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GOP Senators Bogus Arguments Against Trying and Convicting Trump – The Bulwark

Jan 30th, 2021

The vote by 45 Senate Republicans on Tuesday to dodge the question of whether spending two months whipping your followers into a frenzy by telling outrageous lies attacking the foundation of our democracy and then turning them loose on the U.S. Capitol to shut down the electoral vote count amounts to an impeachable offense was not their finest moment. Whether it was their worst depends on how they vote when the trial concludes.

Few of the current crop of Senate Republicans are known for their courage, but this was a particularly embarrassing display. Rather than address the weight of the historical, prudential, and legal arguments on impeaching a former officeholder, they chose to tell themselves constitutional just-so stories that got them to a predeterminedand immensely convenientconclusion. In fact, impeaching the now ex-president is almost certainly constitutional and its shameful that only five Republican senators had the courage to say so.

First, theres the weight of historical precedent. In 1876 the Senate faced a similar questionit was actually a tougher case than the present impeachmentand concluded that Congress had the authority to impeach officials after they had left office.

Second, there is the prudential argument. Does anyone think it likely that the Founders intended to specifically exempt lame duck presidents from impeachment? Does it make any sense at all to allow Congress to bar sitting presidents from future office based on horrific acts in the first month of their terms but not for acts committed in the last month?

I dont think there is any question that that is not what the Founders intended. Nor is there any question that it is an extraordinarily bad idea. If you put that interpretation of the impeachment power together with the idea of a presidential self-pardonand there is a much better constitutional case for that than there is for not impeaching ex-presidentsyou turn the Constitution into a demagogues charter. Lose the election? No problem! Call out those mobs and give it your best shot. Its all good!

Finally, there is the legal argument. Republicans claim, as Rand Paul did on the Senate floor and in an opinion article on Tuesday, that it isnt constitutional to impeach someone once he or she is out of office. Though the weight of precedent and logic say otherwise, fine, lets assume thats correct. Happily, thats not what happened. Donald Trump was still very much in office when he was impeachedwhich is a formal vote by the House to adopt articles of impeachmentso there is no question that proceeding with the impeachment trial itself is perfectly constitutional.

Analytically, there are two separate concepts at play here, jurisdiction and mootness. In the 1876 case, Secretary of War William Belknap hurriedly resigned before his impeachment could be voted on in the House. When the Senate received the articles of impeachment, it took its own vote on whether it had jurisdiction to proceed with the trial and concluded that it did. Unfortunately for Belknapand current Senate RepublicansYou cant fire me. I quit! isnt actually a legal doctrine.

The current case isnt even that close. The House impeached the now ex-president a week before he left office. If you want to analogize it to a court proceeding, there is no question that this case was brought before the statute of limitations expired. Once the courtsin this case, the Senatesjurisdiction has attached, jurisdiction doesnt expire no matter how long it takes to complete the trial.

Mootness is a different concept. When a court with proper jurisdiction can no longer offer a meaningful remedy, a case can be dismissed as moot. When Republicans say that the Senate doesnt have the constitutional authority to hold an impeachment trial once a president has left office, what they are actually arguing is that the case is moot because an ex-president cant be removed from office on conviction.

But again, thats simply wrong. The Constitution provides two possible penalties for conviction in an impeachment trial: removal from office and being barred from future office. If an ex-president can be barred from holding future public office on conviction, there is still a reason to hold the trial and the proceeding is, by definition, not moot.

In a sense, this is now water under the bridge since the Senate has voted 55-45 that it does have jurisdiction to try this impeachment. If the senators honor their oath, they will now move on and consider whether Trumps efforts to overturn the results of an American election, efforts that ended in mob violence, are acceptable presidential behavior or whether they amount to an impeachable offense.

Unfortunately, a lot of Republican senators arent going to do that. They will vote not to convict and claim that they are doing it only because they dont believe the trial is constitutional. That isnt, of course, relevant to the question they are duty-bound to consider and its as gross a violation of their oath as refusing to convict because Chuck Schumer wont promise to protect the filibuster.

Its also a serious violation of the separation of powers. The Senate, as a body, has ruled that it has jurisdiction. If the Senate is wrong, thats up to the judicial branch to decide, not individual senators. And the way that happens is for a convicted ex-president to challenge the Senates verdict in court. Thats the way our system is designed to work.

There is no fig leaf for Republicans here. They cannot hide behind pretend concerns about constitutional rectitude. The trial moves on now and if they vote to acquit, its either because they find Trumps behavior acceptable or because they are terrified of his supporters and will do anything to please them. Pretending otherwise isnt going to fool anyonenot the American people, not Donald Trump, and, most certainly, not history.

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GOP Senators Bogus Arguments Against Trying and Convicting Trump - The Bulwark

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