Impeachment Update

Update: It was decided that Leahy will preside over the impeachment trial. I'm disappointed though think the matter is constitutionally acceptable given the language. The language to me is best applied to have the Chief Justice preside, but it can be read to mean only sitting presidents require that.  The matter at least in dispute, the Senate gets to choose pursuant to its power to "try" impeachments, includes rules of proceedings. 

NPR reports: "This time, however, the chief justice let it be known he did not want to preside now that Trump is no longer president. On Monday, a Supreme Court spokeswoman said Roberts would have no comment." Yeah. That doesn't do it. It should be aboveboard in a letter or whatever.

The impeachment article will be carried over to the Senate on Monday and then the actual trial will come in two weeks time to give the Senate more time to business.

I think that works fine, including as more evidence comes out. Realistically and on principle, you need to give the Trump side a bit of time to prepare. Not that they haven't already but a bit of care there is helpful (the professor I cited on the 14th Amendment insurrection provision continues to suggest impeachment doesn't really have "due process" as compared to alternatives and that is stupid; but you have to do something to deal with stupidity).

Plus, people are concerned about the Senate doing some business first, especially since when controlled by Republicans [Mitch playing hardball means committees technically still are since a new organizing resolution hasn't been decided upon] they -- unlike past years -- didn't get around to even having hearings for Cabinet heads. So, really, it is only a week or so more than it might have been if we sped things along more. As is, the later in February McConnell offer was rejected. And, the Dems are not giving into the "keep the filibuster for two more years" demand. 

[I think the Senate has the power to change its rules in the middle of things anyways. I also think the filibuster in principle on some level does further a sensible path. Raw majority rule is not some universal; some sort of consensus is useful on things a minority feel specially sensitive about. But, there is a limit.]

My dream was to just convict Trump before he left office, but that was not to be. The talk now is that there will be at best a handful of Republicans convicted, after we had noises that even Graveyard Mitch (back to his ways) was open to the idea. Uh huh. The usual "moderate" Republicans are also negative on the big COVID relief bill. If they are going to make it so easy, okay, the filibuster is a 'no.' Ezra Klein is right that if the Democrats let Republicans block an ability to fully take advantage of their majority that the people will burn them.

Some rather use the insurrection provision. To remind:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

I continue to think the impeachment approach makes sense, particularly because it is more familiar to the general public and history. There is clearly overlap given the action impeachment count, but it isn't the same thing. If one is concerned about "due process," the impeachment trial will provide some of that too. It will do more to put forth the evidence to the world and requires a supermajority as compared to the apparent mere majority required for the 14A remedy. There is a fear the supermajority won't be reached, but that is important too. It is not that Republican senators will say Trump is innocent. The trial in fact will force some to underline they don't think so. And, to the degree they refuse to formally convict in the highest constitutional way our represenatives have to do that, it will be a black mark.

The remedy there is akin to the "penalty phase" of impeachment. That too has notable differences, though both are by majority vote. Not only is there no "backsie" mechanism, but it has the benefit of removing the "enjoyments" (at times the exact wording of provisions we usually don't pay attention to comes into focus) of the office as a possible penalty. Putting aside the issue of Secret Service protections, which is of special character, these sorts of things are particularly useful to take away for such a cupidinous [no, it's a word] person.*

Such a 14th Amendment disqualification provides accountability, in both form and substance. It would formally condemn Trump for aiding enemies of the Constitution, as he did in trying to overthrow a lawful election and then inciting the insurrection. The finding would disqualify him from public office.

Yes, you are correct, but it still is not the same thing. Also, it is not like there is some sort of "double jeopardy" problem of doing it later. The Congress should broadly address this problem. ALL people involved who have been found to "have engaged" should be disqualified. Down the road, perhaps a ten year or some period can be cited, they can petition perhaps to be relieved. The details here can be crafted (perhaps for some it would require a conviction while others a lesser finding, such as past members of the military or sitting legislators who can be found to be by legislative judgments). A mere majority (perhaps joined by a few Republicans if not 17) of the Senate can include Trump in the mix here, in that case via the judgment of the House etc. Impeachment is a special different sort of thing.

Anyway, the die is cast there. As more evidence comes out, the guilt of Trump is apparent, including the clear justice (not just in anger, as a matter of justice and sound political judgment) of barring him from office and removing any means he still has to "enjoy" (a major motivator for public figures and something that very well should factor in the mix) such an office, a governmental office not stopping really when one leaves.

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* The idea that a trial should not occur after one leaves office -- a nice way to get around the disqualification -- has been suitably rejected, at times in proper scornful fashion.  

Another issue that has arisen is that Trump cannot be stripped of various benefits, since the law in question only provides an exception for those who are removed by impeachment. He wasn't!

The problem here is that the exception is really merely one statutory approach.  The Constitution itself provides a remedy, which is not automatic (removal is) upon conviction, which includes not only "holding" (you're fired!)  but also "enjoying" an office.  Now, this is word parsing that very well might require further study, but facially, that seems to fit just this situation.  Part of the benefits of office are a form of retirement benefits.  

There is also the issue of whom would preside at the trial. I think the trial is of the acts of a certain office, so the Chief Justice rule still applies.  Yes, the biggest concern about the potential next in line presiding is not present [though the limited power of the role makes that somewhat overblown in a way].  But, the importance of the position and potential for partisan bias remains. It would be somewhat dubious there (if maybe appreciated by Republicans to taint it) to have the VP or even the Senate pro tempore (less troubling) presiding. 

So, reasonable application with good policy arguments.