The Second Impeachment Trial of Donald Trump

January 26, 2021

We've obviously never had two "trailing posts" on a Presidential impeachment trial, as there's never been two before.

And apparently according to the Senate, which will be conducting one, there still will not be.

Amy Howe reports on her excellent Supreme Court blog that Chief Justice Roberts will not be presiding over this trial, as Donald Trump isn't the President.  The Chief Justice presides over Presidential impeachment trials.

Roberts will not preside over impeachment trial

Which begs the question, can Donald Trump, private citizen, be impeached at all?

Indeed, that's a question we've already begged.

Monday at the Bar: Can The Senate Try An Ex-President?

The Article of the Constitution that allows for impeachment states as follows. 

Article II, Section 4: 

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

"[S]hall be removed.

As we also earlier noted:

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, 

Hmmm. . . .

Love him or hate  him, here's the problem.  The text of the Constitution talks about impeachment in terms of "removal".  You can "extend" a punishment up to removal.  That's the top penalty.  By implication, you have to be capable of being removed.

Or so it seems to me.

And the fact that the Senate has now determined that Roberts won't preside means they know that  they're dealing with a lesser impeachment.

But there's no such thing. The Constitution doesn't say that the Senate can reach out and try private citizens, which is what Trump is.

I understand why they're so upset. And I understand the House voting to impeach Donald Trump.  It was in fact doing something, he was still the President. And if the Senate had reconvened quickly, something that would have defied its recent history and behavior, it could have held a type of trial.

But, it didn't.

So we'll now have a trial with an early motion to dismiss for unconstitutionality.  If the Senate Pro Temps rejects the motion, and he will, it'll go on, but any conviction, if there is one (and by now the heat of the moment has cooled enough that seems increasingly unlikely), it'll be appealed to the United States Supreme Court.  The Court will then hold, if it takes it up, that only a sitting President can be impeached.

And is it even wise.  A conviction in an impeachment trial will, at most, prevent Donald Trump from running again.  But he's 74 years old now.  If he were to run again he'd be 78 at that time.  Granted, Joe Biden is that old, but Biden is just starting out.  We'll see what we think of electing Presidents that old when he's leaving office at age 82, assuming that the stress of the occupation, and it is stressful, hasn't worn him down so much that in four years it'll be President Harris who is running as an incumbent.

At any rate, Trump said he'd be back "in some form".  If he's convicted in an impeachment, that fuels his fanatic followers with the belief that he was a victim of a conspiracy and now the Democrats and "establishment" Republicans are seeking to torpedo him at all costs, as he'll be reelected, irrespective of age, again.  That will add to their ardor for a man whom some of them are now questioning.  And if he's going to try to retain control of the GOP, it'll aid that.  If he's not going to try to retain control of it and bolt, it would add to that, although that would likely only temporarily hurt the GOP.

There remains, I'd note, plenty of legal processes which can still be undertaken, some of which likely will be.  Invocation of the 14th Amendment may be a possibility. And certainly criminal prosecution is.  

But impeachment?

Well, we're going to have an impeachment trial. . .and appeal. . . 

On other matters, a Florida Republican House members is coming to Wyoming to speak in Cheyenne at the invitation of an Albany County member of the legislature to speak against Elizabeth Cheney.

Cheney is taking a lot of heat form county GOP bodies but she's not in some news outlets.  Comments from readers in the last Sunday issue of the Tribune were overwhelmingly in her favor.  Either the readership of the Tribune is much more to the left of the GOP rank and file, or the county organizations are much to the right of it.  I suspect it's the latter.

January 29, 2021

Rand Paul introduced a resolution to dismiss the impeachment trial.  45 Republican Senators voted for the resolution.

January 31, 2021

Donald Trump's entire impeachment defense legal team quit.

The reason that his lawyers departed with less than two weeks to go is, apparently, that they wished to mount an actual legal defense based upon the problematic constitutionality of impeaching a private citizen, given that Trump is now out of office.

Trump wants to argue, once again, that the election results were fraudulent.

The trial commencement date had already been delayed so that Trump could hire a defense team.

While no one has said it so far, what this should make clear is that anyone taking this on is going to be faced with a client who is going to demand to continue to perpetuate the myth he won the election, and that is what will be his main focus. This presents a serious risk of turning the proceedings into a complete circus. Trump already is ware that the GOP will not vote to convict and therefore there's really no downside to his attempting this as it will reinvigorate his loyalists.

February 5, 2021

The House impeachment managers asked President Trump to testify at his upcoming impeachment trial.  Trump refused.

February 10, 2021

The Senate voted that it had jurisdiction to proceed with the trial 56 to 44.  Both of Wyoming's Senators voted that they did lack jurisdiction.  Senate Minority Whip McConnell continues to inform his body that they may vote their conscience, but absent something really wild, it seems unlikely that these percentages are unlikely to change.

The opening statements were heard.

Those who watched them (I did not) reported that the prosecution's opener, which related events to a video clips, was extremely moving.  In contrast, the defense opening statement has been characterized as "rambling" and "weird".  Both can be found on Youtube.

February 12, 2021

The House Impeachment Managers wrapped up their case yesterday.

As a practicing trial layer, these impeachment trials are, I must say, really odd.  If these were run by practicing trial lawyers, there would be live witnesses, examination and cross examination.  Personally, if I were prosecuting the trial, I'd call Donald Trump, whom I figure would be a train wreck of a witness, as well as Mike Pence and the members of his family.  I'd also call a lot of the insurrectionist. 

This isn't, of course, how this is being done.  Instead, it's all prepackaged presentation.   I'm sure the defense will be as well.

February 13, 2021

It was revealed by one of the ten Republicans who voted to impeach President Trump yesterday that House Minority Leader Kevin McCarthy called President Trump during the insurrection.  Trump was unsympathetic with McCarthy's efforts to get Trump to act and stated that he guessed the insurrectionists "are more concerned about the election than you are."

February 13, Cont.

The Senate, with five Republicans going along (interestingly including Lindsey Graham) has voted to have witnesses in Trump's impeachment trial.

This is related to the item just above in which a member of Congress has reported that Trump was informed of the presence of the insurrectionist and reacted as noted.  That Congressman will be called as a witness.  Trump's lawyer responded by suggesting that he'd need to call over 100 witnesses.

Frankly a trial without witnesses, as noted above, is bizarre.  So no matter how else it might be looked at, this is a move towards litigation normalcy.

February 13, Cont.

No witnesses were called, apparently as none were willing to voluntarily come forward.

The vote was held and and Trump was found not guilty of the charges, although there were more votes to convict the former President than in any prior Presidential impeachment trial.  Seven Republicans crossed over to vote for the measure, which put it ten votes short of passing.

Mitch McConnell gave a blistering indictment of Trump in a post trial statement.  It was in some ways more damning than that given by the House presentation.  He excused his no vote on a legal argument, arguing that there was no jurisdiction to impeach as Donald Trump was no longer in office, a semi problematic argument given that McConnell's refusal to take the measure up earlier caused the trial to occur after the inauguration.  McConnell is clearly walking a tightrope in an effort to restore the GOP to conservatism and  he's now doing so in the face of a threat from significant Republican donors to withhold funding from those Republicans who voted not to convict the former President.  McConnell surprisingly suggested that Trump might be liable for criminal or civil prosecution and therefore hasn't escaped justice yet, although that would have the effect of putting any Federal prosecution under Joe Biden's watch.  Trump, for his part, has already released as statement that he has big plans.

Therefore, while its really too early to tell how this will shake out long term, Trump's legacy now includes two impeachment trials and more votes to convict in the second than any other in American history.  He still refuses to yield to the truth regarding his electoral defeat and is making sounds that he intends a comeback.  His base, while shrunk, remains and remains a potent force.  Republican numbers overall, however, have decreased as the party hemorrhages members following the insurrection.  The net result may be that Trump's base may retain control of the party, but its shrunken numbers may may have already damaged it beyond repair for the 2022 and 2024 elections.

Message to Nebraska GOP State Central Committee

Nebraska Senator Ben Sasse on being censured.

You are welcome to censure me again.  But let's be clear about why this is happening. It's because I still believe, as you used to, that politics isn't about the weird worship of one dude.

Nebraska Senator Ben Sasse.

Op eds. Two to draw from.

The Tribune ran a couple of interesting op eds regarding recent stories involving or surrounding Representative Cheney.

The first was by a former head of the Wyoming Republican Party, Ron Micheli.  Micheli is highly conservative but of the traditional Republican type.  He's on record lamenting the alt right drift of the GOP in Wyoming.

He now writes opinion pieces, and his on recent events can be found here:

Micheli: We have seen gadflies like Gaetz before

Of note, Gaetz in not only portrayed as a gadfly by Micheli, the headline says Gaetz is.  Backing this up, Gaetz stated yesterday he was willing to resign from the House to defend Donald Trump in the upcoming impeachment trial, if Trump were to ask.

Trump's not going to ask.

Trump's legal problems have really created an odd sideshow for politicians who want to try to advance their careers in odd legal ways by associating themselves with him.  Ted Cruz, for example, earlier offered to argue one of Trump's election challenge cases in front of the Supreme Court, as if having Ted Cruz argue that case does anything much more than to advance the career of Ted Cruz.  Really silly.

The other was by Christine Hillegass, a psychologist living in Livingston Montana.

Hillegass: Voting her conscience is a positive

Micheli's opinions can't be discounted, given his relationship to the GOP.  Hillegass' probably can be by some, as she lives in Montana, not Wyoming, but they're interesting nonetheless.

Monday at the Bar: Can The Senate Try An Ex-President?

Lots of people are asking the same question.

And now NPR is taking a look at it:

Can The Senate Try An Ex-President?

Frankly, I think the answer is no, and the example of Richard Nixon is a good one. Sure, he'd been pardoned, but an impeachment might not really remove the incidents of being convicted in an impeachment.  If Congress thought there was any chance that they could have tried a President after he left office, they would have impeached Nixon.

And the text of the Constitution is clear:

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, 

"[N]ot further than to removal from Office, and disqualification to hold and enjoy any Office . . . 

It doesn't say "removal. . . or disqualification".  It says not further than "removal. . . and disqualification.

Of course, you could argue, and now the argument will be made, that those punishments are the highest that can be meted out, but lesser ones can be as well. So they're a cap. And you could still find a person disqualified to hold office.

Sure, that's true, but by the same logic you could find an aged bank robber who passes away prior to his trial liable for the full measure of a sentence as well.  

And that's the problem.  Impeachment is for removal.  

And the fact that impeachment is for removal means we're now going to see the government tied up in the circus of an impeachment trial followed by some sort of appeal to the United States Supreme Court. . . assuming that a motion to dismiss isn't entertained and granted by Justice Roberts, who has the misfortune of presiding over all of this.  It'll be a giant distraction, and a distraction at the very period where Biden, if he's to have a successful Presidency, needs to act.

And there are alternatives.  If President Trump is guilty of crimes, which it is argued an impeachment does not actually require, he could be charged and tried for those.  Indeed, a long investigation in New York is still pending and seems likely to.  If he's convicted of any felony, he's likewise be unable to hold further office, and there's be additional penalties at that.

Which is why he'll likely attempt to pardon himself on the way out the door.

But, at least in my view, you can't pardon yourself.  It's never been tested, of course, but I doubt very much you can do it, and when that's reviewed by the Court, the Court will hold that. To hold opposite would be to place the President above the law.

None of which is an argument in any fashion to the effect that the entire post election administration denying the results of the vote fiasco shouldn't be looked at. Real damage has been done to our democracy and the insurrection was inexcusable.  The basic gist of impeaching the President would be due to the insurrection, the full facts of which we really aren't aware of in regards to guilt.  At a bare minimum, Trump was careless with his words and that fueled the violent storming of the Capitol.  That may or may not be a crime under conventional law, but under the Constitution, it might amount to a "misdemeanor" in context, a topic that we dealt with way back during the President's first impeachment.  Which means that the impeachment trial may end up being essentially a prolonged hearing which may be worthwhile undertaking in its own right, for fact finding purposes.  And they likely feel that they simply can't stand and do nothing.

Which gets me back to some earlier made points, one being that if Nixon had been tried back in 1973, which would have required Ford not pardoning him, we wouldn't be enduring this now.