As we have now embarked on a completely unprecedented second impeachment of President Trump there seems to be a lot of questions and confusion. I thought I might try to answer some of the questions and try to get past the politics and see how it actually works. Finally, I will try to give a few historical examples to help decide if impeachment is a good idea.
First to answer a couple of questions. Yes, clearly Trump can be impeached a second time. Realistically he could be impeached for the same crime as before. This is not a legal trial and double jeopardy or any of the other amendment does not apply. Secondly, impeachment does not automatically mean he cannot run again in 2024. To understand this, let’s look at the Constitution.
Article 1, section 2 states, “The House of Representatives…shall have sole power of impeachment.” As we learned a year ago impeachment is a two-part process. The House brings up charges of impeachment with a majority vote, but that does not remove a president. Article 1, Section 3 states: “The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” It is the Senate that tries the president and there must be 2/3 vote to convict. The interesting clause is what comes next in Section 3, “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.”
What this clause states is that if a president is convicted it does not necessarily mean they cannot run for office again. Disqualification to hold office is only one of the options. Because we have never convicted a president before, what we do not know is if a president is convicted by 2/3 vote, does the sentencing phase for disqualification also need a 2/3 vote or just a simple majority? This is not clear in the Constitution and is being debated now. My guess is it will ultimately come down to a Supreme Court decision.
However, from a practical standpoint, there is a good chance we will still not know all the legal answers because impeachment may not be practical in a normal way. The House has now impeached the president. Unlike last time, they will not try to painstakingly lay out their argument knowing the Senate probably was not going to convict. The problem is that the Senate will not meet again until after Biden is the President. The only way for the Senate to come back early is for all the Senators to agree, which simply will not happen. If Trump is already removed will it be worth the Senate’s time to hold a trial to remove him.
One idea being floated about is that the House will wait until later in the year to send the points of impeachment to the Senate, after the Democrats have control. The idea is disqualifying him from running again. Again, this comes down to legal arguing over the possibility of such an action. Some scholars argue that you cannot convict a president who is no longer the president. Others claim it is legal and has precedence from past government officials. The idea is that someone impeached should not be able to resign to get out of being convicted. If this legal argument holds, what might hurt in this situation is that Trump did not resign. If it comes to this, my guess is again it will be decided by the courts. In the earlier precedence, none were ever challenged in the courts.
The reason I doubt the courts need to intervene is the chance of a conviction is still slim with the necessary 2/3 vote. The Democrats will hold the Senate by simply the V.P. vote and that is not enough to convict. In an actual court of law, it would be difficult to convict Trump for insurrection. If you read the actual transcript of his speech and not the edited version shown in the news you will understand. What Trump said in the middle of his speech was, “We’re going to walk down. Anyone you want, but I think right here, we’re going to walk down to the Capitol–And we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Getting twelve impartial jurors to convict Trump for the riot would be difficult from that speech, but as I have written many times last year, an impeachment trial is not a legal trial, with the same rules, it is a political trial. The only question is will 17 Republican senators vote against Trump. A few will, but I cannot imagine the Republican Party allows 17.
So can the Democrats make sure Trump will never be able to run for office again. Officially yes, but practically, probably not. This is political theater and Democrats flexing their muscles. The courts will have to allow the impeachment of an ex-president, enough Senators will have to join the Democrats, and the courts will have to allow a simple majority for the sentencing phase or again get enough Republicans to join in. Disqualifying Trump will be a tall task.
Then there is the second issue, should the Democrats even try to convict? If they do, and they will be holding trials during the Biden presidency that could quite possibly hurt the president. Time and time again Biden claimed he wanted to unite the nation and that that he is bigger and less spiteful than Trump. It will be difficult to demonstrate this maturity while prosecuting the ex-president who is already out of office. It will be especially difficult for Biden to work with a Senate divided 50-50 on any legislation while the Republican ex-president is on trial. Hopefully this could be like Trump’s claim to arrest Hillary Clinton, something promised but never acted on after Trump won. What could happen is the House impeaches to satisfy the Democrats, but the Senate lets it die.
Finally, to understand why prosecuting Trump may not be in Biden’s best interest we need to consider 1974. 1974 was almost as turbulent as this year. The Watergate trials had shown government corruption at the highest levels. Republican operatives had broken into the Democratic headquarters to find out their election plans. As investigators worked their way up to the president, they exposed plenty of dirty laundry that shocked the nation. There are many similarities to how Americans feel now after the Capitol invasion. Knowing that he would be impeached and probably convicted, Nixon stepped down. Nixon not only stepped down but faded into the history books. Nixon’s V.P. now president, Gerald Ford then pardoned Nixon. Many were upset with Ford, but I believe it was the greatest thing he could do to help the nation heal. A trial would have lasted months and served as a constant reminder of the worst government could do. A Trump trial would be no different. Instead of moving Trump into the background he would be front and center for months to come. For the sake of the nation, allowing him to fade away, as Nixon did, serves the public interest better than any trial.
It seems as if Trump finally crossed the line for many in his party. Sure, there are still thousands that will show up to support him, but the rank and file Republicans are not about rioting and violence. Most were disgusted and upset by the events at the Capitol. Most are ready for Trump to go away, if it means things can return to normal. However, if Trump is put on a trial, it will only remind Republicans of all the insults and mistreatments, real or perceived, over the last four years by Democrats and the media. They will see the Democrats as bullies, going after the president after he was already out of office. This is not about removing a president, that is already happening next week. What this is all about is attacking Republicans who did not support removal in the next election cycle. A Trump trial and conviction will make Trump a martyr. I personally know some Republicans who started supporting Trump only after he became president. They came to be so disgusted by his treatment that they found themselves cheering for him. Making Trump a martyr has the potential to bring him more support than if he just leaves.
When the Republicans released all the Confederate leaders after the Civil War, Jefferson Davis refused to leave. He knew he could do more for his lost cause in jail. He could be a symbol of all the suffering the South had gone through. He wanted a trial, but the North knew how dangerous a trial would be. I know the Democrats want blood; they want to punish Trump. Yet maybe if our leaders today could follow leaders who suffered through the Civil War and Watergate, they can see the wisdom in their decisions. Maybe if Biden really wants to unite the country, he can weigh in and allow Trump to fade away into the history books.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.