Top Republican senators argued on Sunday that the impeachment trial of former President Donald Trump that is slated to begin this week is constitutionally illegitimate – even trying to suggest that Democrats may be responsible for the U.S. Capitol storm.
The firing and diversionary tactics suggest that, after a brief period of uncertainty about whether to blame Trump, Republicans are ready to come up with a fairly unified front if they oppose Trump for his role in inciting should be sentenced to the uprising on January 6th.
Senator Ron Johnson (R-WI) argued that 45 Republican senators already considered the Senate trial “unconstitutional” when they spoke to Fox News’ Maria Bartiromo on Sunday. He was referring to the total number of votes on Senator Rand Paul (R-KY )’s January motion to deny impeachment on the grounds that it was unconstitutional to hold impeachment for a private individual. Five Republicans, along with the Democrats, turned down the motion, but every other Republican voted in favor. (Many legal scholars believe that such a process is entirely constitutional – more on that later.)
But Johnson’s subsequent comments on Fox took a more shocking turn – he floated the baseless idea that House Speaker Nancy Pelosi was in some way responsible for the violent attack on the Capitol.
“Is that another diversionary operation? Should this differ from what the speaker knew and when she knew? I don’t know, but I’m suspicious, ”said Johnson.
Other senators also tried to question the legitimacy of the process. Senator Bill Cassidy (R-LA) said the House vote on impeachment was only on display – and resembled legal process in an authoritarian state.
“There was no trial. It’s almost like calling it a show trial in the Soviet Union, ”Cassidy said on NBC’s Meet the Press. “The president was not there, he was not allowed to seek advice, they did not collect evidence, in five hours they were judged and boomed, he was charged,” he said.
Indeed, the House impeachment process does not involve any process. does the Senate proceedings after impeachment. Trump was invited to testify at his Senate trial but declined.
WATCH: “If it had happened in the Soviet Union, you would have called it a show trial,” @SenBillCassidy says of the second impeachment trial against the former president. Trump card. #MTP
Cassidy: “The House did an incredibly poor job of getting a case up ahead of their impeachment vote.” pic.twitter.com/5Pzlrq3ROA
– Meet the press (@MeetThePress) February 7, 2021
Senator Lindsey Graham (R-SC) argued on CBS ‘Face the Nation that the trial was an “unconstitutional exercise” and that “the outcome really is not in doubt”.
He suggested that attempts to sanction Trump’s behavior should instead be dealt with through the conventional legal system. “If you believe he has committed a crime, he can be prosecuted like any other citizen. Impeachment is a political process, ”said Graham.
Graham rightly claims that the outcome of the trial is hardly in doubt. 17 Republicans would have to join every member of the Democratic caucus for a conviction to be successful, since a conviction requires two-thirds of the Senate. As was evident on Sunday, the GOP seems to have little appetite for such a vote.
However, impeachment is about prosecuting criminal offenses – particularly “high crimes and misdemeanors” under the Constitution, and Trump’s impeachment does not appear to be an “unconstitutional exercise” as Graham suggested.
There are historical examples of officials being tried after they have left
Many Republicans have argued that the Senate process is unconstitutional because Trump has already resigned. However, scholars and Democratic lawmakers have warned the U.S. Constitution is silent on the issue, pointing to previous examples of federal officials such as judges standing on trial even after they leave office.
According to the Wall Street Journal, a report by the Congressional Research Service – the internal research organization of Congress – found that “while the matter is under discussion, the weight of scientific authority is that former officials can be tried and tried.”
The CRS report cited the example of Secretary of War William Belknap, who was indicted by the House of Representatives and tried in the Senate in 1876, despite having resigned after evidence surfaced that he had acted corruptly.
Laurence Tribe, a law scholar at Harvard Law School, wrote in the Washington Post in January: “The clear weight of history, original understanding and congressional practice supports the conclusion that the end of Donald Trump’s presidency would not end his Senate trial. ”
Tribe wrote that the constitution’s references to impeachment do not limit impeachment to whether a civil servant is in office. “Nothing in the Constitution suggests that a president who has proven himself to be a mortal threat to our survival as a constitutional republic should be able to exercise our ability to judge his behavior and ensure that it can never return to the.” To put to the test. ” he wrote.
That is not to say that there is consensus on this view. Former federal appeals judge J. Michael Luttig has argued that the Senate trial is unconstitutional and believes that only the Supreme Court can give a final verdict on the matter.
Much is still uncertain about the process
One open question is whether a GOP senator will vote in favor of Trump, especially given that not all Republican senators have tried to undermine the legitimacy of the Senate process.
Pennsylvania Senator Pat Toomey – one of the five Republican senators who voted against Paul’s motion – said he believed the trial was constitutional on Sunday.
“I think it is clearly constitutional to go through a senate trial on impeachment. In this case, the impeachment took place before the president stepped down, ”Toomey said of the state of the union on CNN. “I still think the best result would have been the resignation of the president. Obviously, he chose not to do that. “
“I will listen to the arguments on both sides and make the decision that I think is right,” he added.
While there are some questions about possible voices for Republican condemnation, Democrats seem to be broadly united on this issue. Senator Chris Murphy (D-CT) summed up the Democrats’ reasoning on Sunday, defending the process as something not only allowed but required by the Constitution.
“There is a clear precedent for the Senate to continue the impeachment process once articles have been sent to it, even after an officer has resigned. So my analysis begins and ends here with my constitutional responsibility, so to speak,” he said on Sunday Fox News.
“Impeachment involves not only removing an officer from office, but also removing him from office,” Murphy said.
Murphy also noted that there are still some big questions about how the trial is going to be carried out – including whether or not witnesses will be called in. Since the uprising was public, calling witnesses is not as necessary as during Trump’s first Senate impeachment trial, but “when the house [impeachment] Managers want to call witnesses, I think we should allow them to do that. ”
A general point of agreement between the two parties is that both Democrats and Republicans want the process – which begins Tuesday – to be quick. Republicans will prefer a short shrift as a damage control measure to reduce public discussion of Trump’s behavior. Democrats, on the other hand, have an ambitious legislative agenda and schedule for appointing candidates and cannot afford to entangle Senators in impeachment proceedings for too long without slowing them down.
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