Trump impeachment: Outcome may be foregone conclusion, but impact isn’t

At a time when many are invoking lofty ideals and the Founding Fathers as justification either for or against impeachment proceedings, Democratic Sen. Amy Klobuchar favors a line from comedian Trevor Noah.

“If you get fired at Best Buy, they don’t just let you steal a TV on the way out,” she says, pushing back against the Republican argument that it’s overreach to hold an impeachment trial for a president who has already left office.

The House of Representatives impeached President Donald Trump with one week remaining in his term, charging him with inciting an insurrection on Jan. 6 by falsely claiming at a rally outside the White House that he won “by a landslide” and encouraging his supporters to go to the U.S. Capitol, where lawmakers were meeting to tally the Electoral College votes showing that Joe Biden had won. The charge cites Mr. Trump saying at the rally, “if you don’t fight like hell, you’re not going to have a country anymore.”

A month later, as the Senate began its trial on Tuesday, all but five GOP senators had indicated they see the proceedings against an ex-president as unconstitutional. In a vote Tuesday night on whether a trial would be constitutional, a sixth, Sen. Bill Cassidy of Louisiana, added his support. Still, that group of half a dozen GOP senators is far short of the 17 Republicans whose support Senate Democrats would need to convict Mr. Trump – leading some to ask what’s the point of going forward, when so many other weighty issues await legislators’ attention, including COVID-19 relief. (Editor's note: This paragraph was updated to reflect Senator Cassidy’s vote Tuesday night.)

“We have a constitutional obligation to take on these articles of impeachment. They came to us; we can’t shirk our duty,” responds Senator Klobuchar, a former prosecutor from Minnesota. “Secondly, there’s history. ... You have to have a historical record of what happened and hold the person that incited [the violence] accountable.”

Democrats insist there is a moral imperative to establish clear consequences for incitement, and they say impeachment proceedings are the appropriate way to protect American democracy against similar attacks in the future. Republicans warn against turning a mechanism of last resort into a partisan tool that’s being wielded more and more frequently and hastily.

Senate Television/AP

In this image from video, House impeachment manager Rep. Joe Neguse, a Democrat from Colorado, prepares to speak during the second impeachment trial of former President Donald Trump in the Senate at the U.S. Capitol in Washington, Feb. 9, 2021.

Some also question whether a trial that may last a week and rely mainly on video evidence rather than in-person testimony is the most effective way to establish a comprehensive accounting of the day’s events, including the influence of Mr. Trump’s words on those who spearheaded the Jan. 6 siege on the Capitol. Republicans, some of whom remain concerned that a rapid spike in mail-in voting and last-minute changes in election administration led to election irregularities, despite a lack of evidence supporting those claims, also criticize Democrats’ push for impeachment as needlessly vindictive. 

“I don’t think there is any meaningful purpose other than exercising the partisan anger Democrats have towards President Trump,” says Sen. Ted Cruz, a Texas Republican who has felt that anger himself after Democrats blamed him for contributing to the Jan. 6 melee by calling for a 10-day election integrity audit before certifying the results of the Electoral College in key battleground states that Mr. Trump lost. “We have enormous challenges in this country, including a global pandemic and tens of millions of Americans out of work. And congressional Democrats are more interested in venting their partisan rage than providing meaningful solutions to those crises.” 

Some on both sides of the aisle believe the exercise could help Mr. Trump rebound politically and possibly stage a comeback in 2024.

“I think it’s going to backfire on the Democrats,” says Sen. Joni Ernst, an Iowa Republican, citing Mr. Biden’s promise to be a president for all Americans. “This is not going to bring unity.”

But New Jersey Sen. Cory Booker, whose presidential campaign – like Mr. Biden’s – was replete with exhortations to unity, says there have been times in American history when the right thing to do was unpopular or even divisive, like ending miscegenation laws that prohibited interracial marriage.

“Look, unity around issues that speak to the moral imagination of this country is what we want,” says Senator Booker. “It’s very hard to find justice in this country without confronting often very difficult topics that sometimes do divide.”

“This Capitol was attacked,” he continues, pausing in one of the same basement corridors through which senators were hurriedly evacuated after hundreds of Trump supporters entered the building, shattering windows and doors, attacking police, and chanting things like “Where’s Nancy [Pelosi]?” and “Hang Pence!”

“Right now, where we are standing is a crime zone. People died. And we have to address that.”

Trial opens with arguments over constitutionality

The impeachment trial opened Tuesday with a prayer from the Senate chaplain, Barry C. Black, who invoked the words of New England poet James Russell Lowell: “Once to every man and nation comes the moment to decide / In the strife of Truth with Falsehood, for the good or evil side.”

Then began hours of arguments over whether a Senate impeachment trial of a former president is constitutional. Rep. Jamie Raskin, a Maryland Democrat, led the House prosecution team’s opening presentation, which included a video montage of snippets from Mr. Trump’s Jan. 6 rally and scenes of rioters breaking into the Capitol and attacking police with obscenities and physical force. His team also drew on historical examples to bolster their claim that former federal officials are not exempt from an impeachment trial. They noted that all of the impeachments that occurred during the framers’ lifetimes were of former officials, and the most famous of those cases – which was unfolding as they met for the Constitutional Convention in Philadelphia – involved Warren Hastings, the former governor general of the British colony of Bengal, who had been out of office for two years.

Representative Raskin, who recently lost his son to suicide, concluded the presentation on a personal note. As he shared the experience of bringing his daughter and son-in-law to the Capitol on Jan. 6, a day after burying his son, only to be separated from them during the violence, the chamber grew still as senators on both sides of the aisle gave him their attention and respect. During a break, GOP Sen. Tom Cotton of Arkansas came up to Mr. Raskin and spoke with him for a couple of minutes, patting Mr. Raskin on the arm in a gesture of compassion as their conversation wrapped up.

Republican senators and even Mr. Trump’s lead counsel, Bruce Castor Jr., praised Mr. Raskin and his team for a strong presentation, in contrast with last year’s impeachment trial. But Mr. Trump’s defense team, while denouncing the violence on Jan. 6 and calling for prosecuting those involved to the fullest extent possible, went on to argue against proceeding with the trial. They depicted the trial as an unconstitutional pursuit hijacked by partisan passions. Attorney David Schoen called out what he characterized as congressional Democrats’ “insatiable lust for impeachment” over the past four years, showing a montage of his own going back to 2017 with clips of lawmakers from Rep. Maxine Waters to Sen. Elizabeth Warren and Senator Booker.

At the end of several hours of arguments, the Senate voted 56-44 to proceed with the trial, deeming it constitutional.

No impeached president ever removed from office

The House of Representatives has launched impeachment proceedings against four presidents in American history: Andrew Johnson in 1868, Richard Nixon in 1974, Bill Clinton in 1998, and Mr. Trump in 2020 and again this year. Mr. Nixon resigned before the full House voted on impeachment, and none of the other three were removed by a Senate conviction, which requires a two-thirds majority. But as former GOP speechwriter David Frum points out in a recent article for The Atlantic, there were “seismic political consequences” in each case. 

While impeachment proceedings echo legal proceedings, they are also an inherently political exercise. There is no established standard of evidence required to convict. The jurors are senators, sworn to be impartial but elected by – and accountable to – their constituents. The trial is held not in a courtroom with strict rules on what can be transmitted to the public, but in the Senate, televised for the nation to see.

With such a stage, impeachment proceedings can influence public thought in a way a court case rarely does. And this may be a key rationale for the Democrats to press forward even if a conviction is unlikely. 

“We think that every American should be aware of what happened – that the reason he was impeached by the House, and the reason he should be convicted and disqualified from holding future federal office, is to make sure that such an attack on our democracy and Constitution never happens again,” Representative Raskin told The New York Times. 

Alternative ways of holding Trump accountable

If the Senate were to convict Mr. Trump, it could then hold a subsequent vote that would bar him from running for federal office. If there is no conviction, however, some worry that could render impeachment an impotent tool.

“Not having consequences would be horrible,” says Sen. Tim Kaine, a Virginia Democrat, who has a backup option in his pocket: a censure resolution that would require only 60 votes instead of 67. The resolution, which he worked on together with GOP Sen. Susan Collins of Maine, is based on Section 3 of the 14th Amendment, which prohibits from federal office anyone who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

“Impeachment would be historic, but so would using a Civil War-era insurrection statute against the president of the United States,” he told reporters Monday night. 

Although the resolution is on the back burner for now, he says it could still provide an alternative path, depending on the outcome of the impeachment proceedings. 

“We might get into the trial and some Republicans could see evidence that would make them think, ‘We gotta do something,’ and some Democrats could say, ‘Do we really want to see another acquittal?’”

Another option would be a criminal trial, which centrist Democrat Joe Manchin believes would be more effective than impeachment. 

“People look at this as a political trial,” he says, before exiting the Senate Monday night near where workers had spent the day repairing some windows shattered in the Jan. 6 siege. Still, he adds, “If there was ever a reason for the articles of impeachment, this was it.”