What is the point of impeaching Donald Trump?
With only days left in Trump’s term, there is barely any time remaining for the Senate to conduct a trial and vote on impeachment before the inauguration of president-elect Biden on January 20. The Senate is in recess until January 19. An early recall of the chamber to consider impeachment would require the unanimous consent of all senators, which is all but inconceivable.
Senate Majority Leader Mitch McConnell circulated a memo on Friday outlining how the Senate would proceed should the House impeach. He noted that a trial could not be held until after Trump leaves office, implying that the point would be moot. But it’s not McConnell’s call.
As of January 3, the 117th Congress has been seated. The Senate must consider any articles of impeachment approved by the House, even after Trump departs Washington. And, with the Democrats about to assume control of the Senate, we should expect a thorough trial. Legislators from both parties demand this.
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House Majority Whip Jim Clyburn stated yesterday that even if the House does impeach the president, the articles might not be transmitted to the Senate for several months. This would avoid interference with Biden’s first 100 days agenda.
So why bother?
First, Democrats want to draw a line in the sand. Inciting insurrection against the seat of government is treason. If this is not impeachable, then nothing is. Trump might not be evicted from the White House prematurely, but history will permanently mark how Congress responded to the first invasion of the Capitol since the British burned it down in 1814.
Second, Trump eluded conviction during his impeachment trial last year. History will record him as one of only three presidents to be impeached, but a second impeachment would give him a unique notoriety.
Third, Trump has been protected from legal liability during his tenure as president. According to an opinion issued by the Office of Legal Counsel of the Department of Justice, “indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions”.
With his purported intention to issue a self-pardon, and the political obstacles to any post-presidential charges, Trump may never be held to account for his misconduct. Another impeachment might be the only practical way to punish him.
Fourth, an impeachment conviction does not merely remove an official from office. Following a conviction, the Senate has the prerogative to prohibit the official from ever seeking public office again.
Notably, while conviction requires support by a two-thirds majority in the Senate, a permanent ban can be carried by simple majority vote. A growing number of Republicans would privately favour this outcome, particularly as it would put an immediate halt on Trump’s pledge to run again in 2024.
There is precedent for pursuing an official even after they have left office. William Belknap, secretary of war under president Ulysses S. Grant, resigned minutes before the House was set to impeach him for bribery. Undeterred by his decision, the House followed through with five articles of impeachment, and the Senate held a trial. While a majority of Senators voted to convict on all complaints, the two-thirds threshold was not met and Belknap was acquitted. However this process set the standard.
When Trump was riding high and ruling his party unchallenged a year ago, conviction in the Senate was unimaginable. Only one Republican senator, former presidential candidate Mitt Romney, voted to convict. None of his colleagues had the courage to join him.
Much has changed since then. Most importantly, Trump lost the election in November. His power is ebbing. His courtiers are fleeing the sinking ship. He will remain a force in the GOP, but this pales in comparison to the power of the presidency.
The attack on the Capitol has presented Republicans with a fork in the road: double down and continue to excuse Trump’s conduct, or break with him and seek to reclaim their party from the Trumpist cult while they still can.
It’s anyone’s guess whether Trump would escape a rematch in the Senate. His luck may have finally run out.