GELFAND’S WORLD--The new argument on the right is that it would be unconstitutional to impeach Donald J Trump now that he is out of office.
When I first heard this claim, it seemed a little like what passed for legal chatter among teenagers when I was in high school. Some older, supposedly knowledgeable kid would spout off that if you were being chased by a police car but got past the city limits, he couldn't pull you over. A few teenagers learned the falsity of that belief the hard way.
The idea that Trump could not be convicted for inciting is absurd both in precedent and in Constitutional text, but it appeals to people who don't know the Constitution and to people who are looking for an excuse to bash Democrats.
It should be remembered that Trump's alleged violations happened while he was president and his impeachment also happened while he was president. The fact that the senate under Mitch McConnell made clear that it would not take up the matter until after January 18 was McConnell's decision. The senate could have taken up the matter of removing Trump from office the very same day of the impeachment, or the day after, and it would have been within Trump's term of office. The fact that it won't happen for a couple of weeks is on Mitch.
Republican senators have also been talking about preserving Trump's right to due process. The fact that this is also irrelevant is supported by referring to what the Constitution says about impeachment. In particular, the Constitution doesn't really set much in the way of limits on the process, basically leaving it to the two houses of congress.
Specifically, the House has sole power to impeach, and the Senate has the responsibility of carrying out the trial. How they do these things is left to them, other than the fact that to convict, the senate needs two-thirds of those present.
The University of Chicago law school provides a summary provided here of the exact language taken from the few parts of the Constitution that speak directly to this subject, quoted below (italics mine). The founders could be terse:
Article 1, Section 2, Clause 5
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article 1, Section 3, Clauses 6 and 7
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.
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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
Article 2, Section 4
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article 3, Section 1
. . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour. . . .
So there it is, a series of rules inserted among the first 3 articles and themselves totaling less than 200 words. There is nothing which says that the House cannot impeach the president during his final two weeks in office and nothing which specifies when the Senate is required to take the matter up. (Not to be snarky about this, but Mitch McConnell asserted the senate's right to avoid taking up the confirmation vote for Judge Merrick Garland's appointment to the Supreme Court -- for a period that extended nearly a year, but McConnell expedited the appointments of incompetent appointees during the Trump presidency.)
A large number of legal scholars have disagreed with the assertion that Trump's impeachment can no longer be tried by the senate. In fact, there is even a precedent for impeaching an official who is no longer in office, as the above cited article points out -- a one-time Secretary of War under President Grant resigned but was then impeached.
As mentioned above, there is one other little point in the Constitutional rules cited above. Conviction of the ex-president requires a two-thirds vote of the senators who are present at the time the senate votes. As various people have pointed out, twenty-five Republican senators could refuse to participate in the impeachment trial, in which case the Democrats would have enough votes on their own to convict Donald Trump and bar him from ever holding office again. You can play with these numbers as much as you like. For example, if 4 Republicans were to join 50 Democrats and independents, then it would only require that 19 Republican senators absent themselves for there to be the votes to convict. This is admittedly an unlikely scenario, but as recent years have shown us, there are many things that don't fit precedent but are nonetheless legal under the Constitution. Such an action would provide something of an out for Republicans who don't dare vote to convict, but can't stomach voting to acquit. They can pretend they are avoiding the impeachment as a matter of principle.
The impeachment trial runs head-on into legal defenses of the capitol rioters
This impeachment trial in the senate is going to differ from Trump's previous trial because -- with Democratic control of the senate -- it will be possible to hear from witnesses. It would be interesting if the House managers of the trial (in other words, those who will be prosecuting the case) brought in a couple of people who had participated in the capitol riot. Some of them -- at least their lawyers, anyway -- have been trying to argue that they were just following the president's instructions. This has been circulating in the national news.
Of course Trump's defenders in the Senate can quote from Trump's speech, claiming that the literal text does not include any direct call to attack the capitol or to attack the congress. We've heard that same argument from some of Trump's defenders in these pages. The counterargument is that Trump is good at communicating what he wants with a wink and a nod, as Michael Cohen explained in his congressional testimony.
But there is a different argument for the prosecution
It matters whether the president either knew in advance that there were plots to take over the capitol or knew during the attack itself that the building had fallen to the rioters. These are critically important points if the senators are taking the case seriously, because the president either was massively negligent in not preparing the capitol for the expected onslaught, or was criminally negligent both prior to the riot and in refusing to take action when the capitol had fallen. (And there could potentially be testimony by former White House staffers regarding the president's knowledge of the assault on the capitol while it was taking place and he was watching it on television.)
We know that law enforcement knew in advance of the riot plans, and it would have been a normal part of the daily intelligence briefing. Even if the president had been told the beginnings of the warning and said that he didn't want to be bothered, that would possibly be enough to convict right there.
Testimony by capitol rioters could, paradoxically, be a part of the healing process
The big question in terms of this year's politics: Will the capitol rioters now claim that they were misled about the election being rigged? That would be an important outcome. Many Trump followers will find ways to continue rationalizing the Big Lie, but if a few rioters confess that they now realize they were duped, it would go a long way to help a lot of people to come to their senses, while simultaneously creating a split in the wackier right wing claims. I don't think that there has to be a complete turnover in personal views -- people can continue to hold onto skepticism about whether the 2020 elections were crystal clear, but give up on being absolutely certain that the election was stolen. In other words, they could take a position much like Democrats have held about Texas and Illinois.
There is a bigger problem that the right wing senators and talk radio hosts are playing on, and it is worth discussing at some point. It's the widespread ignorance of people who don't know the Constitution but want to pretend it means whatever they want it to mean. We hear it in statements made by the capitol rioters -- roughly paraphrased, they said things like, "I'm here to protect the Constitution."
Many of them are particularly obsessed with the Second Amendment, but obviously muddled about the remaining parts.
This is an important issue but one for another time.
A final word on the necessity for this action
Another fallacious argument being put forth from some quarters is that Trump is already gone from office and the trial won't help with healing, so we should just get on with life and governing, and leave him to his retirement. Along with millions of others, I believe that it's important to do justice when a crime this momentous has taken place. We don't ignore murder just because it took twenty years to find the killer. The attempt to slow the work of the congress was criminal and is worthy of the senate taking action.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at firstname.lastname@example.org)