This could be an impeachment like no other. Here’s what to expect
In response to Wednesday’s rampage on the Capitol by a mob of Trump supporters, House Democrats led by Speaker Nancy Pelosi (D-San Francisco) plan to move forward this week with a second impeachment of President Trump, even though his term of office expires Jan. 20.
If they proceed as planned, it will look like no other presidential impeachment in U.S. history. Here’s what we know about what the next few days and weeks could look like.
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Can they really impeach and convict Trump after he has left office?
Yes, the Constitution says the House of Representatives “shall have the sole power of impeachment,” and this means that impeachment is more of a political process than a legal one. The House majority has broad authority to decide whether to lodge charges against the president or any high official.
However, the impeachment power has been generally understood as a means for removing an official from power, not punishing him for his conduct in office. So conducting a Senate trial after Trump is already gone — as is now expected given the time constraints — will be controversial.
The Constitution’s best known clause on impeachment — in Article 2, Section 4 — says, “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 and other high Crimes and Misdemeanors.”
Three members of the House of Representatives introduced the article of impeachment, citing the president’s role in ‘incitement of insurrection.’
Is there precedent for impeaching and convicting a president who has left office?
No. All past presidential impeachments were against sitting presidents. And all, including Trump in 2019, were subsequently acquitted by the Senate and remained in office.
If the House impeaches Trump a second time and the Senate trial is conducted after Jan. 20, it would mark the first time that has happened. Scholars disagree about whether the Senate could act after he leaves office. But the Constitution doesn’t lay out the details of impeachment and removal, so Congress can pretty much do whatever it wants in this situation.
And there is precedent for pursuing impeachment of a government official who has already left office, albeit not for a president. In 1876, when Secretary of War William Belknap was being investigated by the House for corruption, he raced to the White House and handed his resignation to President Ulysses S. Grant moments before the House voted to impeach.
The House impeached him anyway, and the Senate proceeded to have a trial, though it failed to get the two-thirds required to convict him.
If Trump is already gone, what’s the point of going through this?
Members of the Congress — Democrats and at least some Republicans — are outraged that Trump incited a mob of fervent supporters to rally in Washington on Wednesday and to march to the Capitol to fight against what he falsely claimed was a “stolen election.” They believe it is necessary for Congress to remove Trump from power and rebuke him in the strongest possible terms for what Senate Republican leader Mitch McConnell (R-Ky.) called a “failed insurrection.”
Moreover, if Trump were convicted on the charges, the Senate could also approve by majority vote a “disqualification to hold an office of honor, trust or profit.” This would prevent Trump from seeking the presidency again in 2024. That ban isn’t automatic. The Senate would have to vote a second time.
Here are leading scenarios as Congress weighs punishing Trump for inciting violence: resignation, 25th Amendment, impeachment, censure, 14th Amendment, no action.
Can the House impeach in a matter of days, without any debate or hearings?
Yes, though it may set a controversial precedent. The House sets its own rules for proceeding. Although past impeachment proceedings have involved lengthy hearings and debate, the Constitution doesn’t require that.
In 1868, the House impeached President Andrew Johnson within days of firing his secretary of War in violation of the Tenure of Office Act, which Congress had passed to keep him from changing the members of his Cabinet without its permission. The articles of impeachment hadn’t even been written yet when the House approved them. But generally that speedy impeachment is not viewed favorably by historians.
So how fast might this go?
On the House side, pretty fast. This is the timeline Pelosi has laid out:
On Monday, Majority Leader Steny H. Hoyer (D-Md.) requested “unanimous consent” to bring up a resolution from Rep. Jamie Raskin (D-Md.), which calls on Vice President Mike Pence to begin the 25th Amendment process to start removing Trump from office. Pence is thought to oppose invoking the amendment, which lays out the procedure for removing a president who is unfit or incapacitated. A House Republican objected and the request failed.
Raskin’s resolution will be brought up on the floor Tuesday, when it will likely pass thanks to the Democratic majority. Pelosi said she’ll give Pence 24 hours to act. If he doesn’t, Democrats say they will bring an article of impeachment to the House floor, with a vote expected before Joe Biden assumes the presidency Jan. 20.
It is important to remember that impeachment itself does not mean removal from office, and the Senate trial is likely to take much longer.
Think about impeachment as the House voting to bring charges against the president, not unlike how a grand jury might hand up an indictment.
It then becomes the job of the Senate to hold a trial and determine whether to convict the president and remove him or her from office. The Senate doesn’t return until Jan. 19 and is not likely to move quickly to consider new charges against the outgoing president.
In fact, some Democrats are floating the idea of waiting to forward the article to the Senate for several months to give the incoming Biden administration time to address the pandemic and get Cabinet officials approved.
These are the House Republicans who voted to impeach the president, the second impeachment Trump has faced.
Can the House really just delay sending the article for several months?
Yes, and the House has held onto articles before.
Once the House transmits the article to the Senate, the Senate is required to stop all other action and hold a trial. But that would interfere with the first 100 days of the Biden administration, traditionally the most productive time in a president’s term. So some on Capitol Hill are discussing holding the articles in the House for a few months so other work can be accomplished, such as another massive economic aid package to deal with the coronavirus crisis.
House Majority Whip James E. Clyburn (D-S.C.), a close ally of Biden, said over the weekend that Democrats should give Biden “the 100 days he needs to get his agenda off and running.”
Still, it would be an odd argument for Democrats to make: that Trump was so dangerous he needed to be impeached immediately, but that the trial can wait until a more convenient time.
And there is no guarantee that the strategy would prevent the impeachment from becoming a distraction. Pelosi delayed sending over the 2019 impeachment articles for several weeks, delaying the Senate trial until January 2020. The delay itself became a rallying cry by Republicans.
What are the chances of Senate conviction?
Extremely low. It takes approval of two-thirds of the Senate to convict, a high bar with the Senate evenly split. A few Republicans have hinted they would be open to conviction — more than the one who joined Democrats voting to convict during Trump’s 2020 impeachment trial — but likely still not enough.
Also, historical precedent is not on their side. The Senate has never voted to convict and remove a president impeached by the House.
Would Trump still get his presidential benefits and Secret Service protection if convicted?
That is unclear. He might lose some perks but would still get protection.
The 1958 Former Presidents Act guarantees past presidents a pension, access to health insurance, office space and staff, but only if they are not removed from office.
But the act was amended in 2013 so that even former presidents removed from office retain their lifetime Secret Service protection.
The question might arise: What happens if Trump is convicted but not “removed,” since he’d already left. Also keep in mind, the act can always be amended by Congress in a way that might affect Trump’s benefits.
If banning him from future office is the most tangible result from conviction, isn’t there another way to do that?
Possibly, but it’s a long shot and has never been used.
Section 3 of the 14th Amendment, which was passed after the Civil War, says a person cannot hold office if they’ve engaged in insurrection or rebellion against the United States, unless two-thirds of both chambers of Congress vote to allow it. The provision was used after the Civil War to keep Confederates out of Congress.
If Congress censures the president, or if the House impeaches him for inciting insurrection, that might be used as a legal basis for suing to block Trump from running in the 2024 election, though it’s a long shot legally.
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