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Twist in the wind: fast impeachment, delayed trial

Why would anyone want to impeach President Trump during his last week or so in office?

There are good reasons, over and above the obvious need for accountability.

1. To use as leverage to get something better. Resignation or removal of his authority via the 25th Amendment are preferable, but the Republicans aren’t going to force things down those roads without the threat of something worse. The threat of impeachment doesn’t appear to be working yet, but there is no way of knowing whether it will without proceeding.
2. To hang the Damocles sword over his head. Trump is already doing bad things to try to limit Biden’s governing options: the auction of Arctic drilling rights, designation of the Houthis as terrorists (which will limit humanitarian aid to a lot of Yemenis) as well as Cuba as a state sponsor (for its support to Venezuela’s President Maduro). He could do still do far worse in his last days in office: pardon himself and his family as well as the Capitol rioters, encourage a riot at the Inauguration, and attack Iran are three of the more obvious. He is much less likely to pull stunts like these if impeachment is already a done deal and only lacks confirmation in the Senate for conviction.
3. To limit his options after he leaves office. The same applies after January 20. He could still then encourage a seditious insurrection by his supporters. He could also give Russia valuable intelligence in exchange for real estate financing or even the offer of a hotel project in Moscow, which he has long coveted. And of course he could try to run again for office. All these and other possibilities are less likely if a Senate trial is a real and present danger to him.

So there are good reasons to impeach Trump quickly, but not to try to convict him quickly. As things stand, there is no reason to believe that the 17 or so Republican senators needed to convict if everyone turns up to vote will be available. Nor is there good reason after January 20 to preoccupy the Senate with a trial in addition to pushing Biden’s agenda, which will be harder if the Republicans hold vital votes on conviction and dig in their heels. Best to get impeachment done but then slow the process to a crawl and keep the threat of conviction in reserve.

It is even arguable that the provisions of the 14th Amendment would apply in practice without a formal conviction:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 

Would any political party want to risk nominating for the presidency someone already impeached for having given aid and comfort to those engaged in insurrection or rebellion against the United States?

I suppose the answer might be yes: the Republican Party of Ronna McDaniel and Donald Trump might do that. But the odds of winning an election with such a candidate seem to me minimal. The Damocles sword would still remain over his head.

So on balance, it would be wise to impeach, quickly. But there is no need to proceed with the trial in the Senate until the votes there appear to be available. Let Donald twist in the wind.

The sad fact is we are still going down hill

Intense focus this weekend is on resignation, the 25th Amendment, and impeachment as means of removing President Trump from office. The first is unlikely, the second just doesn’t seem to be happening, and the third will happen in the House but with dim prospects of conviction in the Senate. Accountability is going to be difficult.

The President is not the only miscreant in an official position. Here are some other thoughts about what to do.

Brother Jeremy reminds:

There’s always Section 3 of the 14^th Amendment:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

All we’d need for the next Presidential election cycle is an RNC, and if necessary a Supreme Court, that will invoke it.  Certainly, an impeachment and conviction by the Senate would make this stronger, though by itself 14-3 could suffice – of course, provided the Republican Party steps to the plate.  Which I guess it would.

I’m less sure than he is about the RNC, which Friday reconfirmed Trump’s control. But it is a suggestion I haven’t seen elsewhere that could be applied not only to the President but also to others.

That is important, especially for Senators Cruz and Hawley. Here is Senator Hawley greeting the demonstrators before the sacking:

He and Cruz not only encouraged the demonstrators but also questioning of the election results. They have continued even after the sacking of the Capitol to lie about the election outcome. Five other Republican senators joined them in voting to overturn Biden’s election, as did 147 Republican members of the House. It would require two-thirds of the Senate or House to expel them, so that is not going to happen.

For the lawyers among the other miscreants, there is disbarment. Here‘s a petition already signed by 1300 lawyers and law students. Essentially they are saying that Senators Cruz and Hawley are guilty of “repeating dangerous and unsubstantiated statements regarding the election and abetting the lawless behavior of President Trump.” This behavior helped to inspire insurrection against the democratic institutions lawyers are sworn to protect. I’m not sure why Rudy Giuliani is omitted from this petition, but he is certainly as guilty of the allegations as Cruz and Hawley.

As for the small fry who actually participated in the putsch, the list of those being charged in Federal and District courts is getting longer. I’ll hope it reaches at least into the hundreds, which is what the acting US attorney for the District of Columbia is projecting. The coddling of white rioters was apparent to all on January 6. The prosecutors and courts are going to have to exert themselves more than usual to erase the impression that if you are white you can do as you please in a public building.

If Trump is not quickly deprived of his executive powers, he will soon be pardoning anyone he sees as a supporter, including the rioters. It would be a final disgrace among so many, but I have my doubts that he will try to pardon himself. Doing so would invite an indictment to test to the validity of such a pardon. The last thing this president needs is one more court case after leaving office.

He is more likely to resign in the hour before Joe Biden’s inauguration, to give Vice President Pence just enough time to sign the pardon. Apart from resisting Trump’s instruction to overturn the election results–a move that would not have withstood the inevitable challenge in the Congress–Pence has shown no sign of resisting Trump. I don’t put him below doing the pardon, if only to ensure his own standing with Trump’s supporters.

The sad fact is we are still going down hill. The insurrectionists and their encouragers need far more punishment than they have so far suffered. Only a sound defeat in court, at the polls, and in public opinion will prevent their resurgence.

Here, if you haven’t had enough, are our patriots trying to interfere with the press during their attempt to stop the counting of Electoral College votes:

Stevenson’s army, January 8

– They organized in plain sight.
– It wasn’t just “protesters.” Some were out for blood.
– They stormed the Capitol.
– Neither the National Guard nor the Capitol Police wanted to use the Guard, which complicated the effort to get reinforcements.

– Cong. Clyburn is unhappy that cabinet officers are resigning instead of voting to remove Trump under the 25th amendment.

– Meanwhile, Ben Wittes explains why a self pardon by Trump is likely to be rejected.

My SAIS colleague Charlie Stevenson distributes this almost daily news digest of foreign/defense/national security policy to “Stevenson’s army” via Googlegroups. I plan to republish here. To get Stevenson’s army by email, send a blank email (no subject or text in the body) to stevensons-army+subscribe@googlegroups.com. You’ll get an email confirming your join request. Click “Join This Group” and follow the instructions to join. Once you have joined, you can adjust your email delivery preferences (if you want every email or a digest of the emails).