With Donald Trump’s second impeachment in the bag, all eyes turn to the Senate and the impending trial. Conviction: Will they, won’t they – can they? These may be the most obvious, but they certainly aren’t the only questions.
Mitch McConnell, Wrench in the Gears?
It’s no secret the Democrats want President Trump out of office as soon as possible, but the man who sets the schedule for the Senate, Mitch McConnell (R-KY) is in no hurry. Minority Leader Chuck Schumer (D-NY) has reached out to his Republican counterpart in hopes of bringing the Senate back in emergency session to begin the trial, but McConnell has refused. As such, those who hope to convict Trump will have to wait until January 19 – one day before he leaves office – to begin the process.
McConnell cites a few reasons for waiting. For one, he says he isn’t convinced one way or the other, but he wants plenty of time to have a fair trial and weigh his options. Since that wouldn’t be possible in the time remaining, there’s no point bringing everyone back to get started now. Those who want Trump gone, of course, say it is imperative that the Senate meet quickly to convict the president, revealing absolutely no desire for the aforementioned fair trial.
Additionally, McConnell thinks America should focus on the smooth transition of power from the Trump administration to Team Biden and that muddying the political waters with the impeachment trial would only serve to further incite unrest and incivility. After suffering the fear and, probably, humiliation of having Biden’s certification process interrupted by protesters storming the Capitol, the lead Republican doesn’t want to risk a repeat. He says the government should be “completely focused on facilitating a safe inauguration and an orderly transfer of power.”
A Question of Constitutionality
McConnell may believe it would be better to hold the trial after Trump leaves office, but that raises another question: Can a president be impeached after leaving office? Would Trump have been the fourth president impeached rather than the third if Richard Nixon hadn’t escaped impeachment by resigning before the House could vote?
This is, in fact, what the language of the Constitution seems to suggest. Sections 2 and 3 of Article I establish and define impeachment. Section 3 explains that “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.”
The purpose of impeachment is quite clearly laid out to be removing an official from office first and foremost, followed by disqualifying said official from holding office again. So, if the ability to be removed from office is a prerequisite to being impeached and convicted, does the Senate even have the authority to continue once Trump is out of office? And another worthy question: What would be the point?
While Nixon may have escaped impeachment by resignation, there is a precedent for an official being impeached after leaving office. In 1876, the 44th Congress – with a Republican-led Senate and a Democrat majority in the House – investigated Ulysses Grant’s war secretary, William Belknap, for corruption. Just minutes before the House voted to impeach him, Belknap resigned. The House persisted, however, and impeached the man. The Senate then determined that it held jurisdiction over former officials as well as current ones and held a full trial that took months. A majority voted to convict, but they fell short of the two-thirds requirement by one vote.
Does this mean that the Senate does have the authority to convict Donald Trump the former president after he leaves office? Maybe and maybe not. Congress simply declaring that it has a power doesn’t necessarily make it so.
Moving that Senate Needle
Assuming the Senate does meet shortly after Biden’s inauguration to hold a trial for Trump’s second impeachment, could the Democrats muster the support of the required 17 Senate Republicans to convict? That may be a stretch. McConnell has certainly raised some eyebrows by saying he has yet to decide, and it seems there’s a good chance he would vote to convict. Additionally, Sen. Lisa Murkowski (R-AK) said specifically that she thought Trump “committed an impeachable offense.” Sen. Ben Sasse (R-NE) is also considering it.
But three GOP senators is a far cry from 17, though it would be on par with the percentage of House Republicans – just shy of 5% at 10 members – who voted to impeach. And it’s not guaranteed that every Democrat will vote to convict. Sen. Joe Manchin (D-WV) called the effort an “ill-advised” way to kick off the Biden presidency. But with questions of legitimacy sure to surround the Senate trial, what would happen if Trump simply chose to ignore it? Even if convicted, what would happen if Trump attempted to run for president again in 2024 and made the argument that the impeachment didn’t count because the Senate didn’t have constitutional authority to convict him after he left office? Would we then get an answer from the courts as to just where the Senate’s authority ends?
Can the GOP Afford to Alienate Trump – and 73 Million Voters?
There’s one final question – and perhaps it’s the most immediate and relevant to Republicans who might want to distance themselves from Trump. More than 73 million Americans voted to re-elect Trump. That’s 11 million more votes than he received in 2016. Aside from Biden’s 80 million, that’s more than any candidate has ever received in U.S. election history. In 2022, 34 of the 100 Senate seats are up for grabs – and a whopping 20 of them are currently occupied by Republicans. If at least 17 GOP senators join the Democrats in voting to convict Trump, what will that mean for the Republican Party – and those 17 – in 2022 and beyond?
Read more from James Fite.