The Republican Party, more precisely the Trumplican Party, seems to have mostly coalesced behind opposing completion of the impeachment process by trial in the Senate.
Good example: Fund-raising letter from Arkansas Republican Party chair Jonelle Fulmer:
Even though a majority of Senate Republicans rallied this week to dismiss the impeachment trial as unconstitutional — considering he can’t be removed from office since he is no longer the president — the Dems killed the effort.
As Senator Rand Paul said, this mockery of an impeachment attempt will be “dead on arrival” in the Senate. Yet the progressive left will NOT back down!
She is slightly more honest than the boilerplate Republican argument that you can’t impeach someone who is no longer in office.
Problem: Trump WAS in office when he was impeached, or charged by the House with the high crime of inciting a riot. And there is important accountability in proceeding with the trial: A Senate vote to prevent him from holding office again.
There’s an instructive podcast on the topic featuring, Michael McConnell, a Stanford law professor who once held a judgeship by appointment by George Bush.
McConnell re justification for the article of impeachment:
Well, I think there were three basic things that President Trump has done that are serious misuses of his presidential position. The one was to try to frustrate the proper registration and the recognition of the electoral results. And here I do not refer to his challenging them in court. He had a right to do them. I think he was wrong on the merits, but lots of people in court are wrong on the merits. Usually half of them in every case. But once decisions had been made, to try to pressure election officials like the secretary of state of Georgia or the legislators in Wisconsin, to disregard the vote after the proper — after all the channels for proper challenge or were completed , was wrong.
And then secondly, to egg on a crowd, whether it’s technically incitement or not, he encouraged the crowd to march on the Capitol, under circumstances where it was reasonably foreseeable that violence was going to break out . And that may not be technically incitement, but it is still deeply wrong for the president to do that.
And third, he has a take care clause, responsibility to protect the law. For him to sit back for several hours when this is taking place and not even make a clear call for his supporters to back down when his own supporters are calling to hang Mike Pence, right? Members of Congress are phoning into his aides saying that they were in fear for their lives, and he doesn’t even use his influence with the crowd to get them to back down … it’s just an unbelievable dereliction.
And evidence grows of coordination by Trump allies for the rally that turned into a deadly insurrection.
McConnell also is quoted on a conservative lawyer’s blog about the constitutionality of a trial for someone who has leftoffice.
Much of the discussion of the constitutionality of trying Former President Trump on impeachment charges after he has left office consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed. Not enough attention has been paid to the constitutional text, or the timing of this particular impeachment.
Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible (putting aside any disagreements over the nature of the charges).
Article I, Section 3, Clause 6, states: “The Senate shall have the sole Power to try all Impeachments.” The key word is “all.” This clause contains no reservation or limitation. It does not say “the Senate has power to try impeachments against sitting officers.” Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.
Article II, Section 4, states: “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.” This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.
Article I, Section 3, Clause 7, states: “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, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law.” Read together with Article II, Section 4, this means that the consequence of conviction on impeachment must include removal from office, may include disqualification from future office, and may not include any other sanction. The first sanction is limited to sitting officers, which makes sense. The second sanction is not so limited.
As for Jonelle Fulmer’s argument on constitutionality, McConnell continues:
I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore the fact that he was properly impeached (at least, insofar as timing is the issue), and they ignore the text of Article I, Section 3, Clause 6, which states that the Senate may try “all” impeachments. They conjure up a limitation on the Senate’s power by a misconstruction of the sanctions limitation of Article I, Section 3, Clause 7. And, of course, they bolster their argument with motivated reasoning about consequences for the republic, which are no more persuasive than the motivated arguments coming from the other side.
I suppose that if there were powerful historical evidence that this was not the understanding of the founders, we might have a debate between text and historical understanding. But the historical evidence supports the text. The two British impeachment trials prior to the Constitution both involved former officers, and the first impeachment trial under the new Constitution involved a former Senator.
Meanwhile, the Trump drama continues. He parted ways yesterday with his latest team of lawyers. The reporting indicates his legal team, highly recommended by Sen. Lindsey Graham, thought it ill-advised for Trump to mount a defense built on his baseless notion that the election was stolen from him. That seems to justify the Capitol riot.
Harvard law prof Lawrence Tribe comments:
Fingers crossed that Trump will persist in this defense theory. It’s the best hope for convincing 67 Senators to convict and disqualify him forever. https://t.co/HeD3QkLKoU
— Laurence Tribe (@tribelaw) January 31, 2021
And speaking of impeachment and Arkansas Republicans, a week has passed without a response from Governor Hutchinson to a question I posed to him that I haven’t seen asked or answered. His lack of response indicates he intends to remain mute on this point.
You prosecuted Bill Clinton for impeachment because he was not truthful under oath about his relationship with Monica Lewinsky. You said the conduct was so grave he must be removed from office. Your brother [then-U.S. Sen. Tim Hutchinson] was on the jury.How do you justify sayin g Donald Trump should not be impeached or convicted and thus prevented from holding office again? Was Clinton’s dishonesty about sex a graver offense than spreading misinformation about election fraud; attempting to use the Justice Department to prevent Biden’s election; arranging a rally of supporters on the Electoral College vote day; encouraging people to march to the Capitol, and resisting calls for National Guard reinforcement or sending a message to stop the riot?