Trump’s impeachment can still go forward
With ten Republican votes in favor of impeachment in the House, Trump’s second impeachment became the most bipartisan impeachment in the history of the country. The Senate’s recent vote to allow an impeachment trial to go forward even though Trump is no longer in office was similarly bipartisan, with Senators Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Neb.) and Patrick J. Toomey (Pa.) joining all 50 Democrats.
Of course, the response of the media and many activists has been one of disappointment. After all, the fact that 45 Republican senators voted to dismiss the impeachment case indicates that there may not be sufficient votes to convict Trump, so claim Republicans and the media. Maybe so. I was particularly disappointed, although not surprised, when the newly-appointed Senate Minority Leader Mitch McConnell (R-KY) voted to dismiss the impeachment case. After all, he had previously indicated that he believed Trump’s conduct to be impeachable.
As time passes, however, Trump becomes less popular and less powerful even among the Republican diehards. The idea that five GOP Senators would vote to move the impeachment forward would have been unthinkable just months ago. As the Pew Research Center found in its final poll of the Trump presidency, his approval rating has fallen sharply to 29–68. And who knows what will be revealed in the Senate trial. Remember, it’s easier to vote against impeachment when none of the evidence has come to light yet.
So it could happen. After all, a lot of the Senators who fervently supported Trump and opposed his impeachment — think Josh Hawley (R-MO) or Ted Cruz (R-TX) — want to be President. As such, having him banned from running in 2024 is attractive to them.
If the Democrats stick together, they need only 16 Republican votes to convict. However, if some Republicans don’t want to go on the record convicting Trump, then they can just fail to show up on the day of the vote. Remember, conviction is based upon the number present and voting, not the total number of Senators. As a result, if 18 Republican senators take a walk during the vote, and the 55 who voted to impeach stick together, Trump would be convicted.
So the Republican celebration is a little too early. There are still nearly two weeks before the Senate trial is scheduled to begin on February 9. Two weeks is a long time in politics.
As a result, the Republican attacks against the impeachment continue. The standard-bearer for their argument appears to be Judge Michael Lustig, a retired 4th Circuit Court of Appeals judge appointed to the bench by the first President Bush. In an oped published in the Washington Post he argued that a conviction is unconstitutional since Trump can no longer be removed from office, according to him the sole purpose of the impeachment clause of the Constitution.
Popular Information’s Judd Legum, in a thoughtful blog post pointed out many of the fallacies in Lustig’s argument, including the fact that the Senate had previously held an impeachment trial after an officer resigned his position: the 1876 impeachment of former War Secretary William Bellknap.
But the plain language of the Constitution doesn’t even support Lustig’s arguments. Article I, Section 3 provides in relevant part: “Judgment 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.”
In other words, there are two remedies impeachment can result in. First, as Lustig correctly points out, is removal from Office. Lustig is also correct that this remedy is pointless now that Trump has already left office. As lawyers say, it is moot.
But the second remedy is still very much an issue: if convicted, Trump can be barred from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States.”
Call me crazy, but the idea of Trump being barred from ever running for office again, or even being appointed to one, holds some appeal to me. What’s more, the clause seems to imply that we would not need to provide perpetual Secret Service protection to him and his family if he is convicted. I must admit that paying for his and Melania’s security for the rest of their lives turns my stomach.
Should he be convicted? I think the facts speak for themselves, but obviously there are those who differ from my views on this point. Will he be convicted? That remains to be seen. Can he be convicted? Here, the Constitutional language is clear that the answer is yes.