Yeah, the Senate Can and Should Convict Him After He’s Gone

There’s a bit of a disagreement about whether the Senate can vote to convict our impeached president after he toddles off on January 20th. The legal experts who say the Senate can do it and should do it have by far the best argument.

Yesterday, Prof. Laurence Tribe of Harvard Law explained why the Senate can act.

Prof. Stephen Vladeck of the University of Texas law school explains it below:

Yesterday’s vote by the House of Representatives to impeach President Txxxx (again) came notwithstanding objections from Republicans that such a move is unnecessary. Because Mr. Txxxx’s term ends at noon on Jan. 20, the argument goes, there is little point in expending energy to reinforce what is already, despite Mr. Txxxx’s best efforts, a legal inevitability.

But some commentators have gone further — arguing not only that Congress should not impeach and remove Mr. Txxxx but also that come Jan. 20, it cannot do so, because the Constitution doesn’t allow for the impeachment and removal of “former” officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Txxxx is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary.

With the Senate not expected to reconvene until next Tuesday, Mr. Txxxx’s impeachment trial could not begin until Wednesday afternoon at the earliest — after the inauguration of his successor. Article II, Section 4 of the Constitution provides that 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.” If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.

But Article I, Section 3 says more. In describing the powers of the Senate to conduct an impeachment trial, it provides that “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” (emphasis added).

That latter clause is the key, because it drives home that the Senate has two decisions to make in impeachment cases: First, it must decide whether an officer should be removed. Then it must decide whether this person should be disqualified from holding any future federal office. Indeed, of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them — reinforcing that removal and disqualification are separate inquiries. And as this procedure and historical practice make clear, by the time the Senate votes on disqualification, the officer has already been removed. In other words, disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.

More than that, the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. In 1876, disgraced Secretary of War William Belknap tried exactly that — resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congress’s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the Senate as a body first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried “for acts done as Secretary of War, notwithstanding his resignation of said office” before he was impeached.

The Belknap case cemented two precedents: Congress can impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict. So, when President Richard Nixon resigned in August 1974 in an effort to forestall his seemingly inevitable impeachment and removal, that act did not deprive Congress of the constitutional power to still impeach, remove and disqualify him; it merely mitigated the perceived political expediency of doing so. By resigning, Mr. Nixon took at least some responsibility for his conduct. And the circumstances of his resignation left no reason to believe that he would ever again be a candidate for federal office.

But there is no indication that Mr. Txxxx plans to resign. His term ends next Wednesday only because Section 1 of the 20th Amendment says so. He is not going willingly. And he has made no secret of his interest in running for president again in 2024. What’s more, under the Former Presidents Act of 1958, he stands to receive significant financial and other tangible benefits, including a handsome annual stipend, funds for offices and a staff, and a pension. But that same statute denies such benefits to a former president who was removed “pursuant to Section 4 of Article II of the Constitution.” So whether Mr. Txxxx is impeached, convicted and disqualified determines not only whether he could ever again hold federal office but may also bear upon the extent to which federal taxpayers will be subsidizing his activities in the years to come.

The conservative argument would say that the Constitution leaves Congress powerless to deal with such a case — or with any scenario in which a president commits grossly impeachable acts in his final days in office. Not so. Whether he should be convicted and disqualified remains, under the Constitution, in the sole purview of the Senate.

And whereas the conservative argument against a post-Jan. 20 impeachment presupposes that the matter will inevitably end up in the courts (which may be sympathetic to Mr. Txxxx), that claim, too, is erroneous. In 1993, the Supreme Court held that it’s not for the courts to review the propriety of impeachments. As Chief Justice William Rehnquist wrote, neither any extrinsic evidence from the Constitutional Convention nor contemporaneous commentary suggested that the founders even contemplated “the possibility of judicial review in the context of the impeachment powers.” It’s ultimately Congress’s call — for former officers as much as current ones.

Unquote.

If the authors of the Constitution had been a bit more careful, they would have written “removal or disqualification”, not “removal and”. Damn founding fathers! That blemish seems to be the only reason to say the Senate can’t act after the 20th. As the professors explain, it’s not a good reason and not how impeachment has worked in the past.

I don’t know if there are 17 Republican senators who will agree to convict DJT (that plus the 50 Democrats will be enough). There are excellent reasons to do so. For one thing, he deserves to be convicted. Another reason is it will permit the Republicans to free themselves from the threat that he will run again in 2024 (actually, it will stop him running again and seeking campaign contributions as of January 20th, which he will no doubt do if given the chance). Any Republican senator who wants to run for president has a motive to remove competition.

A third reason is that we shouldn’t have to subsidize this guy’s gilded lifestyle after he leaves office. He’s supposed to be a billionaire. Let him uses his own resources, assuming he stays out of prison. In particular, he can afford to hire his own security detail, especially now that it’s been revealed that Ivanka and Jared wouldn’t let the Secret Service use the bathrooms in their D.C. mansion.

PS: I don’t know if it’s true, but former presidents are supposedly eligible for top secret briefings from the government. We shouldn’t trust one more secret to the Lord of the Lies and his extremely big mouth.

One Real Bad Chicken

A personal note:

I can’t bring myself to watch the proceedings. I wanted to hear what the good guys had to say a year ago, because the issues were relatively murky. There was a timeline to understand. I wanted to see the argument laid out one step at a time. The case for impeachment this time is simple. 

On top of that, I’ve gotten the gist of the opposition’s argument. Somebody on Twitter summed up my reaction:

Just in awe of the shamelessness of GOP reps who voted to decertify the election results one week ago today standing up and kvetching that a quick impeachment is a reckless application of the House’s procedural powers.

“You’re using this as a weapon, and you’re destroying this little experiment in self-government.” –Rep. Gohmert, referring not to his own attempt to get Pence to unilaterally throw out the 2020 election but to Pelosi not routing impeachment through the proper committees. 

I wonder how many of them will actually vote for the impeachment. So far only five have said they will. More of them would except they’re afraid for their lives. They fear their own voters. They’ve said that in private (of course). They fear their own voters, the ones who could have lynched Pence and Pelosi, and blown up the Capitol if they’d been more competent. An enormous insane bloodthirsty fascist chicken has come home to roost.

Other tweets I’ve been saving. One from Prof. Timothy Snyder:

The claim that Txxxx won the election is a Big Lie. A Big Lie changes reality. To believe it, people must disbelieve their senses, distrust their fellow citizens, and live in a world of faith. 

A Big Lie demands conspiracy thinking, since all who doubt it are seen as traitors.

A Big Lie undoes a society, since it divides citizens into believers and unbelievers.

A Big Lie destroys democracy, since people who are convinced that nothing is true but the utterances of their leader ignore voting and its results.

A Big Lie must bring violence, as it has.

A Big Lie can never be told just by one person. Txxxx is the originator of this Big Lie, but it could never have flourished without his allies on Capitol Hill.

There is a cure for the Big Lie. Our elected representatives should tell the truth, without dissimulation, about the results of the 2020 election. Politicians who do not tell the simple truth perpetuate the Big Lie, further an alternative reality, support conspiracy theories, weaken democracy, and foment violence far worse than that of January 6, 2021.

One from Prof. Paul Krugman:

The basic story of the [Republican Party] is that it was taken over by plutocrats, who invited racists and conspiracy theorists into the tent because they thought it would help them cut taxes. Then they woke up one day and realized that the crazies were in charge.

And one in response to the president’s latest statement on the matter:

If the man had any interest at all in easing tensions and calming tempers, he’d hold a televised press conference conceding the election, communicating that there was no evidence of fraud, that Biden will legitimately take office on the 20th, and there’s no reason to protest it.

Materials In Support of Impeaching Donald John Trump For High Crimes and Misdemeanors

This is the introduction to the document issued today by Democrats on the House Judiciary Committee in support of impeaching the president:

The Constitution grants the House of Representatives the “sole Power of Impeachment,” not merely as a safeguard for the nation between elections, but also in cases where the removal of the President is urgent and necessary to preserve the security of the constitutional order. The House must invoke this power now to impeach President Txxxx for inciting an insurrection on January 6, 2021. President Txxxx engaged in high Crimes and Misdemeanors when he urged his supporters to storm the United States Capitol Building and then failed to stop the ensuing violence. His actions marked the culmination of an extensive and unprecedented effort to overturn the results of the presidential election.

As alleged in the Article of Impeachment and described in this report, President Txxxx has acted in a manner grossly incompatible with self-governance and the rule of law. His continued hold on the Office of the Presidency, even for only a few more days, represents a clear and present danger to the United States.

President Txxxx has engaged in a prolonged effort to overturn the results of the 2020 presidential election and maintain his grip on power. He has spent months spreading disinformation about the results—falsely claiming that he “won by a landslide,” that the election was being “stolen,” and that the reported results are somehow fraudulent. He has stated that it would be illegitimate to accept the results of the election as certified by state officials and upheld by state and federal courts, and he has implied that accepting those results would pose an existential threat to the country, its democracy, and the freedoms of his political supporters. He has directly threatened government officials to “find” lost votes or face criminal penalties, encouraged his own Vice President to unlawfully overturn the election results and, ultimately, incited his supporters to take violent action and prevent the counting of the election results.

President Txxxx invited his political supporters to Washington, D.C. on January 6, 2021, the day fixed by law for the counting of electoral votes. The crowd that gathered in the Ellipse that morning was large, angry, and widely reported to be preparing for violent action. At that rally, the President delivered an incendiary speech to his supporters. Among other statements, President Txxxx reiterated false claims that “we won this election, and we won it by a landslide.” He stated that “if you don’t fight like hell, you’re not going to have a country anymore.” And then he exhorted his supporters to “walk down Pennsylvania Avenue” to prevent the Congress from confirming the election of “an illegitimate President.”

These comments directly incited a violent attack on the Capitol that threatened the safety and lives of the Vice President, the Speaker of the House, and the President pro tempore of the Senate, the first three individuals in the line of succession to the presidency. The rioters attacked law enforcement officers, unleashed chaos and terror among Members and staffers and their families, occupied the Senate Chamber and Speaker Nancy Pelosi’s office, ransacked other offices, vandalized government property, and succeeded in interfering with Congress’s performance of its constitutional duty to count the electoral votes. Five people were killed, including a U.S. Capitol police officer, and more than fifty police officers were seriously injured.

It is indisputable that the President encouraged—and that his actions foreseeably resulted in—the terrorist attack that occurred. This alone would constitute grounds for impeachment. There is no place in our government for any officer, much less a President, who incites armed insurrection to overturn the results of our democratic elections. Even after it became clear that a mob of his supporters had breached the Capitol perimeter and was violently attacking those inside, President Txxxx failed to take steps to stop the insurrection. While violent insurrectionists occupied parts of the Capitol, President Txxxx ignored or rejected repeated real-time entreaties from Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer to appeal to his followers to exit the Capitol. Instead, he continued to encourage his supporters and excoriated the Vice President for not “hav[ing] the courage to do what should have been done.” He called at least one Republican Senator, not to check on his safety, but to ask for additional delay to the certification of the election when the Congress reconvened.

When he finally issued a public statement addressing the violence hours after it began, President Txxxx persisted in falsely asserting that “we had an election that was stolen from us,” and he told the rioters, “[w]e love you, you’re very special.” And at the end of the day—when the extent of the insurrection and the damage to our nation was clear—he declared that “[t]hese are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away.” President Txxxx concluded: “Remember this day forever!” Most recently, the President publicly denied responsibility for the attack, claiming his words were “totally appropriate.”

The threat that manifested in the Capitol on January 6, 2021 is ongoing. The emergency is still with us. Reports suggest that the President’s supporters are threatening additional violence in Washington, D.C. and in state capitals across the nation. The Fourteenth Amendment prohibits an officer of the United States who has “engaged in insurrection or rebellion” from “hold[ing] any office . . . under the United States.” Yet, despite widespread and bipartisan calls for his immediate resignation, the President has refused to leave office. The Vice President has thus far failed to invoke the Twenty-fifth Amendment to remove the President from office. The House has taken every step short of impeachment to contain the danger. Now it is time to consider this last, grave, necessary step.

Impeachment is not a punishment of prior wrongs, but a protection against future evils. It is true that the President’s remaining term is limited—but a President capable of fomenting a violent insurrection in the Capitol is capable of greater dangers still. He must be removed from office as swiftly as the Constitution allows. He must also be disqualified to prevent the recurrence of the extraordinary threat he presents. For these reasons, the House must impeach President Donald J. Trump.

How To Begin Healing and Moving On

Republicans claim to be the party of morality and personal responsibility, yet Republican members of Congress are already insisting that Democrats let bygones be bygones. They say that holding our criminal president accountable for the insurrection by removing him from office would only antagonize the rabid, radical right, i.e. millions of Republican voters, which would lead to more violence. Fortunately, a few Congressional Republicans have announced they support impeachment, not appeasement.

Jennifer Rubin of The Washington Post argues that there are several ways to unify the nation and begin healing:

The furniture the seditionists smashed in the Capitol has not yet been repaired. The trauma inflicted on those who experienced the event will not vanish for months or years. . . . And neither President Txxxx nor a single Republican lawmaker who held aloft the sedition banner in Congress by objecting to electoral votes has apologized. Nevertheless, Republicans are calling for unity and demanding healing, which entails “moving on” and forgetting about impeachment. . . .

Sorry, it does not work that way. Healing requires accountability and remorse from those who attacked our democracy, stormed the Capitol (or incited, funded or supported the mob) and set out to overthrow our democracy. The culprits do not get to set the timeline for reconciliation before they can be held responsible for their participation in an attempted coup.

Lots of things would be unifying or provide healing. Let’s start with these:

  • The House and Senate could unanimously affirm there was no irregularity or fraud in the election that would have changed the outcome of the presidential vote one iota.

  • The House could impeach Trump, and the Senate could come back in session to hold a trial and remove him swiftly.

  • House Minority Leader Kevin McCarthy (R-Calif.), who pulled his caucus over the cliff in the desperate hope to maintain the Big Lie and cater to Trump, could resign.

  • A combination of Democrats and all Republicans who voted to certify the electoral college results in the House and Senate could expel or censure members who objected to certification. As my colleague Michael Scherer writes, “The central question now hovering over America’s political landscape is whether one of its two major parties will allow itself to function as an extension of QAnon and other online conspiracy theory movements that have taken hold with a vocal segment of the GOP, or if it can emerge from the Txxxx era as a potential governing coalition built around ideas and some shared agreement on facts.” This action would help settle that question.

  • Corporate donors could permanently cut off support for anyone who objected to the electoral votes, an attack on our democracy.

  • Facebook, Twitter and other social media platforms could volunteer to make entirely transparent how they “curate content” and how their “algorithms decide what speech to amplify,” as Yaël Eisenstat, a former Facebook executive, suggests. We should find out how they “nudge users towards the content that will keep them engaged … [and] connect users to hate groups, who recommend conspiracy theorists.” The companies could also agree to follow the guidelines recommended by the Stop Hate for Profit campaign headed by the Anti-Defamation League and major corporate advertisers.

  • A nonpartisan commission could determine the extent to which state and federal law enforcement has been infiltrated by adherents of violent extremist groups. (The Post reports, “At least two U.S. Capitol Police officers have been suspended and more than a dozen others are under investigation for suspected involvement with or inappropriate support for the Wednesday demonstration that turned into a deadly riot at the Capitol, according to two congressional officials briefed on the developments.”)

  • Right-wing media outlets, pundits, talk-show personalities and TV hosts who perpetrated the lie that there was widespread election fraud could retract their statements and affirm there is no factual basis for these assertions.

  • The voters in the 18 states whose attorneys general filed a brief to throw out other states’ electoral votes could recall or vote out these officials.

That should be enough to get us started. Beyond that, there are many good ideas for enhancing civics education, media literacy and access to voting on a permanent basis (e.g., pass the John Lewis Voting Rights Advancement Act; make available universal, secure voting by mail). You can never have too much healing.

Unquote.

Democrats on the House Judiciary Committee today released a 70-page document, “Materials in Support of H. Res. 24, Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors”. It says “Impeachment is not a punishment of prior wrongs, but a protection against future evils” (which would include Donnie being president again).

The third-ranking House Republican, the ultra-conservative Liz Cheney, released a statement:

Much more will become clear in coming days and weeks, but what we know now is enough. The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.

I will vote to impeach the President.

Also today:

The acting US attorney for the District of Columbia, Michael Sherwin, has indicated that many amid the hundreds of pro-Txxxx rioters who violently invaded the US Capitol  . . .  are suspected in a “mind-blowing” range of crimes, including felony murder and sedition and conspiracy.

There are at least 160 federal criminal cases open. [He said the FBI and other agencies] are ready to track down individuals all across the country, apprehend them wherever possible and arrest hundreds if not thousands of people.

“The range of criminal conduct was unmatched,” Sherwin said. He warned lawbreakers “You will be charged and you will be found.”

Yes, let the healing begin!

It’s Time To Be Divisive

Deutsche Bank announced it will no longer do business with our criminal president. It’s a divisive decision, creating a division between their business and one of their customers. A number of big corporations have decided to divide themselves from Republican lawmakers who rejected the presidential election. They’re no longer giving them money for their political campaigns. Sometimes we need to draw clear lines between us and them. From Jamelle Bouie of The New York Times:

The Republican Party has devised its response to the push to impeach the president over his role in the attack on the Capitol last week, and it is so cynical as to shock the conscience.

“Now the Democrats are going to try to remove the president from office just seven days before he is set to leave anyway,” said Representative Jim Jordan of Ohio, who voted with 146 other Republicans in Congress not to accept the results of the 2020 presidential election. “I do not see how this unifies the country.”

The House minority leader, Kevin McCarthy, also said that impeaching the president “will only divide our country more.”

“As leaders, we must call on our better angels and refocus our efforts on working directly for the American people,” McCarthy said in a statement given two days after he also voted not to accept the results of a free and fair election in which his favored candidate lost. . . .

I’m reminded, here, of one particular passage from Abraham Lincoln’s 1860 address at Cooper Union in Manhattan, in which he criticized the political brinkmanship of Southern elites who blamed their Northern opponents for their own threats to break the union over slavery.

But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, “Stand and deliver, or I shall kill you, and then you will be a murderer!”

There are a handful of Senate Republicans, like Pat Toomey of Pennsylvania, who are open to impeachment. But much of the Republican response is exactly this kind of threat: If you hold President Trump accountable for his actions, then we won’t help you unify the country.

Or, as another Republican, Representative Kevin Brady of Texas, said on Twitter,

Those calling for impeachment or invoking the 25th Amendment in response to President Trump’s rhetoric this week are themselves engaging in intemperate and inflammatory language and calling for action that is equally irresponsible and could well incite further violence.

These cries of divisiveness aren’t just the crocodile tears of bad-faith actors. They serve a purpose, which is to pre-emptively blame Democrats for the Republican partisan rancor that will follow after Joe Biden is inaugurated next week. It is another way of saying that they, meaning Democrats, shot first, so we, meaning Republicans, are absolved of any responsibility for our actions. If Democrats want some semblance of normalcy — if they want to be able to govern — then the price for Republicans is impunity for Trump.

House Democrats have already introduced their resolution to impeach the president, formally charging President Trump with “incitement of insurrection” for his role in the attack on the Capitol. There is still a ways to go in this process, but it is a stronger start than I expected. But there may still be some hesitation about taking the most aggressive stance, as evidenced by Majority Whip James Clyburn’s proposal to hold off on a trial until after the first 100 days of the Biden administration.

This would be a mistake.

There is no way past this crisis — and yes, we are living through a crisis — except through it. The best way to push forward is as aggressively as possible. Anything less sends the signal that this moment isn’t as urgent as it actually is. And as we move closer to consequences for those responsible, we should continue to ignore the cries that accountability is “divisive.” Not because they’re false, but because they’re true.

Accountability is divisive. That’s the point. If there is a faction of the Republican Party that sees democracy itself as a threat to its power and influence, then it has to be cut off from the body politic. It needs to be divided from the rest of us, lest it threaten the integrity of the American republic more than it already has. Marginalizing that faction — casting Txxxx and Txxxxism into the ash heap of history — will be divisive, but it is the only choice we have.

This does not mean we must cast out the 74 million Americans who voted for the president, but it does mean we must repudiate the lies, cruelty and cult of personality on which Txxxx built his movement. It means Republicans have to acknowledge the truth — that Joe Biden won in a free and fair election — and apologize to their voters and to the country for helping to stoke the madness that struck at the Capitol.

The alternative is a false unity that leaves the wound of last Wednesday to fester until the infection gets even worse than it already is.