The bar to impeach is relatively low as it only requires a majority vote in the House of Representatives. However, the bar for removal is extraordinary — requiring a two-thirds vote in the Senate. Given the extreme nature of the process, it is understandable that the Framers made it so difficult. Of the 20 federal officials to be impeached, eight have been removed from office.
In spite of the strong words by many Republicans in the Senate, few believe that Trump will be convicted. In a telling sign, 45 Republican senators voted on a motion to hold a vote to dismiss the trial before it even began on the grounds that impeachment no longer applied to Trump as he no longer holds office.
Likewise, it has been reported that Senator Lindsey Graham personally recommended legal counsel for Trump’s impeachment defense. It would be unimaginable that a member of a jury would recommend attorneys for a defendant in a trial. Then again, we might recall that in Trump’s first impeachment Graham stated, “I will do everything I can to make impeachment die quickly.” And then Senate Majority Leader Mitch McConnell stated that he would “not be an impartial juror.”
Such pronouncements are pretty far afield from the arguments set forth by the Framers of the Constitution when they were considering the impeachment process. Rightly recognizing that impeachment would divide the country into “parties more or less friendly or inimical to the accused,” the Framers gave the power to impeach to the House, but reserved the power of removal to the Senate on the grounds that it would be “sufficiently independent” to render a fair trial.
The Senate of today reveals the impotence of the impeachment process when it comes to the presidency. The party of the accused matters quite a bit to senators. In fact, in the previous three presidential impeachments, Mitt Romney was the only Senator to cross party lines to vote against his own party’s president.
Indeed, Senate proceedings have been dominated by partisanship. This is why prior to Trump’s first Senate trial I argued that holding a secret vote would be consistent with the Framers’ intentions regarding impeachment. I also recognized that doing so would run counter to the transparency expected of our leaders today.
In Federalist 65, Alexander Hamilton stated that the Senate would be the appropriate place to try impeachments because it would have the confidence “in its own situation to preserve, unawed and uninfluenced, the necessary impartiality” to produce a fair trial. Yet, what Hamilton envisioned is very different from what materialized. Hamilton’s Senate was not one dominated by two parties nor was it one that was directly elected by the citizenry. These two changes have made the institution far more likely to take public opinion into account and therefore less likely to approach the impeachment process in an impartial fashion.
Nonetheless, the Framers believed the impeachment process was a necessary tool to hold federal officials accountable. Hamilton argued that impeachment would be a process to hold the “misconduct of public men” accountable for the “abuse or violation of some public trust.” The House voted to impeach Trump on the charge of inciting the insurrection that led to the interruption of the January 6 counting of the Electoral College vote, which also resulted in multiple deaths, numerous injuries, and the destruction of federal property.
In the House vote on the article of impeachment, 10 Republicans joined Democrats to vote in favor of Trump’s impeachment. Most notable was the vote by Liz Cheney, the third-ranking Republican in the House and the daughter of former Vice President Dick Cheney. In explaining her vote for impeachment, she stated: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” These are incredibly strong words from a leader within the President’s own party and it is worthwhile revisiting what led her to this conclusion.
On January 6, President Trump spoke at the “Save America” rally to thousands of supporters who were dedicated to “stopping the steal.” He used the words “fight” or “fighting” at least 20 times, indicated that the election was rigged or stolen multiple times and said that if “Mike Pence does the right thing, we win this election… All Vice-President Pence has to do is send it back to the States to recertify, and we become president, and you are the happiest people.” Hours later, rioters who breached the US Capitol Building could be heard shouting: “Hang Mike Pence.” This gets at the heart of the article of impeachment against Trump — that he is responsible for instigating the insurrection.
Ultimately, 147 House Republicans voted to not certify the results of the election. And although Cheney drew the ire of many of Trump’s most ardent supporters, almost the same number (145) of House Republicans voted to keep her in her leadership position last week. Notably, the vote to certify the election result was held in public while the vote on Cheney’s position was done by a secret ballot. This suggests the public signaling done by many Representatives may be very different than what they believe in private. It also suggests a secret vote on Trump’s impeachment would have a very different outcome than what we are likely to see.
So, where does this leave us? Is the bar for removal of a president so high that we are unlikely to ever see it happen? If so, does this suggest that the electoral process is the only means to hold presidents accountable? Perhaps not.
Under the current circumstance, some are proposing to hold Trump accountable through the use of the 14th Amendment. Originally intended to disqualify Civil War dissidents, Section 3 bars anyone who has “engaged in insurrection or rebellion” against the United States from holding public office. Democrat Virginia Senator Tim Kaine has floated this as a means to hold Trump accountable without relying on the 66-vote threshold needed for an impeachment conviction in the Senate. Still, many senators would likely be uncomfortable barring an individual from future office with a simple majority vote. And even if this is an available tactic in this instance, it would likely not apply in future cases of impeachment.
One other potential option is the use of censure. Censure is a formal condemnation of a public official’s behavior and while it does not carry the weight of impeachment it does send a strong signal of disapproval from the legislative branch. It would not require a two-thirds majority but would still likely require a measure of bipartisan support — which would serve to malign a sitting president (or in this case, a former president).
Like impeachment, it is rarely used and has only been used once on a president — Andrew Jackson in 1834. It was such an ignominious badge that Jackson’s supporters fought to have it expunged, and three years later it was. It is not hard to imagine a similar outcome unfolding if the Senate were to seek to censure Trump.
History has shown us that it is very difficult to hold presidents accountable outside of the electoral process and yet President James Madison contended that impeachment was “indispensable … for defending the community (against) the incapacity, negligence or perfidy of the chief Magistrate.” More pointedly, George Mason asked: “Shall any man be above Justice?”
When it comes to impeachments of presidents, political considerations have largely triumphed over legal considerations. In 1970, then Rep. Gerald Ford stated that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” While Ford may have been right in the sense that the House has the ability to impeach virtually at will, history has shown that the removal of a president as a result of impeachment is very unlikely.
t is hard to imagine the events of January 6 occurring without Trump’s encouragement. It is also hard to imagine what it would take then for a Senate to remove a president from office — or in this case bar a president from holding future elective office — if that action is not taken as a result of this trial.
The Framers certainly did not knock every decision they made out of the park. The institutions envisioned by the Framers have changed quite a bit and as a consequence, it is unlikely any president will ever be removed from office. While imperfect, apart from the electoral process, censure may be the very best those looking for presidential accountability may ever receive.
Read the original article on cnn