of thought that is not easy to dismiss. It is often encountered in foreign policy debate. Another word for it is appeasement. But there is a better way to handle challenges to constitutional government. That way is deterrence. Increase the cost of transgression past the price the adversary is willing to pay. How? Through awe-inspiring action. Not just the show of force in Washington ahead of Inauguration Day, or the massive FBI investigation to apprehend the trespassers, vandals, and murderers, and to disrupt ongoing criminal activity. Trying and convicting Trump before his term is up stigmatizes his conduct. It sets a precedent. Up to this point, Trump has set the example. Now let Congress turn him into an example of what happens to presidents who endanger the Constitution and its officers.
I doubt McConnell will change his mind. He’s an institutionalist, and procedure matters to him — much more than whatever outcome he prefers. Also note that we’re in an unthinking era, and many of the people who prefer Trump to McConnell will not give the majority leader one iota of credit for insisting upon “a fair and serious trial.”
In a perfect irony, one of Trump’s best de facto allies at the moment is Joe Biden. It’s not that Biden supports Trump; it’s that the incoming president doesn’t want the Senate tied up for a long time dealing with impeachment when he’s got cabinet members who need confirmation and legislation he wants to pass quickly:
This nation also remains in the grip of a deadly virus and a reeling economy. I hope that the Senate leadership will find a way to deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation.
From confirmations to key posts such as Secretaries for Homeland Security, State, Defense, Treasury, and Director of National Intelligence, to getting our vaccine program on track, and to getting our economy going again. Too many of our fellow Americans have suffered for too long over the past year to delay this urgent work.
For what it’s worth, during past impeachments, the Senate focused only on the trial and everything else was put on hold.
After January 20, Can Congress Bar Trump from Returning to the Presidency?
Michael Luttig, who served as a judge on the U.S. Court of Appeals for 15 years and who is highly regarded in conservative legal circles, argues that impeaching a president after he left office is unconstitutional, and that Trump could win that argument at the Supreme Court:
The purpose, text and structure of the Constitution’s Impeachment Clauses confirm this intuitive and common-sense understanding . . .
It has been suggested that the Senate could proceed to try the former president and convict him in an effort to disqualify him from holding public office in the future. This is incorrect because it is a constitutional impeachment of a president that authorizes his constitutional disqualification. If a president has not been constitutionally impeached, then the Senate is without the constitutional power to disqualify him from future office.
But Ramesh Ponnuru respectfully dissents, pointing to the purpose of impeachment:
Luttig says that the purpose of the Constitution’s impeachment provisions is “to remove from office a president or other ‘civil official’ before he could further harm the nation from the office he then occupies.” He is obviously right in identifying an important purpose of impeachment. There is no reason, however, to assume that it’s the only legitimate purpose. If it were, it would not make sense for the Constitution to mention disqualification from future officeholding as a permissible punishment. And if preventing future officeholding is part of the protective function of impeachment, allowing the use of impeachment to disqualify former officeholders helps its achievement.
Ramesh adds that the Supreme Court won’t want to touch this with a ten-foot pole, examining past writing on the law from Justices David Souter, Byron White and Harry Blackmun:
None of these three justices challenged the conventional view that Congress deserves great deference on how to conduct an impeachment.
It is easy to see why the Supreme Court might not want to second-guess a bipartisan decision by the Senate to convict a president — which is the context in which it would be reviewing a case. It would have precedent to cite for staying out. And, finally, if it decided late impeachment was an issue for it to judge, it would also have reasons for concluding either that the Constitution allows it or that it’s a close question on which the Congress deserves deference.
I would just add one point. Even if you can imagine at least five Supreme Court justices stepping in and saying, “Nope, Congress loses its ability to impeach a president at noon on Inauguration Day, after that, Congress can’t impose any punishment for high crimes or misdemeanors” . . . can you envision this Supreme Court making that decision? Chief Justice John Roberts desperately wants to avoid the Supreme Court becoming perceived as just another partisan battlefield, and keeps nudging the Court towards narrowly tailored, largest-consensus-possible decisions. Do you think this Supreme Court is going to come riding to the rescue of Donald Trump and offer a landmark decision that he can run again in 2024 because Congress missed the deadline?
If Unity Is Impossible, What Do We Want amid the Disunity?
In the coming days, we’ll hear a lot about the need to unite the country. Yesterday Senator Lindsey Graham of South Carolina declared, “Supporting the impeachment of President Trump under these circumstances will do great damage to the institutions of government and could invite further violence at a time the President is calling for calm.”
But the impeachment is in response to the president himself “damaging the institutions of government and inviting violence.” And it’s swell that the president called for calm eventually, after the worst had passed, but his first tweets during the crisis did nothing of the sort. It takes cojones to insist that the congressional response to a chaotic assault whipped up by the executive branch constitutes an “invitation to violence.”
We never saw that Republican resolution of censure that was supposed to be the alternative to impeachment. We’ll never know if it was tough and unflinching and represented a genuine rebuke, or whether it was a metaphorical slap-on-the-wrist. Right now, as always, the president is convinced he did nothing wrong. It’s hard to tell if congressional Republicans are willing to tell him and their constituents otherwise.