No one will be busy in Washington DC on January 20, right? No social events on the calendar? According to a new memo from Mitch McConnell and given to the Washington Post, any impeachment trial of Donald Trump would begin at the earliest on that day, no sooner than 1 pm ET — an hour after Trump won’t need to be removed from office anyway.
The Senate can’t do any substantive business until January 19th by rule, the memo explains, and it would take unanimous consent to change that rule:
Although the Senate will hold two pro forma sessions next week, on Jan. 12 and Jan. 15, it is barred from conducting any kind of business during those days — including “beginning to act on received articles of impeachment from the House” — without agreement from all 100 senators. With a cadre of Trump-allied senators in the Republican conference, that unanimous consent is highly unlikely.
“Again, it would require the consent of all 100 Senators to conduct any business of any kind during the scheduled pro forma sessions prior to January 19, and therefore the consent of all 100 Senators to begin acting on any articles of impeachment during those sessions,” the memo from McConnell emphasized.
In effect, that makes the matter of an impeachment trial an issue that will need to be taken up by Sen. Charles E. Schumer (D-N.Y.), the incoming majority leader, in the first days of the Biden presidency — a move that would almost certainly distract from the president-elect’s immediate agenda to battle the coronavirus pandemic and ensure that his Cabinet nominees get confirmed.
Of course, all this assumes that the House will impeach Trump in the first place. They can do business before January 19th, and at least one article of impeachment will come to the floor on Monday for incitement to insurrection. Nancy Pelosi would need to get a simple majority for that if she moves through regular order, but might need two-thirds if she bypasses regular order to speed things up. It’s almost impossible that Pelosi would get two-thirds in a House that had two-thirds of Republicans voting to uphold the pointless elector challenges. But going through regular order might mean that Pelosi wouldn’t get it done by the 15th either. The question of unanimous consent in the Senate might never even come up.
If not, or if a Senate Republican objects to conducting business before the 19th (and you can bet that Tommy Tuberville or Josh Hawley would), then this is what the schedule would look like, according to McConnell:
●On Jan. 19, the Senate would receive a message from the House that it has appointed impeachment managers, and that the Senate would be ready to receive it.
●On Jan. 19 or 20, the House impeachment managers would exhibit the articles.
●On Jan. 20 or 21, the Senate would proceed to consideration of the impeachment articles at 1 p.m., and officially begin the trial. McConnell’s memo noted that the “Senate trial would therefore begin after President Trump’s term has expired — either one hour after its expiration on January 20, or twenty-five hours after its expiration on January 21.”
That might seem rather pointless, as Trump won’t be in the office at that point to be removed from it. However, an impeachment affords Congress the opportunity to bar Trump from any federal office in the future (as it does for impeachments of other federal officials), and that might be enough to pursue impeachment, especially for Democrats.
That does raise another question, though: can Congress impeach a private citizen who is no longer in federal office? The answer is — no one really knows. A year ago there was some significant debate over that point, but the only real consensus is that there is no consensus, and even more to the point, no certainty even among those who have an opinion. The Constitution provides Congress the authority to impeach presidents and vice presidents, judges, and “all civil officers” in Article II Section 4, an explicit list which would seem to preclude anyone who isn’t currently in one of those categories. Arguably, any such effort against a private citizen could conceivably be considered an act of attainder, which is explicitly prohibited by Article I, Sections 9 and 10. Under that theory, any prosecutorial action would have to take place in civil courts and not Congress. But until Congress tries it and the result gets challenged in court, it remains a mystery … sort of like presidential self-pardons.
Let’s say for the sake of argument Congress decides it can retroactively impeach a former civil officer. Why do it? If it can’t be done to get Trump out of office before he arguably does something crazy or destructive in the Wagnerian Wotan-burning-down-Valhalla sense, then there’s no point except to bar him from future office. And if that’s the only purpose, that not only changes the politics of the situation, but also means it doesn’t need to take place now anyway. Why not wait until March or April, or the summer? There’s no rush at all, as long as it gets done before the 2024 primary cycle begins in, er … July of this year. I kid, I kid …
If all this sounds like it’s more trouble than it’s worth, that’s because it is. The only legitimate purpose for removing Trump at this point is to ensure he can’t do anything crazy over the next twelve days. If Congress can’t get to it before Day 12, then it’s an empty tactic, one that could stoke an even bigger reaction just as Joe Biden is taking the oath of office. Better to just remind him that prosecutorial options remain open for any abuses that Trump might commit over the next fortnight, and then pay Pat Cipollone a bonus for two weeks of combat duty.