Republicans claim the trial is constitutionally illegitimate. Most scholars disagree.
Top Republican senators argued on Sunday that the Senate impeachment trial of former President Donald Trump set to begin this week is not constitutionally legitimate — and one even tried to suggest that Democrats might be to blame for the storming of the US Capitol.
The dismissals and distraction tactics suggest that after a brief period of uncertainty about whether to censure Trump, Republicans are poised to present a fairly united front in rejecting the case that Trump should be convicted for his role in inciting the January 6 insurrection.
Sen. Ron Johnson (D-WI) argued that 45 Republican senators already believe the Senate trial is “unconstitutional,” when speaking with Fox News’ Maria Bartiromo on Sunday. He was referring to the vote total on the Senate motion brought by Sen. Rand Paul (R-KY) in January to dismiss the impeachment trial on the basis that it’s unconstitutional to hold an impeachment trial for a private citizen. Five Republicans joined the Democrats in rejecting the motion, but every other Republican voted in favor of it. (Many legal scholars believe that such a trial is perfectly constitutional — more on that later.)
But Johnson’s subsequent comments on Fox took a more shocking turn — he floated the baseless idea that House Speaker Nancy Pelosi was to blame in some sense for the violent assault on the Capitol.
“Is this another diversionary operation? Is this meant to deflect away from potentially what the speaker knew and when she knew it? I don’t know, but I’m suspicious,” Johnson said.
Ron Johnson absurdly floats that Nancy Pelosi is somehow responsible for a MAGA mob descending on the Capitol for a deadly insurrection pic.twitter.com/hUi6SydEe1
— Aaron Rupar (@atrupar) February 7, 2021
Other senators also attempted to question the legitimacy of the trial. Sen. Bill Cassidy (R-LA) said that the House vote on impeachment was all for show — and resembled the legal process in an authoritarian state.
“There was no process. It’s almost like, if it happened in the Soviet Union, you would have called it a show trial,” Cassidy said on NBC’s Meet the Press. “The president wasn’t there, he wasn’t allowed counsel, they didn’t amass evidence, in five hours they kind of judged and boom, he’s impeached,” he said.
The House impeachment process, in fact, does not involve a trial; the Senate trial following impeachment does. Trump was invited to testify at his Senate trial, but declined.
Cassidy: “The House did an incredibly poor job of building a case before their impeachment vote.” pic.twitter.com/5Pzlrq3ROA
— Meet the Press (@MeetThePress) February 7, 2021
Sen. Lindsey Graham (R-SC) argued on CBS’ Face the Nation that the trial was an “unconstitutional exercise” and that “the outcome is really not in doubt.”
He suggested that attempts to sanction Trump’s behavior should instead be dealt with through the conventional legal system. “If you believe he committed a crime, he can be prosecuted like any other citizen; impeachment is a political process,” Graham said.
— Face The Nation (@FaceTheNation) February 7, 2021
Graham is correct in asserting that the outcome of the trial is in little doubt; 17 Republicans would have to join every member of the Democratic caucus for a conviction to be successful, as a conviction requires two-thirds of the Senate. As was evident Sunday, there appears to be little appetite for such a vote among the GOP.
Impeachment, however, is about the prosecution of crimes — specifically, “high crimes and misdemeanors,” according to the Constitution, and Trump’s impeachment trial does not appear to be an “unconstitutional exercise,” as Graham suggested.
There are historical examples of officials being tried after leaving office
Many Republicans have argued that the Senate trial lacks constitutional legitimacy because Trump has already left office. But scholars and Democratic lawmakers have pointed out that the US Constitution is silent on the issue, and point to previous examples of federal officials, such as judges, being tried even after leaving office.
According to the Wall Street Journal, a report from the Congressional Research Service — Congress’s internal research organization — found that “while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried.”
The CRS report cited the example of Secretary of War William Belknap, who was impeached by the House and tried in the Senate in 1876, though he had already resigned after evidence emerged that he had acted corruptly.
Laurence Tribe, a legal scholar at Harvard Law School, wrote in the Washington Post in January that “the clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump’s presidency would not end his Senate trial.”
Tribe wrote that the Constitution’s references to impeachment do not limit impeachment power based on whether an official is holding office. “Nothing in the Constitution suggests that a president who has shown himself to be a deadly threat to our survival as a constitutional republic should be able to run out the clock on our ability to condemn his conduct and to ensure that it can never recur,” he wrote.
That isn’t to say there is a consensus on this view. Former federal appeals court judge J. Michael Luttig has argued that the Senate trial would be unconstitutional, and says that he believes only the Supreme Court can make a definitive judgment on the matter.
There is still a lot that’s uncertain about the trial
A open question is whether any GOP senator will vote to convict Trump, particularly given that not all Republican senators have attempted to undermine the legitimacy of the Senate trial.
Sen. Pat Toomey of Pennsylvania — one of the five Republican senators who voted against Paul’s motion — said he believes the process is constitutional on Sunday.
“I think it’s clearly constitutional to conduct a Senate trial with respect to an impeachment. In this case the impeachment occurred prior to the president leaving office,” Toomey said on CNN’s State of the Union. “I still think the best outcome would have been for the president to resign. Obviously he chose not to do that.”
“I’m going to listen to the arguments on both sides and make the decision that I think is right,” he added.
“I think it’s clearly constitutional to conduct a Senate trial with respect to an impeachment,” Republican Sen. Pat Toomey says on fmr. Pres. Trump’s upcoming trial.
— State of the Union (@CNNSotu) February 7, 2021
While there is some question about possible Republican conviction votes, Democrats appear far more united on the issue. Sen. Chris Murphy (D-CT) encapsulated Democrats’ argument Sunday, defending the trial as something that’s not only allowed by the Constitution — but demanded by it.
“There is clear precedent for the Senate moving forward on impeachment trial once being sent articles, even after an official has left office, and so my analysis here sort of begins and ends with what is my constitutional responsibility,” he said on Fox News Sunday.
“Impeachment comes not only with the provision to remove an official from office, but to disqualify them from future office,” Murphy said.
Murphy also noted that there remain some big questions about how the trial will be conducted — including if witnesses will be brought in. He argued that since the riot was public, it wasn’t as necessary to call witnesses as it was during Trump’s first Senate impeachment trial, but that “if the House [impeachment] managers want to call witnesses, I think we should allow them to do so.”
One broad point of agreement between the two parties is that both Democrats and Republicans want the trial — which begins Tuesday — to be quick. Republicans will favor a short trial as a damage control measure to reduce public discussion of Trump’s behavior. Democrats, on the other hand, have an ambitious legislative agenda and appointee confirmation schedule, and can’t afford to have senators wrapped up in impeachment matters for too long without slowing those down.
Author: Zeeshan Aleem