Well, maybe not explicitly instead of, although it’s hard to see the value in this proposal to Republicans otherwise. Rand Paul’s collection of 45 votes to sustain a point of order rejecting the Senate’s authority to conduct an impeachment trial against a former president may have had more impact than first thought. Axios reports that bipartisan pair of senators has begun talking up censure as a way out of the dead end the Senate is rapidly approaching:
Sens. Tim Kaine and Susan Collins are privately pitching their colleagues on a bipartisan resolution censuring former President Trump, three sources familiar with the discussions tell Axios.
Why it matters: Senators are looking for a way to condemn Trump on the record as it becomes increasingly unlikely Democrats will obtain the 17 Republican votes needed to gain a conviction in his second impeachment.
What we’re hearing: Some Democrats are interested only if at least 10 GOP senators publicly commit to a censure, thus ensuring the 60-vote margin needed to pass major legislation in the chamber.
I’d bet that won’t be too much of a problem. If you give 50 Senate Republicans an opportunity to condemn Trump rhetorically rather than apply any kind of substantive legal penalty for his actions before, during, and after the January 6th sacking of the Capitol, I’d bet Kaine and Collins could get … fifteen, maybe? Mitch McConnell might be willing to come along on that just to avoid the trial, and you can bet that anyone else who voted for censure will argue to Trump fans that that’s what they intended, too.
There are still a couple of twists, however. “It’s still unclear whether a resolution would be in lieu of or come after a trial,” Axios notes, which makes zero sense at all. Why would Senate Republicans vote to acquit and then turn around and censure? The GOP caucus would insist that Democrats chose the trial as the Senate’s action and that the matter is now closed. I’d doubt Kaine and Collins could even get the five Republicans who voted against Paul’s point of order to come along on a post-trial censure as some sort of consolation prize for Chuck Schumer.
Censure wouldn’t be the end of machinations either. Kaine still wants to pursue a disqualification bill based on the 14th Amendment bar on office for anyone who took part in an insurrection or sedition, The Hill notes, and that opens up another can of worms:
Kaine is also among a group of Democrats floating trying to bar Trump from future office through the 14th Amendment. That, like a censure resolution, could pass the Senate with only 60 votes compared with impeachment’s two-thirds requirement. That means that if every Democrat voted for a censure resolution, they would need the support of at least 10 Senate Republicans.
This is even more problematic than a Senate trial. In order to invoke a 14th Amendment bar on office, seditionists would have to be found guilty of that crime — but in court, not in Congress, which has no authority to try anything other than impeachments. Attempting to use this mechanism against a private citizen would explicitly be a constitutionally prohibited bill of attainder. The only authority granted to Congress in the 14th Amendment is the power to waive that restriction:
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.
An impeachment trial for a president impeached while in office but whose term ended shortly afterward might be an innovation forced by circumstance, but arguably within the Senate’s authority. However, the Constitution’s explicit bar on bills of attainder flat-out rejects this kind of maneuver by the Senate. It’s precisely why the founders wrote the provision, after watching Parliament attaint people of treason without any sort of judicial process involved. An attempt to pass such a bill would be every inch the kind of abuse of power and institutional degradation that Democrats accuse Trump of committing.
The only way the Kaine-Collins censure proposal works is if it replaces all of the above. It’s a way out for both Republicans and Democrats, a way to find at least enough unity to close out the Trump years.