In my opinion, the most frightening aspect of the Trump presidency is not his corruption or blatant disregard for the Constitution. It is that over 74 million Americans voted to keep him in office. Those who voted for him did not care about his abuses of power, nor did the members of Congress who supported the overturning of the election. Even after the assault on the U.S. Capitol, eight Senate Republicans and 138 Republican House members still voted to overturn a free and fair presidential election. It is just the latest example of a party that is far to the right of most conservative parties in the democratic world.
In the days since the terrorist attack on the U.S. Capitol last week, Republicans have shrugged off the idea of removing Trump from office in the final days of his presidency. Few of them are outright defending Trump’s conduct, but many of them have suggested it would only add fuel to the fire and further divide America. The other main argument is that it’s unnecessary — that Trump will have learned his lesson from what happened and quietly go away. Many of the most wishy-washy Republicans are claiming that Trump has learned his lesson, this time. If that sounds familiar, it’s because it is what plenty of Republicans who voted against removing Trump said about a year ago, assuring the impeachment process had sufficiently chastened Trump. If they really believe Trump has “learned his lesson” then I have some oceanfront property in Arizona that I’d like to sell them, because their stupidity/gullibility knows no bounds. Trump has never shown any signs of remorse for anything he has done, and he’s not showing remorse now, nor will he.
The ideology of Trumpism is a vicious beast. We now have to come to terms with the reality that this beast will ravage American society long after January 20, 2021. The incoming Biden administration will have to confront millions of enraged Trumpists among the 74 million-plus who voted for Trump. Their dark cloud of conspiracy, their refusal to reason with truth, and their rejection of a legitimately elected President will threaten to suffocate the new administration. We have a long road ahead of us to heal this country. Trump undoubtedly needs to be removed from office as soon as possible. However, the Senate is unlikely to remove Trump through impeachment before his term ends, and Vice President Pence is unlikely to invoke the Twenty-Fifth Amendment if Trump does not commit more outrageous acts. If inciting an insurrectionist terrorist attack was not outrageous enough, would anything ever be too much for Republicans to excuse?
If the House does impeach Trump this week, which could happen today, it will still have almost no effect on how long he remains in office. His term expires seven days from now, and even the most rapid conceivable Senate trial would cover much of that time. But any impeachment debate is still highly consequential. The Senate has the power both to remove Trump from office and to prevent him from holding office in the future. Article I, Section 3 of the Constitution says: “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.” Many constitutional scholars believe that the ability to bar him from holding further office will not expire when his term ends. Therefore, a Senate trial could happen after January 20. Then comes the questions of who should preside over the trial. The Constitution states, “When the President of the United States is tried, the Chief Justice shall preside,” but Trump would no longer be president, so most scholars believe that Vice President-elect Kamala Harris would preside over the trial and not Chief Justice John Roberts.
Whereas the Constitution does not specify whether disqualification requires a two-thirds Senate vote, a conviction in an impeachment trial does. Still, the Constitution does not specify if only a majority vote would be needed to bar someone from holding further office, so we could see this disputed in court. The Senate has previously used a majority vote. To be clear, such a simple majority vote can only take place after the Senate has already voted to convict an impeached official. The Senate has barred three people, all federal judges, from holding future office: West Humphreys (in 1862, for waging war against the U.S.), Robert Archbald (in 1913, for corruption), and Thomas Porteous (in 2010, for bribery and perjury). Two of the three times still had a two-thirds majority vote. Two-thirds of the Senate must first agree to convict a federal official in an impeachment trial before the Senate can disqualify that official — a simple majority cannot, acting on its own, disqualify an official from holding future office. Democrats would still need to convince at least 17 Republicans to convict Trump.
There is precedent for a trial to be held after someone has left office. The Senate tried a former War Department secretary — William Belknap, in 1876 — after he resigned, which is not the same as leaving office at the end of his term. The majority of the House and Senate decided that Belknap could be tried after he had left office. Starting on April 5, 1876, Belknap was tried by the Senate. For several weeks Senators argued over whether the Senate had jurisdiction to put Belknap on trial since he had already resigned office in March. Belknap’s defense managers argued that the Senate had no jurisdiction; the Senate ruled by a vote of 37–29 that it did. Belknap was charged with five articles of impeachment, and the Senate listened to over forty witnesses. With forty votes needed for conviction, the Senate voted 35 to 25 to convict Belknap, with one Senator not voting, thus acquitting Belknap of all charges by failing to reach the required two-thirds majority. All Senators agreed that Belknap took the money, kickbacks, from Caleb P. Marsh, who was central to the trader post-scandal (Marsh had the written receipts for the payments), but the twenty-three Senators who voted for acquittal believed that the Senate did not have jurisdiction to try Belknap after he had resigned. *
I think it is doubtful that Trump will be convicted in the Senate, though news broke yesterday afternoon that Mitch McConnell favors impeachment as a way to kick Trump out of the Republican Party. If McConnell publicly backs impeachment, then other Senate Republicans could follow suit. If Trump does something even more heinous in the next week or after he leaves office, then it may also make it easier to secure an impeachment conviction. I suspect, no matter what happens, there will be long court battles over the results. Disqualifying a president from future office would probably come before the Supreme Court because of the stakes and lack of precedent. History suggests that the court would be more likely to uphold a bipartisan congressional vote than a largely partisan one. If an impeachment begins while Trump is still in office, the process should be able to continue after they have left office, but I have no doubt this will be a nasty, drawn-out fight. The other question is when the Senate would allow for the trial of Trump. If a trial is held as soon as Schumer assumes the position of Majority Leader, which will be no earlier than January 20 after Kamala Harris is sworn in as Vice President and likely to be after January 22, when Georgia officials are required to certify their Senate runoff elections.
If the trial is held in the Senate at the earlier possible moment, then it could draw attention away from Biden’s first hundred days in office. Biden said Monday his “hope and expectation” is that the Senate would split days between the trial and other business. In addition to passing another stimulus bill, Biden will have a full slate of Cabinet nominees that will need Senate confirmation hearings, which could be difficult to hold when all senators are required to attend an impeachment trial. If the House chooses to wait to send the Articles of Impeachment, then the momentum may be lost. House Majority Whip James Clyburn said figuring out the best way to balance impeachment with the beginning of Biden’s term will ultimately fall to House Speaker Nancy Pelosi, but said he would suggest, “Let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we will send the articles sometime after that.”
Even if the Senate does not convict Donald Trump for “incitement of insurrection,” there is another avenue to bar Trump from holding office again. Section Three of the Fourteenth Amendment states:
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 rebellionagainst 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.
Anyone complicit in inciting the riot bent on stopping the electoral vote counting process, including the members of Congress who encouraged it with their lies and dangerous rhetoric, could reasonably be considered to have violated the above section of the Fourteenth Amendment. The provisions of the amendment could also be applied against Trump, should he seek office in the future, to exclude him from the ballot. If a state decided Trump had violated the Fourteenth Amendment, he might have to sue to get on the ballot. Trump could also be barred from seeking office again by a simple majority vote of both houses, in contrast to the requirement in impeachment proceedings that the Senate vote to convict by a two-thirds majority. Congress would simply need to declare that Trump engaged in an act of “insurrection or rebellion” by encouraging the attack on the Capitol. Furthermore, when the amendment was first passed, Congress passed a law, which is still on the books, to give the Department of Justice power to remove ineligible people from office. If it is declared that Trump violated the provisions of the Fourteenth Amendment, he would be barred from holding office again without “a vote of two-thirds of each House, [to] remove such disability.” There are numerous avenues for using Section Three of the Fourteenth Amendment to bar Trump and his supporters in Congress from holding office in the future. Using the Fourteenth Amendment is needed to demonstrating to all Americans that their representatives in Washington take the Constitution seriously.
Time will tell what will happen next, but one thing is for sure, Trump, his congressional supporters, the members of his administration, and the terrorists who attacked the Capitol must pay for what they have done. If that occurs using the Fourteenth Amendment, then I’m okay with those complacent in inciting the insurrection being barred from future office. All of those who tried to circumvent the Constitution and invalidate a free and fair election must not be allowed to get away with it. All those who stormed the Capitol, must be tried, convicted, and imprisoned for their crimes. Even if the Twenty-fifth Amendment is invoked, an impeachment trial is held after Trump leaves office, or the Fourteenth Amendment is used to bar Trump from further office, the United States government must make it clear that incitement of an insurrection by federal elected officials is a line that must never be crossed again.
* This is a short summary of Belknap’s impeachment because the corruption and the subsequent impeachment and trial are complicated. I have a feeling, though, that we may all know the story when Trump’s impeachment reaches the Senate, as pundits will likely go into great detail about the events surrounding the only impeachment trial to take place after the person left office.