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GETTING READY FOR AN IMPEACHMENT TRIAL, AGAIN. Lots of things are happening in the Democrats’ push to impeach former President Trump. First, House Speaker Nancy Pelosi again refused to say when the House will send to the Senate the article of impeachment that it rushed to pass on January 13. The Senate is now in session, and there is no reason — if impeachment is so urgent that the House had to pass the article with no hearings, no authorization, and just a couple of hours of debate — that the House could not send the article to the Senate right now. So Pelosi appears to be playing games with the timing of the Senate trial, just as she did when the House first impeached Trump in December 2019.
Now, Senate Minority Leader Mitch McConnell has weighed in to suggest a timeline for the trial, whenever Pelosi decides to send the article to the Senate. Speculating that the trial might get under way on, say, January 28, McConnell asks that Trump be given one week to answer the article, and then another week to submit his pre-trial brief. The House managers would also submit their briefs in that period. That is a “modest and reasonable” amount of time for Trump to prepare, McConnell said, “given the unprecedented speed of the House’s process.”
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“At this time of strong political passions,” McConnell added, “Senate Republicans believe it is absolutely imperative that we do not allow a half-baked process to short-circuit the due process that former President Trump deserves or damage the Senate or the presidency.” In light of what the House did — throw out all due process and pass an impeachment article in the blink of an eye — “half-baked process” seems an entirely accurate way to describe what has happened so far.
Meanwhile, Trump has hired a lawyer to represent him in the trial. At the recommendation of Republican Sen. Lindsey Graham, he has hired South Carolina lawyer Butch Bowers. A lawyer with wide experience in political cases, Bowers has represented two South Carolina governors, Nikki Haley and Mark Sanford. While Bowers is undoubtedly a fine lawyer, his selection comes after other attorneys who had been involved in the first Trump impeachment declined to sign on a second time. That is a shame, because this Trump impeachment — a reckless, corner-cutting affair — could set a terrible precedent for future presidents. Trump needs a big and vigorous defense.
Now, Senate Republicans are also, apparently, beginning to realize the issues involved in the impeachment of a former president. They are reportedly adopting the position that an ex-president cannot be impeached. The idea is that impeachment is the Constitution’s method for removing a president found guilty of a certain set of offenses — “treason, bribery, or other high crimes and misdemeanors.” The important thing is that it is a method for removal, and you cannot remove a president who has already left office.
Democrats argue that there can still be an impeachment trial for former President Trump because the Constitution says that a convicted president can also be disqualified from holding “any office of honor, trust or profit under the United States” — that is, any federal office, like the presidency or member of Congress. But here is the thing: The Constitution says that “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.” Who did the framers mean when they referred to “the president”? Did they mean the President of the United States? There’s only one of them at a time. Or did they mean anyone who has served as president? It seems obvious they meant the president in office. The text of the Constitution is pretty clear: Impeachment is for the serving president. Donald Trump is not the president now.
But that is a subject for a future newsletter. (There is a lot of fascinating legal debate over the question, and it’s worth diving into it.) In the meantime, Washington waits for Nancy Pelosi to act.
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