Trying an Impeached Former President
The legal debates are unsettled but we can all agree that Rand Paul is a moron.
The headlines and ledes of America’s two leading newspapers are virtually identical:
WaPo (“Nearly all GOP senators vote against impeachment trial for Trump, signaling likely acquittal“):
All but five Republican senators backed former president Donald Trump on Tuesday in a key test vote ahead of his impeachment trial, signaling that the proceedings are likely to end with Trump’s acquittal on the charge that he incited the Jan. 6 Capitol riot.
The vote also demonstrated the continued sway Trump holds over GOP officeholders, even after his exit from the White House under a historic cloud caused by his refusal to concede the November election and his unprecedented efforts to challenge the result.
Trump’s trial is not scheduled to begin until Feb. 9, but senators were sworn in for the proceedings Tuesday, and they immediately voted on an objection raised by Sen. Rand Paul (R-Ky.) questioning the constitutional basis for the impeachment and removal of a former president.
“Impeachment is for removal from office, and the accused here has already left office,” he argued, adding that the trial would “drag our great country down into the gutter of rancor and vitriol, the likes of which has never been seen in our nation’s history.”
NYT (“Republicans Rally Against Impeachment Trial, Signaling Likely Acquittal for Trump“):
Senate Republicans rallied on Tuesday against trying former President Donald J. Trump for “incitement of insurrection” at the Capitol, with only five members of his party joining Democrats in a vote to go forward with his impeachment trial.
By a vote of 55-to-45, the Senate narrowly killed a Republican effort to dismiss the proceeding as unconstitutional because Mr. Trump is no longer in office. But the numbers showed that loyal Republicans were again poised to spare him from conviction, this time despite his role in stirring up a mob that violently targeted lawmakers and the vice president on Jan. 6 as Congress met to finalize the election.
“I think it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted,” said Senator Susan Collins of Maine, one of the five Republicans who voted to proceed to trial. “Just do the math.”
Trump is the third President to be impeached and, by virtue of being impeached a second time, accounts for half of all presidential impeachments. None have come all that close to removal and I don’t expect this time will be any different.
The question of whether the Constitution allows the Senate to try a former official impeached while he was still in office is not settled. A WaPo explainer from December 2019 and a CRS legal sidebar from just after Trump’s second impeachment combine to trace the arguments and history pro and con.
I’ve come to be persuaded that it’s more likely than not permissible to try Trump—especially since the impeachment itself took place while he was in office. The issue may ultimately be decided by the courts; then again, they may well duck the matter as a “political question.”
Among the dumber arguments, alas, was set forth by Rand Paul in a Washington Examiner op-ed titled “The Senate’s impeachment trial is illegal and a sham.”
Democrats claim to want to unify the country, but impeaching a former president, a private citizen, is the antithesis of unity. This impeachment is nothing more than a partisan exercise designed to divide the country further.
First of all, Trump has already been impeached. And that happened when he was the sitting president, a public official.
Second, 10 House Republicans voted for impeachment, so it’s not a purely partisan exercise.
Third, to the extent Trump committed crimes against the Constitution, “unify[ing] the country” is not the most important objective.
They have brazenly appointed an openly pro-impeachment Democrat to preside over the trial. This is not fair or impartial, and it hardly encourages any kind of unity for the country.
If we are about to try to impeach a president, then where is the chief justice? If the accused is no longer president, then where is the constitutional power to impeach him?
Again, you stupid son of a bitch, Trump has already been impeached. The House impeaches officials; the Senate conducts the trial. Even if you didn’t learn that in school, you’d think you’d remember that from last fucking year when you participated in the process.
As to who presides, I’m rather agnostic. The Constitution specifies, “When the President of the United States is tried, the Chief Justice shall preside.” Since Trump is no longer President, there’s no obvious reason for the Chief to preside. There is no instruction in the document as to who presides in cases where the person being tried is other than the President, leaving that to the judgment of the Senate. Someone seen as impartial, however, would present better optics.
Private citizens don’t get impeached. Impeachment is for removal from office, and the accused here has already left office.
We’ve addressed the impeached/convicted issue twice already; make the correction throughout.
Regardless, this is the strongest part of the argument. Former judge Michael Luttig explicated it nicely in a WaPo op-ed earlier this month. But, as many rejoinders have pointed out, in addition to removal from office—which was accomplished by his re-election defeat—the Constitution provides a second potential punishment upon conviction: being barred from holding federal office in the future. That leads me to believe that the Senate can and must hold the trial. But, again, this is unsettled law.
Hyperpartisan Democrats are about to drag our great country down into the gutter of rancor and vitriol, the likes of which have never been seen in our nation’s history. Instead of doing the nation’s work with their new control of the House, Senate, and executive branch, Democrats are wasting the people’s time on a partisan vendetta against a man no longer in office. It’s almost as if they have no ability to exist except in opposition to Donald Trump. Without him as their boogeyman, they might have to legislate, and actually convince the public that their policy prescriptions are the right ones.
Leaving aside the histrionics, it’s hardly as if Congress never engages in partisan vendettas that waste time that could be devoted to the people’s business. The endless Benghazi hearings come to mind.
I’ll spare you the rest of the piece, which is just nonsensical dreck demonstrating what an utter moron Kentucky has as their junior Senator, including wanting to know why Democrats aren’t calling for the impeachment of the major of Seattle. (Hint: She’s not a civil officer of the United States.)
As to the trial itself, one presumes a handful of Republicans will in fact vote to convict but that we’ll fall short of 17. I’m not sure, however, that the 55-45 vote on the procedural matter of whether a trial is Constitutional will be replicated. It’s possible to believe that Trump is not subject to the Senate’s jurisdiction but that, the Senate having voted otherwise, that the matter is settled until the courts rule otherwise.
Meanwhile, Tim Kaine and Susan Collins are pursuing an alternate track, urging their colleagues to censure Trump. It’s not obvious to me who would vote for that and not a conviction.