Senate Republicans are eyeing a possible loophole when it comes to President Trump’s impeachment — raise objections about the process.
By using objections to process as a basis for voting against impeachment or conviction, Republicans are finding a political middle ground. They avoid the potential political consequences of voting in favor of it, such as loss of support from the Trump-supporting voter base or public condemnation from other Republicans, while also avoiding being labeled by Democrats as apologists or enablers of Trump and the mob.
Republican Sens. Tom Cotton of Arkansas and Lindsey Graham of South Carolina each said Wednesday that it is unconstitutional to convict a former president on impeachment charges.
“The House has passed an article of impeachment against the president, but the Senate under its rules and precedents cannot start and conclude a fair trial before the president leaves office next week. Under these circumstances, the Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” Cotton said in a statement Wednesday night. “The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens. The Constitution presupposes an office from which an impeached officeholder can be removed.”
Senate Majority Leader Mitch McConnell said this week that the Senate could not convene to consider the impeachment article before President-elect Joe Biden is inaugurated and Trump leaves office on Jan. 20, and at least 17 Republican senators would have to join with Democrats in order to meet the two-thirds requirement for convicting Trump on the impeachment charges.
In a Wednesday night Fox News appearance, Graham said that impeaching Trump after he’s out of office is “an unconstitutional attack on the presidency,”
“To my Republican colleagues, let’s stand up for the idea that post-presidential impeachments are bad for the presidency, bad for the country, and if we go along with it as Republicans, we will destroy the Republican Party,” Graham said. “If we do it as a Senate, I think, over time, we will destroy the presidency.”
The constitutionality arguments from Cotton and Graham are similar to process concerns raised by House Republicans who believed that what Trump did was wrong.
While only 10 House Republicans voted in favor of impeaching Trump on “incitement of insurrection” relating to last week’s breach of the U.S. Capitol building by Trump supporters who believed the election was “rigged” and were opposed to Congress certifying Biden as the president-elect, many of those who voted against impeachment did not defend Trump’s conduct. Instead, they explained their vote against impeachment by saying they did not agree with the language or basis of the Democrats’ impeachment article and the lack of regular Judiciary Committee hearings to gather evidence.
“The President of the United States deserves universal condemnation for what was clearly, in my opinion, impeachable conduct: pressuring the Vice President to violate his oath to the Constitution to count the electors,” Texas Republican Rep. Chip Roy said on the House floor on Wednesday. “Unfortunately, my Democrat colleagues drafted articles that I believe are flawed and unsupportable, focusing on the legal terms of incitement and insurrection … The danger for open speech and debate in this body and for the republic is high if the House approves the articles as written.”
Cotton and Graham are not alone in their view that post-presidency impeachments are not constitutionally permissible. Harvard Law professor emeritus Alan Dershowitz, who defended Trump in his first impeachment trial in the Senate last year but has said he will not do so this time, made the argument in a recent video “seminar.”
“It will be unconstitutional for the president to be impeached with the knowledge that he can never be tried and removed by the Senate,” Dershowitz said. He argued that the president can only be barred from holding future office if he is also removed from office by the Senate and that the framers of the Constitution “intended it to be applicable only to sitting officeholders, not people who have already left office and are ordinary citizens.”
But other constitutional law scholars believe that it is perfectly permissible for the Senate to convict a former president.
“The Constitution doesn’t have any timeline on when an impeachment trial begins or ends,” said University of North Carolina at Chapel Hill law professor Michael Gerhardt. He added that there are “precedents in the Senate when the Senate proceeds with an impeachment trial after the person left office.”
In 1862, the Senate convicted Tennessee Judge West Hughes Humphreys on the impeachment charge of supporting the Confederacy and barred him from holding future federal office, which occurred the year after he accepted a position as a Confederate judge and abandoned his United States post.
The Senate also held an impeachment trial in 1876 for William Belknap, who was War Secretary under President Ulysses Grant and was impeached on corruption charges, even though he handed in his resignation to Grant and “burst into tears,” according to the Senate website, minutes before the House voted to impeach him. Though a majority of Senators voted to convict, they did not reach the two-thirds threshold, and Belknap was acquitted.
University of Virginia law school professor Charles Barzun said he also believes that arguments against convicting a former president are incorrect.
“It would enable the person impeached to avoid one of the two available sanctions for having committed a ‘high crime or misdemeanor,’ disqualification from future office-holding, by resigning once he or she has been impeached but before the Senate trial, thereby undermining one of the chief purposes of granting Congress the impeachment power in the first place,” Barzun said.
