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.
Just wanted to say that…
Exasperated vent-swearing James Joyner might be the best James Joyner to read.
Beyond that 100% James to all the points above. And honestly, this goes beyond just Rand Paul. It’s worth noting that McConnell, after supposedly being upset at the President, signed onto this general idea as well.
I caught a clip of Paul radically downplaying Trump’s rhetoric, pretending like it was no different than normal political talk.
I found it quite infuriating.
@Steven L. Taylor: The problem is that is wasn’t, in fact, different from the common rhetoric GOP party members have been using for the past number of years.
Nor is it obvious what it would accomplish. It would not bar Trump from anything. And should, say, Josh Hawley become prez I can’t see him saying to himself, “I can see a way to steal my reelection. But if I do I might get censured so, despite censure having no real consequences, I better not.”
Nor is it obvious to me why Trump’s call to the GA SoS and his scheming with the Clark guy at DoJ haven’t been added to the article of impeachment. On the other hand, it’s not obvious why he isn’t already being criminally prosecuted for all this and more.
Let’s see, Kentucky sends Moscow Mitch and Rand Paul to represent the state in DC, prima facie evidence that the state should be expelled from the union.
In good news, Business Insider is claiming that Josh Hawley is telling associates, he won’t run for Prez in 24. It will be interesting to see if he can be reelected.
That’ll teach him!
@Steven L. Taylor:
Isn’t that an extension of the admonition not to take what Trump says literally?
I’ve never understood how you were supposed to take someone seriously, but not literally.
“Obama says he is ‘absolutely positive’ he will not run for president in 2008.” — USA Today, 7/24/2005
And in May 2017:
Doug at the time: “On the surface, a run by Biden in 2020 seems incredibly unlikely.”
It’s practically a civic tradition for future candidates to deny any intention of running. And this is definitely, absolutely, one matter on which “both sides do it.”
It’s just one manifestation of the emperor’s-new-clothes effect when it comes to Trumpists. They know he says things that are indefensible, so they claim he doesn’t mean quite what he says he means, except when it’s good in their eyes, in which case they give him all the credit.
@CSK: “I’ve never understood how you were supposed to take someone seriously, but not literally.”
What I assumed that meant was “of course he’s lying, but he’s on our side, so we’re happy.”
Collins is expressing concern.
Of course Obama and Biden weren’t credibly being accused of sedition, with the R establishment and donors in his state withdrawing support.
I don’t think Trump’s fans feel that he’s ever said anything indefensible.
I don’t think they think that he lies. He’s telling them what they want to hear. How can it be anything but true?
There is overlap, but when it comes to the rhetoric about massive election fraud and the deployment of violence (going back to the 2016 campaign), Trump was at a different level.
That is not to defend other GOP rhetoric, but I think it is a mistake to lump Trump in wholesale with the past–indeed, if you really believe that to be true, then Paul has a point.
It depends what you mean by that. Remember He-who-must-not-be-named defending Trump’s “Mexico will pay for it” comments in 2016, on the grounds that it was just a negotiating ploy? That’s an example of what I’m talking about. They see with their eyes and hear with their ears things which they know make Trump come off as ridiculous or reprehensible–but then they go on to suggest he didn’t really mean what he said. It’s all 11D chess. It is effectively a way of dismissing criticisms of Trump, but it’s done with a certain level of base awareness of how awful he sounds on the surface. It is above all a form of monumental self-deception.
@Steven L. Taylor:
So they’ve been sowing poison oak everywhere they can in the garden of democracy and then Trump comes along and starts planting kudzu in every square inch he can find. Both are dangerous to maintaining a user-friendly garden but one is more invasive and harder to destroy than the other. The fact that the kudzu is obscuring and even choking out the poison oak doesn’t mean they shouldn’t be held accountable for what they’ve planted…. and that several of them were caught helping the kudzu grow out of control as well. It’s the same crime that only got bolder once the brazen nut started doing his thing without punishment.
Paul and his ilk are CYA and nothing more. Their “unity” means “we don’t want to be held responsible for what we’ve done and encouraged” so no, Dems aren’t encouraging “unity”. They stalled and they stalled and now they want to whine the clock’s run out? Nope, no and hell no – you cannot cite your dragging ass as the reason why it’s no longer valid.
I caught up with Mike Duncan’s Revolutions podcast yesterday. he said something germane to this. Paraphrasing:
“If we’ve learned anything from the Revolutions podcast, or for that matter the History of Rome, is that political leaders will do what they want, regardless of norms and laws, unless somebody stops them.”
Let’s suppose Paul is sincere in his belief that a Senate trial is unconstitutional. What does he propose as a remedy for a person out of office who incited an insurrection while in office?
Nothing, of course. It’s Obamacare all over again. Where was the Republican counter proposal to the ACA? Where was the Republican proposal for some form of health insurance reform and aid between 2001 and 2009?
So, as James so charmingly nicknamed Paul, you stupid son of a bitch, what’s to prevent a future president from performing a successful coup? What are you going to do to prevent the next one?
I admit, trying and convicting trump con’t prevent the next coup attempt. everyone knows if a coup succeeds, the perpetrator gets off (see Pinochet). But the acceptance of the attempt signals potential support for such a move in the future. trump must not only be convicted and disqualified, but also prosecuted and repudiated.
They don’t want to prevent the next one since it’s extremely likely to come from their side at this point. Should we see a repeat of this, it ain’t gonna be the feared “woke” crowd demanding justice; it’s gonna be whatever QAnon mutates into with a new Daddy at the helm. If anything, Paul and the GOP are downplaying this because they have concerns about what’s going to happen to them if/when it happens again. They caught the tiger and now must spend the rest of their lives petting it and praying they’re not lunch.
Much like not doing anything to secure elections despite rampant “voter fraud” claims, any action they take will hinder them in their own malfeasance rather than shore up democracy’s shaky underpinnings. They don’t want to stop a future coup – they want us to think its NBD that they they tried so they can try again.
I genuinely believe that it would serve these idiots right if they acquit and Trump decides to run again in 2024. For all who say this is unlikely: it really depends on what his finances look like, and if he thinks he needs the financial boost. Full stop.
@Steven L. Taylor: He does have a point but draws the wrong lesson from it.
He is correct that extreme rhetoric and support for violence, both explicit and implicit, has become all too common in Republican political circles (examples below).
He is wrong that that reality means that we should excuse Trump’s (or anyone else’s) when that rhetoric is actual incitement (calculated or intended to lead to imminent violent or illegal action). He is trying to elude the difference – and excuse the rhetoric. We should tolerate neither.
It is a pretty clear line of rhetoric that, if believed, leads to the “1776 moment” Rep. Boebert and others proclaimed a few weeks ago. The same woman who stated that the Second Amendment “has nothing to do with hunting, unless you’re talking about hunting tyrants” From Ted Cruz claiming that Obama’s use of executive orders was creating “an imperial presidency [that] threatens the liberty of every citizen” to Rep. Don Young’s comment that “should our government seek to further tax, restrict or register firearms … the duty of us good and faithful people will not be to obey them but to alter or abolish them and institute new government.” What is the difference between Rep. Greene recently expressing support for executing federal officials and law enforcement and the 2010 cycle with GOP congressional nominees saying things like the violent overthrow of the U.S. government should not be “the first option,” but citizens ought to use “any means necessary” and that violence should remain an option “on the table” (Texas) and “If I could issue hunting permits, I would officially declare today opening day for liberals. The season would extend through November 2 and have no limits on how many taken as we desperately need to ‘thin’ the herd.” (California). etc.
Don’t forget the ego boost. That may be even more important to Trump than the money.
As for money, bear in mind the article from Vanity Fair to which I linked recently. All Trump has to do is charge 25 million of his followers $100 a year for a weekly “newsletter” full of his blatherings and he’s in the chips again. He wouldn’t have to write the newsletter–not that he could, of course. Some minion would do it for him.
This is what the folks on Wall Street believe he has planned.
Youtube has suspended Trump’s channel indefinitely, citing the potential for further violence.
James, I wish you’d stop beating around the bush and tell us how you really feel about the junior senator from Kentucky.
As I said at the outset, this process should have been expedited. Trump should have been impeached the day of the Capital riot and the impeachment should have been passed to the Senate the following day or at least by the end of that week.
Instead, we get a situation to spending a few months picking at a scab that will produce nothing but soundbites for partisan posturing, keep Trump in the news, and distract the Senate from other business.
There was no chance he was going to be convicted in the Senate, the Republican Senators are cowards, too attached to their current jobs.
But one thing is certain, almost all of them are praying, silently, every night that Trump would get a fatal heart attack well before the 2024 primaries.
Something that would rid them of him but wouldn’t have their fingerprints all over his body. Maybe something they could blame the Democrats or the Deep State(tm) for.
Coulda woulda shoulda
Maybe a Republican presiding with a GOP majority would be sub-optimum.
Unlikely he is a factor by then, various issues including health including (IMO) senile dementia.
For the next year or two he is going to be pretty unhelpful to the GOP’s prospects though.
Honestly, I don’t expect that to stop him. Unless he’s literally incapable of speaking or stuck on his deathbed, he’s going to be running his mouth and trying to get attention. So he doesn’t walk out on stage all the time; they’ll just set up dramatic unveilings of him in “heroic” poses at a podium in true kayfabe tradition.
Health problems are a setback, sure but the point isn’t to *win* – the points are (A) indulge his inner attention whore (B) make money and (C) spite everyone he hates and wants to get even with. The fact that he might be even more out of his gourd in 4 years isn’t going to make a bit of difference if he can get that sweet, sweet validation via rallies; his followers are QAnon, for god sake did you really think sense factored in here anywhere? His word salad will just get worse but it’s incomprehensibility isn’t a detriment. Trump and his followers are likely still going to be bitter in 2 years, especially if they fail to retake the House or lose more seats and he says it’s because they’ve abandoned MAGA. In 4 years, they’ll either have found their new Daddy in someone like Hawley or Trump will just slide right back into the fringe’s leadership role.
Unless he goes completely around the bend in true Florida Man fashion in the next year or so, he’s got a good shot at spoiling GOP chances in 2024….. and I’m no longer sure that insanity isn’t enough to keep him down.
Cursing James Joyner is my favorite James Joyner. I’m giving you a high five, a standing ovation, and a huge thumbs up.
It will likely come from the right, but not necessarily from the GOP.
I can picture a ruthless Democrat, or an independent running for the Democratic nomination, pulling off a populist shtick in the manner of Trump, and winning the nomination. If they then win the election and make a hash of things, but remain popular with their base and party, they may then stage a coup when they lose.
This is not a likely scenario, but it’s possible. Less so because democrats award delegates more proportionally in the primaries.
Or it may come from the military, as it has come in so many other countries. we know there are plenty of Trump sympathizers there. Imagine a close election, involving Trump or not, like in 2000 perhaps, but which goes to the Democratic candidate, and then our coup minded officer strikes.
Paul and other SOBs may find this thrilling. They should read up on coups. An awful lot of people on the “winning” side wind up dead. Rivals need to be eliminated, along with their supporters. And the same goes for some would-be rivals.
Swearing is always most effective when it’s used sparingly.
@Kathy: Wait a second… are you saying the leopard eats the faces of party members, too? No, that can’t possibly be right. 😐
I’m sure you likely already know this, but that would not be possible given the process they are required to follow that includes drafting it, getting it on the House calendar which itself has a process, etc. It could have gone quicker than it did, but not by much.
trump is not one to let things go. Things may change, but I’m sure right now he plans to run again in 2024, unless he starts running soon. How else is he going to prove he’s a real winner, and appoint an AG who will find and punish the 2020 fraud somehow.
That said, he can easily bow out any time, by claiming he’s been silenced on social media, and thus he’s incapable of getting his message out. It’s so unfair! Many people say that.
They weren’t in session for six entire days after the attack. The impeachment itself only took two days once they got around to it – it could have been done in a single day. Then the House waited almost two weeks to send it to the Senate.
And this is impeachment, not regular business. Calendars can be changed and cleared. Scheduled recesses or pro forma sessions can be turned into regular or special or emergency sessions.
The House has regularly shown the ability to get things done quickly – when the leadership is motivated to do so. Clearly, in this case, they did not have that motivation.
Agreed. And I am here for it.
I have never seen profanity in intelligent writing like I have in the past year or so. And in my Facebook posts, I’ve certainly been guilty as well.
Of course some of my friends have clutched their pearls over it, but what do people expect when things have devolved into such a shitshow?
I’m just glad I’m not the only one. And I have to giggle when very mild mannered, church-going friends get to cussing. Because seriously… If they are cussing, the pearl-clutchers better pay attention.
But still hard to believe that people could be more outraged over the F word than they are over the danger that Trump put this country in.
Speaking of which…. Anyone see Tim Miller’s essay on John Cornyn yesterday? Straight up referred to him as a “fucking asshole”. That made me laugh, too. Hey. Someone has gotta call it out. And if the shoe fits…..
Not being in office doesn’t mean impeachment can’t happen successfully – the model is Belknap, convicted after he resigned.
But they are not ‘punishments’, are they. They are political responses to protect the nation when a public official misbehaves. It’s likely that the founders anticipated impeachment would mainly be used to remove from office officials who had been convicted – and punished – by the normal legal system but who declined to resign, thereby bringing government into disrepute. It’s only in recent times that the mysterious doctrine has emerged of presidential immunity from prosecution, meaning impeachment has become the only response available to presidential misconduct.
I find it thoroughly undemocratic that a few senators could tell Americans they were not allowed to vote for someone who was otherwise entitled to run for office. If the Republican Party wants to nominate a proven loser for the presidency in 2024, and he goes on to win the election, so be it. Personally I believe it’s a fantasy, and if the party is stupid enough to try it, the only beneficiaries will be Democrats.
Most Republican senators are obviously going to duck the substance of the charges against Trump and piously proclaim they are taking a principled stand to defend the constitution. The virtue of a censure motion is that they couldn’t avoid expressing a position with legalistic deflections. Hearing them explain why they don’t believe Trump’s conduct deserves censure would be a fascinating exercise.
I’m not surprised at all. They remain fearful of the basemonster that they created and Trump fed steroids. They don’t want to vote to convict, even though privately many (and I would wager a majority) of them believe it to be merited, for one simple reason – they are more interested in keeping their seats than they are in doing their jobs.
They’re going to find whatever argument allows them to sidestep the vote at all, or alternatively they’re going to vote not to convict, because they want to get reelected. They’ll do whatever they have to do, cheapen and debase themselves in whatever ways are required, to stay at the table. The group of people which should represent the pinnacle of integrity in our system of government has instead come to be the nadir. You wouldn’t buy a used car from these people. It’s really that simple.
What the Republicans are arguing here is that a lame duck President can be utterly lawless. He can’t be prosecuted. He can’t be impeached. So all the restraints are off between the election and the inauguration.
They are uninterested in the truth for a reason: Banning Trump from further offices is unnecessary. Trump has destroyed himself, it will just take a bit of time to play out. Let the crows and maggots of the SDNY (and others) begin pick at this carcass…and one by one his minions will start to accept his demise. The have been conditioned to hate “losers”, have they not?
Yes, he will siphon off some GOP$ with his “Office of the Ex President” BS for a time, but his actions have so alienated the general public he is no longer a viable threat. However, for us, participating in an effort to ban him right now? Places the Big Bad Wolf on all our doorsteps faster than you can say “O sh%t!” Mitch was just running this flag up the pole to see if anyone would salute it, his support has been lame at best. He’ not going to punish us for declining this offer, so…. we will.