What was Tim Kaine’s first clue? Give him and Susan Collins credit for at least exploring the possibilities for a compromise position that would change the obvious eventual outcome of a new Senate impeachment trial. Compromise only works, however, when two sides have some common ground on which they can agree.
In this case, as Kaine and Collins have discovered, no such common ground exists. Most Senate Republicans refuse to concede any grounds on jurisdiction over Donald Trump now that he has left office. And almost every Senate Democrat wants to hold a trial rather than settle for any other type of rebuke, even if a trial is as futile this time as it was a year ago:
Kaine added: “I don't have enough support on the Democratic side because for most of my colleagues, it's impeachment or nothing.”
— Manu Raju (@mkraju) February 2, 2021
On one side, it’s impeachment, and on the other side it’s nothing. Kaine either misunderstands or misrepresents the sentiment on the GOP side, though. This doesn’t have as much to do with the bar on federal office (and disqualification from elective federal office might not be within the Senate’s reach, although that’s arguable) as it does with their own access to their current offices. They don’t want to split the party by forcing a vote on Trump, especially since it will only prolong Trump’s hold on the party. In that sense, a vote on censure is almost as bad as a vote on impeachment — it will alienate GOP voters no matter which way each senator chooses.
That’s why Democrats don’t want a compromise on this, either. Andy McCarthy wisely noted last week that the impeachment trial is a win-win trap for Democrats. They get to force Republicans into taking that vote on conviction, at least, even if they never get to the question of disqualification. It exacerbates an already developing split within the GOP, and it keeps Trump elevated as a potent symbol of party leadership. They got massive turnout for the presidential election with that strategy (a sort of reverse of the Pelosi strategy employed by the GOP for the last several election cycles), and this extends Trump’s intrusion into the psyche of the electorate.
It doesn’t matter all that much to Chuck Schumer et al that the end result will be Trump’s acquittal. They want to force Republicans to either actively defend Trump or actively oppose Trump. Either suits their purpose. In a way, this highlights the lack of consensus around this question that the Constitution envisions for the impeachment-removal process; it’s being used instead as a partisan cudgel, which is what Kaine and Collins had hoped to prevent.
Thus, the trial will continue and Senate Democrats will get their pound of flesh in whatever form they can get. House Democrats filed their pretrial brief today alleging that Trump was “singularly responsible” for the January 6th Capitol riot, a position that, while unsurprising as a trial brief, is at least inconsistent with their position about their GOP colleagues in Congress:
Donald Trump endangered the lives of all members of Congress when he aimed a mob of supporters “like a loaded cannon” at the U.S. Capitol, House Democrats said Tuesday in making their most detailed case yet for why the former president should be convicted and permanently barred from office.
The legal brief forcefully links Trump’s baseless efforts to overturn the results of the presidential election to the deadly Jan. 6 riot at the Capitol, saying he bears “unmistakable” blame for actions that directly threatened the underpinnings of American democracy. It argues that he must be found guilty when his impeachment trial opens before the Senate next week on a charge of inciting the siege.
“His conduct endangered the life of every single Member of Congress, jeopardized the peaceful transition of power and line of succession, and compromised our national security,” the Democratic managers of the impeachment case wrote. “This is precisely the sort of constitutional offense that warrants disqualification from federal office.”
The legal brief lays out for the first time the arguments House lawmakers expect to present at the impeachment trial. It not only explicitly faults him for his role in the riot but also aims to preemptively rebut defense claims that Trump’s words were somehow protected by the First Amendment or that an impeachment trial is unconstitutional, or even unnecessary, now that Trump has left office. It says Trump’s behavior was so egregious as to require permanent disqualification from office.
The brief itself appears to be a comprehensive pre-buttal to Senate Republicans’ arguments — no matter what they choose to offer. The most pertinent arguments come on page 48 and attempt to pre-empt the jurisdictional challenges Republicans will raise. The brief scoffs at the idea of a “January Exception” and quotes John Quincy Adams in arguing that Congress has a lifetime jurisdiction over former federal officers:
There is no “January Exception” to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last. Former President John Quincy Adams thus declared, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by [the] House for everything I did during the time I held any public office.”
It cites the singular precedent of William Belknap, as well as “[e]xperts from across the political spectrum,” in support of that jurisdiction. Democrats also take a swipe at Jonathan Turley for changing his mind on this point:
Even Professor Jonathan Turley (who seems to have changed his long-held views on the subject less than a month ago) previously argued that impeaching former presidents for abuses in office is authorized by the Constitution and can serve as “a reaffirmation of the principle that, within this system, ‘no man in no circumstance, can escape the account, which he owes to the laws of his country.’”210
It is particularly obvious that the Senate has jurisdiction here because President Trump was in office at the time he was impeached. There can be no doubt that the House had authority to impeach him at that point. So the question is not whether a former official can ever be impeached by the House—though, as we will explain, this is indeed authorized. The only issue actually presented is whether the Senate has jurisdiction to conduct a trial of this impeachment. And Article I, Section 3, Clause 6 provides a straightforward answer to that question: “The Senate shall have the sole Power to try all Impeachments” (emphasis added). As Professor Michael McConnell, a former Court of Appeals judge appointed by President George W. Bush, explains: “The key word is ‘all.’ This clause contains no reservation or limitation.
Read on for more on the history and precedents for impeachment, but in the end it doesn’t matter. Republicans will use the jurisdictional argument to oppose conviction and hope to thread the needle with its voters, regardless of this debate. The only way to move them off of that position would be if Trump really does try a justification defense, a la Col. Jessup from A Few Good Men, by blaming Congress for the riot and arguing that he had the right to demand that Congress stop the electoral process. That might not move enough Republicans toward conviction, but it’s about the only thing now that would.