Byron York’s Daily Memo: The Senate’s coming impeachment fiasco

THE SENATE’S COMING IMPEACHMENT FIASCO. Capitol Hill is coming to grips with the essential weirdness of the Democrats’ drive to remove President Trump from office after he leaves office. When the House passed a quickie impeachment article on Wednesday — dispensing with the hundreds of hours of deliberation and due process that would precede a normal impeachment vote — it was clear that the Senate would not have time to hold a trial for the president before the president leaves office five days from now, on January 20.
 
Remember that the primary purpose of an impeachment trial is to remove the convicted official from office. Here is the description of impeachment from Article II of the Constitution: “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.” The Constitution gives the Senate “the sole power to try all impeachments” and says that “no person shall be convicted without the concurrence of two thirds of the members present.” If the official is convicted, the punishment “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 removal part will be off the table. The Senate trial will not begin until January 20 at the earliest, after President Trump leaves office. So Democrats propose to use impeachment to disqualify Trump from ever holding federal office again, which they say requires only a majority vote in the Senate. But the Constitution clearly requires a conviction before punishment, so two thirds of the Senate would have to convict former President Trump before he could be disqualified.
 
Proponents will tell you that there is precedent for it, a cabinet officer in the 19th Century who resigned to avoid looming impeachment but was impeached anyway. But the fact is, no president has ever been the subject of an impeachment trial after his term expired. It has never happened. And before it happens to former President Trump, the Supreme Court should decide whether it is constitutionally permissible.

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There are two new polls on the impeachment question. An NBC survey shows the public narrowly divided on the issue, with 50 percent for and 48 percent against. An ABC-Washington Post poll shows a wider spread, with 56 for and 42 percent against. But both polls asked respondents whether they supported removing Trump from office without mentioning that in real life Trump will already be out of office when the impeachment verdict is rendered. This is just a guess, but it seems opinion might change when the public realizes that Democrats are using impeachment against a president who has already left office.

Finally, there is the political question. Some Democrats are clearly concerned by the prospect of a Trump impeachment trial consuming the Senate in the first weeks of the Biden administration. During that time, the new president will need the Senate both to confirm his appointees and to consider his legislative agenda. Instead, they will be pondering the moot question of whether to vote to remove a president who has already left office, and then, if they do, whether they should bar that out-of-office president from ever holding federal office again.
 
Joe Biden himself has said he hopes the Senate can split its schedule, spending half the day on impeachment and half on the new administration’s priorities. A Democratic senator, Kirsten Gillibrand, told CNN she hoped the Senate “could do them actually simultaneously, with one day doing Senate trial, the next day doing COVID relief or making sure that President Biden has his cabinet in place right away.”

Doing that would require Republican cooperation. But why should Republicans help Democrats with a kooky plan that would require voting to remove a president who is already gone? Anticipating that possibility, Gillibrand said, “We can certainly walk and chew gum at the same time, but it is a procedural question. If we can’t, then maybe we delay the trial for a while so that we could actually get President Biden’s nominees and cabinet up and running, so that we could actually get a COVID relief package out of the door immediately.”
 
To that point, there have been suggestions that House Speaker Nancy Pelosi will again play games with the timing of the Senate impeachment trial. Remember that after the House first impeached Trump in December 2019, Pelosi held on to the articles of impeachment for a few weeks until she felt the political atmosphere was better for a trial. Now, she is holding on to the articles again, and there is nothing to stop her from holding on to them until April, or June, or whenever.
 
Will the public support a trial in the summer to impeach a president who left office months earlier? There’s no way to know. But Democrats will have narrow control over the Senate, and they can do what they want.

For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show — available on the Ricochet Audio Network and everywhere else podcasts can be found. You can use this link to subscribe.