With a little more than one week before President Trump is expected to officially hand over the White House to Joe Biden, House Democrats on January 12 pushed through a resolution – with one Republican vote – that calls upon Vice President Mike Pence to remove from office President Donald Trump by invoking the 25th Amendment. Pence had already informed the House that he had no intention of doing so, but desperate to erase the legacy of the man who, arguably, has already become one of the most famous of all American presidents, Democrats will move swiftly to plan B: impeachment.
“I will not now yield to efforts in the House of Representatives to play political games at a time so serious in the life of our nation,” the vice president wrote in a letter to House Speaker Nancy Pelosi (D-CA) even before the chamber voted on the Democrats’ resolution. “I urge you and every member of Congress to avoid actions that would further divide and inflame passions of the moment.”
Of course, impeachment is about more than trying to erase the Trumpist America First doctrine; it appears primarily designed to ensure that the man who became the nemesis of the Washington business as usual culture will never again be eligible to hold public office.
Impeachment As a Weapon
The big question, then, is whether the scheme is lawful. Constitutional attorneys and scholars may argue until they are blue in the face over this question but, if one is to interpret the Constitution as written, then impeachment itself does not normally apply to an individual who does not hold public office. If that were not the case, then hypothetical future scenarios exist in which former presidents who served many years before could be impeached for actions they took when they were in the White House.
Would a potential Republican House of Representatives, two years from now, not be able to impeach Barack Obama for his failure to protect the U.S. consulate in Benghazi? Would a Republican Senate not be able to convict him?
Of course, some would argue that Donald Trump is still the president – even if for only one more week, it must be assumed – and therefore, the House is within its rights to impeach him. The Senate, however, is under no obligation to hold a trial. Since, as Senate Majority Leader Mitch McConnell (R-KY) says, Senate rules dictate the body could not commence with a trial until January 20 at the earliest – the day the next presidential term officially begins – the upper chamber would find itself in almost unchartered waters by trying a former public official. While there are several historical instances of officials facing impeachment after their terms are over, this has never been applied to a president.
The Biden Complication
Of course, the added complication for Biden is that the Senate reserves the authority to approve most of his cabinet nominees. This process involves hearings, followed by votes. It is no easy task to accomplish if the upper chamber is also embroiled in an impeachment trial.
All of these issues can be quickly resolved in the Democrats’ favor, of course, if Senate Republicans simply roll over and give their adversaries exactly what they want. In the current political climate, that is not difficult to imagine. The GOP appears to have all but abandoned the president who brought it back from the dead, and McConnell now seems only too eager to do whatever he can to rid himself of Trump in order to get the Washington gravy train back on track.
Should the Senate move forward with an impeachment trial after Joe Biden is inaugurated, the United States would be in unchartered waters. Congress will have become the most powerful of the three supposedly co-equal branches of government, and the Founding Fathers’ vision will be consigned to the trash can of history.
Read more from Graham J. Noble.
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