Report: Senate Republicans Negotiating Terms of Unconstitutional Post-Departure Trump Impeachment Trial
There’s nothing to negotiate. The trial would be unconstitutional and illegitimate. It doesn’t matter what you think of Trump, the Capitol Hill riot, or the election.
The Democrats plan to put Donald Trump on trial even though he no longer is in office. It’s plainly unconstitutional, for reasons explained in prior posts:
- Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office
- Impeachment Problem? Chief Justice Roberts May Not Have Constitutional Authority To Preside At Trial Of FORMER President
The arguments in favor of a post-departure Senate trial are convoluted, whereas the argument against simply looks at the text of the Constitution. There are arguments that in a small number of non-presidential cases the Senate attempted a post-departure impeachment trial, but those instances are not really on point, and in any event, because the Senate on a small number of prior occasions may have unconstitutionally grabbed power does not justify doing again here.
The NY Times reports that Senate Republicans are negotiating the terms of this unconstitutional trial:
Senator Mitch McConnell of Kentucky, the Republican leader, told senators on Thursday that he planned to ask Democrats to delay the start of former President Donald J. Trump’s impeachment trial until early February to allow Mr. Trump’s legal team time to prepare a defense, according to a person familiar with his remarks.
The proposal emerged as Mr. McConnell and Senator Chuck Schumer, Democrat of New York and the incoming majority leader, haggled privately behind the scenes over the timing and structure of the proceeding and Speaker Nancy Pelosi refused again to say when she would transmit the impeachment charge to the Senate, thus prompting the start of the trial….
Once a trial gets underway, lawmakers in both chambers agree it should move quickly. Still bitter over the length and repetition of last year’s trial of Mr. Trump, senators were closing in on rules that would compress the meat of the trial into just three days of oral presentations, with the prosecution and defense each getting up to 12 hours to make their case, people involved in planning said. When the Senate tried Mr. Trump a year ago, each side had up to 24 hours.
Ceremonial requirements, deliberations and votes would add several additional days, but the trial could be the speediest presidential impeachment trial in history.
Still, the timeline could balloon if either the House managers or Mr. Trump’s defense team asked to call witnesses. On Thursday, Senator Lindsey Graham of South Carolina said on a conference call with Republican senators that Mr. Trump had hired a lawyer, Butch Bowers, according to a person on the call.
There’s nothing to negotiate. The trial would be unconstitutional and illegitimate, regardless of when it starts or how long it takes. It doesn’t matter what you think of Trump, the Capitol Hill riot, or the election.
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The trial would be unconstitutional and illegitimate.
I’m afraid they don’t care about the constitution or legitimacy. In fact, accomplishing the impeachment while it is clearly illegitimate and unconstitutional, is rather the point. They are no longer constrained.
Correct. The only check on the power of every useless jackass in DC is gone. Now they say – let the party begin.
I wish this country had enough people to counter the corruption, the morons, the fools, etc.
I may have down voted you accidently…Sorry! The RINO’s don’t understand. They screw my president for four years and then beg me for money. Fat chance morons.
This is nothing more than one person’s opinion, I think Trump should look forward to the unconstitutional senate trial. It will give him a national stage to present the election fraud evidence that no court would allow to be presented. Regardless of how senate democrats and their republicrat allies eventually vote, Trump could blow this up in their faces. In fact the more successful he is, the more likely they’d vote against him out of anger and spite. As far as damage to Trump, an unconstitutional senate trial will mean nothing beyond what can be spun by a press already drowning in its own hatred of the man.
They aren’t going to allow him a legitimate and legal defense
The trial’s purpose is to ensure that we flyover country chumps never elect a president like Trump again. Clearly, Mitch, Nancy, and Chuck are still scared to death of Trump, so they want to crush him, little knowing they can’t. We all see right through them.
He’s known as Vichy Mitchy for a reason.
I do not think he can stop it at this point in any event. The Democrat party is in control. I take umbrage at his comments, but perhaps he is drawing the Democrats to over play their hand in attacking Trump, the Republican party, and the Republican electorate. The Democrats appear unhinged. Maybe he just wants to showcase it. Sacrifice Trump to do it? Perhaps, but I do not think the Democrats will get near enough votes to impeach a president who is no longer president. This will just come across as vicious, unhinged, extremist, and alarming, and get the base rallied around congressional leadership – shine the spot light on some new leaders who are defending the president – or at least, perhaps that’s the goal.
Or maybe he is that stupid and thinks there is merit in this action.
I do wish everyone would stop starting these dumpster fires and tale a deep breath. It does not look like that will happen, however.
I think your first paragraph gives too much credit where it is undue.
We can only dream there is a plan. Usually, however, there is no plan, and my dreams turn into nightmares.
See my reply to BuckIV and Colonel Travis.
McConnell could rally the Republicans to get them all to vote against, with the usual exceptions like Romney, so the Dems know it’s doomed and won’t get 2/3. That could stop it.
Instead McConnell acts to legitimize it.
It’s like he wants to do as much evil as possible. Anyway now we see the true character of our government, all three branches. They can all go to hell.
And it’s good for us to know this. It’s better than when they were able to hide. Expose the ugly truths!
Vicious, unhinged, extremist, and alarming you say? So it’s just another day ending in “y” for the DNC.
Geez Brave Sir Robin, can you be any blinder?
The GOPe hates Donald Trump because Donald Trump is a true American, dedicated to the American people. McConnell is the leader of the GOPe. Every thing they do, everything, is designed to destroy the Americans that supported Trumps attempt to return us a time of prosperity for Americans.
They want to save their butts more than anything else. Cowards all. That’s why they lie to you 6 months before each and every election.
So, clearly, going after trump would be political suicide, or so I would think.
They cannot stop this train wreck, so maybe they intend to encourage the Democrats to act like, well, they always act.
Again, just a thought. Maybe and probably a stupid thought. But tossed out there for discussion.
The best defense are Republicans refusing to participate. They are fools to go along with the Democrats on this.
No, they’re rats. They hate us as much as they hate Trump.
We need to shoe our power and destroy the GOP. Totally destroy it.
There is no reform possible. The GOP must be destroyed, there is nothing worth saving, nothing. Kill it and start over.
A Trial in the Senate gives President Trump the opportunity to present refute charge #3 in Court. They said he lied about election fraud. He can now present his evidence in detail. This could drag on for a month.
Let’s go for a full trial. Not a short one.
I like it. If they’re gonna do this, let’s do it right.
There is the Constitution Party. So far they are only active in a few states but, the party platform is exactly what is lacking from GOP. With enough participation by all that have had their fill of the GOP, the Constitution Party could easily go national. I’ve tried posting a link on other sites but their contracted moderators all flagged it. Simply search the Constitution Party.
Mitch McConnell has always been a utterly worthless POS RINO !
These people are delusional if they think they will survive politically if they continue to betray PDJT.
I’d say we’re past that point already. Mitch is old and just got reelected for 6 more years, apparently with Dominion’s help. He no longer bothers to appeal to the public, but to his sponsor.
Sounds like it should be fairly easy to get a judicial injunction against the trial proceeding. To do it right, a Hawaiian judge would be ideal.
It’s impossible. Even if you got a purported order, it would be of o effect. The legislature does not take orders from the judiciary.
Disagree. The Judiciary regularly decides disputes between the Executive and Legislative branches, which is what this clearly is.
First of all, no, it isn’t, because the Executive is Joe Biden.
Second, the judiciary cannot give orders to the legislature. Ever. It cannot enjoin the legislature from doing anything, or order it to do anything. The legislature simply does not take orders.
Milhouse, the executive is a branch of government, not an individual.
Second, you couldn’t be more wrong about the limits to judicial power. The judiciary can’t tell the legislature what laws to enact. But it plan can perform the judicial role in disputes involving the Constitution. If it can rule laws passed by the legislature unconstitutional, it can plainly also rule acts take by the legislature in outright defiance of a specific constitutional provision unconstitutional.
What the hell have you been smoking?
Milhouse’s comment is narrower than others perceive. He’s focused on the question of whether the Court would affirmatively enjoin the Senate. I think that question is unanswered in the abstract, but I could foresee only very narrow instances in which it might arise. The paradigm case is Powell v. McCormack, where the court sidestepped it and issued declaratory relief, which it correctly viewed as dispositive. (What would happen if the House affirmatively refused to follow Powell? Would the Court attempt a coercive order? Or would it merely be the proverbial “constitutional crisis”? Unclear.)
But in this case, like Powell, declaratory relief is all that would be required. If the Court were to rule that the Senate lacked jurisdiction due to the Article II limit, it would effectively declare that the Senate proceeding has no legal effect. At which point, it would no longer matter.
Um…Ok, this was half tongue-in-cheek and half what Publius said (only he said it much better than I could)
In short, the court could declare that the Senate doesn’t have the authority to conduct an impeachment of an EX-President, i.e. one who is no longer in office. Since he’s no longer protected by executive priv, he’s subject to the Judicial branch just like everybody else, and just like everybody else, the Senate can’t pick him out specifically to punish. If they believe he’s committed a crime, they can investigate through committees, they can subpoena witnesses, they can grant immunity for testimony, and then take their ball of fail and submit it to the AG, where hopefully it receives all the attention a ball of dung deserves.
You are wrong again! In the 1980s a Federal judge ordered a kansas legislature to appropriate funds to build a swimming pool in a black high school
THat is completely wrong. The constitution is clear: the “executive branch” is the president and only the president. Nobody else. Everyone who works in that branch is his employee and agent, doing his work. The vice president is not in the executive branch (this is something Biden bullshitted about at his debate with Palin).
The judiciary can say that what the legislature has done is unconstitutional, but the legislature is free to reject that opinion. The judiciary cannot ever order the legislature to do something or not to do something. Under any circumstances.
Thus it cannot enjoin a senate trial. It has no authority to do that. Even if it believes and declares that the trial is unconstitutional it cannot enjoin it. The senate can hold its trial, and if someone won’t come the senate can send its own forces to arrest them and bring them by force, and there is nothing the judiciary can do about it.
Sigh. Are you really that stupid? Or are you just stupid enough to think that you can put that past me? Note the key words: Federal judge, and state legislature. State legislatures of course must obey federal law, and are subject to the federal judiciary. They are not equal branches.
They are equal with their state’s judiciary, and do not (or should not) take orders from it; if they do they’re not only foolish and ignorant but are undermining their own institution.
Which kangaroo court do you propose will do that?
The judiciary is reluctant to mediate between executive and legislative branches, because they are not below it, but coequal to it.
They stepped into Bush v. Gore. Then they refused to get involved in the recent elections when everyone expected them to do so. So they apparently express this reluctance when they feel it’s convenient.
But with few exceptions, they do stay out. And if they stepped in, would the other branches listen? An open question. Somehow everyone listened in Bush v. Gore. But now I suspect people would just spit at them.
Bush v Gore was not a dispute between the other two branches of government. It was a dispute between two candidates for office, and a state court that gave an illegal order in favor of one of them.
Except that this isn’t a conflict between the executive and legislature branches. It’s between the legislature and a private citizen.
Milhouse is correct. But mot for the reasons he gives.
Trump was a sitting President when the House impeached him, this month. Therefor, whether the impeachment was warranted or not, it was constitutional. Now, under the Constitution, the Senate has to take up and dispose of the articles of impeachment, unless they are withdrawn, prior to being presented to the Senate. So, if the House presents the articles of impeachment to the Senate, then the Senate has to dispose of them. And, it would be constitutional for the Senate to do so and the courts could not intervene. What would not be constitutional would be any attempt to penalize Trump. I explained in a previous thread how the language of the Constitution allows only the removal of the official from office AND barring him from holding future office. However, the second penalty can only be applied if h is removed from office by the Senate. And, as he no longer holds office, the Senate can not remove him from any office. Therefor it can not, constitutionally, impose a ban on his holding future office. By the way, Alan Dershowitz agrees with me on this. If the Senate attempted to impose any penalty, at this point, then the courts could get involved and they should rule that any penalty would be unconstitutional.
Can you also explain the role of Chief Justice in this process and does he do anything to affect the trial?
Under John Roberts, the role of the chief justice is to do whatever the hell he’s told to do by the people holding the many images and video of roberts frolicking on Epstein’s pedo island.
Someone here can blather on about legal technicalities, but I just gave you the real answer.
Article I Section 3, of the Constitution reads as follows:
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:”
If the impeachment trial is of a sitting President, then the Chief Justice becomes the presiding officer of the Senate. This to reduce partisanship. Essentially he manages the trial proceedings as any other trial judge would.
Now, as the President would NOT be on trial, in this case Trump already having left office, it is not clear if the Chief Justice of the SCOTUS would be required to preside.
The impeachment was constitutional, but Derschowiz and Jonathan Turley have both said the trial would be unconstitutional, being a bill of attainder.
SCOTUS often reviews acts of Congress for constitutionality. The text is plainly in the Constitution. If SCOTUS does not have jurisdiction then the prohibitions on ex post facto laws and bills of attainder are essentially ineffective, and implies that SCOTUS has jurisdiction.
Of course that does not mean SCOTUS won’t find some lame excuse not to take it.
Don’t forget, SCOTUS’ accustomed role of “judicial review” is on very thin ice. It’s a power that SCOTUS claimed for itself in Marbury v. Madison; you won’t find anything like it in the Constitution, nor has there been an amendment in the over 200 years since MvM to give them that power.
So they probably try to avoid that thin patch, for fear someone raises the question fundamentally. Which someone should anyway. To hell with judicial review. They’ve just shown they only take cases when they feel like it, even when the case is ripe and indeed urgent. Such a capricious ruler needs to be dethroned.
Professor Jacobson, care to comment? I think this is the major plan for the Dems, that they are continuing this show so that they can claim Trump can no longer be even considered for President if he were to run again. Plus the Dems want to sanction Trump anyway possible. Could they use this as an excuse to remove his post presidency secret service protection?
Every time I think ‘nah, the RINOs can’t ACTUALLY be this fucking stupid and out of touch’, morons like Bitch McConnell do their best to prove me wrong.
“When the English revolutionary [Cromwell] who helped to overthrow the monarchy and sign the death warrant for King Charles I died in 1658, he was embalmed and buried with honor inside Westminster Abbey. Three years later, however, the monarchy returned and Cromwell was treated much differently. King Charles II exhumed Cromwell’s body on the twelfth anniversary of his father’s execution and in retribution for the regicide staged an execution of his own—albeit with Cromwell’s dead body. The Lord Protector’s corpse was strung up on display, beheaded and dumped into a vast London pit. Cromwell’s head was mounted on a pike on the roof of Westminster Hall, where it remained for decades as a warning to would-be revolutionaries. The head eventually became a collector piece and in 1960 was interred at Cromwell’s alma mater, Sidney Sussex College in Cambridge.”
How Trump can be convicted in an impeachment trial and then removed from an office he no longer holds is something only understandable by vendetta-bound Democrats.
Considering the Supreme Court’s recent record, the dems may believe they can get away with it. They just might.
Pope Formosus was tried posthumously, with his exhumed corpse in the dock.
After Pol Pot’s death, some in Cambodia wanted his corpse put on trial.
and vendetta-bound Republicans.
all these legal scholars wringing hands–isn’t it self-evident?–the junta doesn’t give a damn about the constitution(and neither does scotus)–they’re going to do what they want(or have been told to do)–and beware to all who oppose them
I am waiting to see if Trump wants to start a 3rd party.
The impeachment situation is slowing everything down.
What is to keep barbarian pelosi from holding it until 2022 or 2023?
With reference to the GOP, the turtle evidently didn’t want to keep control of the senate, so I won’t be surprised he doesn’t want to keep voters in the gop. Easy come, easy go, as far as he’s concerned.
He’s got his $$ from China coming in; what more can a man & his wife and in-laws want in life?
To me, the ultimate goal is to convict and then vote to deny PDT the opportunity to run again for federal office. They can’t stand the idea of him running for President again and WINNING!
I believe the trial will be constitutional, but I cannot believe there will be 17 Republican votes to convict. But even if convicted, I don’t believe the senate has the power to bar him from elected office. It can only bar a future president from appointing him to something, and there’s little chance that would ever happen anyway.
Whatever we believe, here’s the deal: If 17 Republicans vote to convict, he’s convicted. From there, it takes only a simple majority to pass sentence, and this does very much include precluding him from holding future office (obviously, all Republicans would vote against this, including those who voted to convict and made such a sentence possible–they really think we’re complete idiots). Any GOP sen who votes to convict knows this, obviously, and we should all take note.
No, it does not include barring him from future elected office, no matter what the Democrats claim it does. The constitution does not give the senate the authority to bar someone from elected office.
Of course it does. From Article 1, Section 3: “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
There is an argument to be made about impeaching a president who is no longer in office, but the Constitution is very clear that punishment in cases of impeachment includes, and cannot extend further than, “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” So, yeah, they most certainly can vote for this punishment, and they need only a simple majority to do it. That is why the vote to convict–requiring 2/3 of the Senate, so 17 GOP Sens–is most important in terms of watching this play out.
I suspect that Milhouse is making the argument that the “any office” reference in the Article I penalty clause has to be interpreted to exclude the President and Vice-President because the use of the “Officer” term in Article II is separate from the elected positions: “The President, Vice President and all civil Officers of the United States, shall be removed from Office… .”
This is consistent with the manner in which the Senate has approached impeachment of Senators in the past, starting with the Blount impeachment. And it is consistent with the basic theme of Powell v. McCormack, namely that the Congress lacks constitution authority to exclude someone duly elected by the States or people other than for specific qualifications set forth in the Constitution.
I haven’t researched the history specifically, but I would judge it to be a close call, and I would probably lean towards exclusion being constitutional based on what I recall of the original Convention arguments.
Fuzzy, throughout the constitution “office under the united states” or “officer of the united states” means someone who is appointed by the president. Elected positions are not “offices” wherever that term is used. If the senate convicts Trump it can bar future presidents from appointing him to some position. It cannot bar him from running and being elected to any position, including the presidency.
I’ll take your word for it, Milhouse, but it seems that this would be a big problem in terms of the argument that the president should be able to choose whomever s/he/it wants to serve in their administration. That’s not an argument I feel strongly about these days, but for those who do, this seems to limit/harm a future president more than it would Trump. Not that Trump is going to be jumping at the chance to be a Cabinet member of someone else’s administration. Few people who have held the presidency are content to take a lesser position (and yes, my friend, I do know it has happened, with presidents going on to serve in the Senate or whatever), but I don’t see that level of humility in Trump.
We’ll see how it all plays out soon enough. I’m finding this whole days-long discussion exhausting and pointless. Some things are fun for about a minute and then they just get repetitive and useless. At this point, we can all just copy and paste our prior comments in response to others’ copied and pasted comments ad infinitum. Sigh.
Darn, fumble fingered the intended upvote. Sorry
One example to support your point—Alcee Hastings, a crooked judge who was impeached and now serves as a Representative from some corrupt district in Florida. Clearly the impeachment did not bar Hastings from being elected.
OTOH, were Donald Trump to run again in 2024 he would almost certainly have to file lawsuits in many states to force himself onto the ballot.
I am glad you are still here at LI. I went to Parler to follow you.
At this point, I really do not care if Republicans in the Senate vote to convict Trump. I have no plans to ever cast a vote for any Republican, and I certainly will never vote for a Democrat.
I am taking my toys home, and pray every day that the Democrats so destroy this country that they cause an uproar. I want millions of illegals here in this country to be given citizenship. I want them to be given the ability to vote. I want them to make the Republican Party as vast as they are in California.
I want millions of illegals to come to this country, and would pay to help the current caravans to make their way here. I would donate food, transportation, and housing all the way through Mexico. I want them to put Americans out of work. I want mass poverty. I want MS 13 criminals on the streets creating havoc.
I pray that Antifa and BLM burn cities to the ground. I wish for increase murder rates in Chicago, Baltimore, Atlanta, New York, and other cities. Rape for everyone!
Free college, massive debt that bankrupts this nation. Increased taxes that give money to the lame, limp, and lazy. Fear on the streets.
And then logic gets the better of me, and I wouldn’t wish this on anyone.
… and then I wake up, shaking and covered in sweat, and forcefully exhale in a whispered tone, “Thank God it was only a nightmare!”
Biden’s plans to “fight global warming” will destroy our country all by itself. Every major industry that uses electricity will be put out of business. Everything that people buy will greatly increase in cost and huge inflation will be the result. Economic disaster will be the result.
Aw, thanks! Hopefully, we’ll be back on Parler or on something before too long! 🙂
Yes, they do think we’re complete idiots. They will give the democrats in the Senate the 17 votes then need to find Trump guilty of the impeachment charge. They’ll give the democrats the votes necessary to impose punishment. And they’ll do it without comment or complaint as they know full well that they may be the next person on the democrat chopping block if they oppose this illegal impeachment proceeding. So at this point, it’s a given that Trump will be found guilty and he will be barred from any office of honor, trust or profit under the United States. That’s the whole point of this second impeachment circus. To make sure Trump can no longer cause problems for those democrats and republicans in power.
to whomever gave me the downvote. I only speak the truth. The republicans have no spine. They’ll howl and scream in outrage over the Senate impeachment trial and then roll over and give the democrats exactly what they want. Enough votes to find Trump guilty of “inciting insurrection” and then enough votes to get the simple majority needed to punish Trump. It’s what the republicans do. They’ve never had the spine nor the balls to stand up to the democrats. Not in the past and certainly not now.
Then the follow-on would be very interesting. The R party officially loses all Trump supporters who go on to form a new party because the RNC will probably refuse to include Trump. The Freedom Party nominates Trump. Does Trump, with massive grassroots support, get on state ballots for president?
Fun to watch. Maybe not so much for Mitch & the RINOs, and their pain will provide further enjoyment.
I should clarify: in my view the legitimacy of such a bar to holding office would be very doubtful. SCOTUS would not have ruled on it, the whole impeachment was at least arguably unconstitutional, and even if SCOTUS ruled on it, they’re hated now so others (on whom SCOTUS cannot enforce its opinions) could very well flout them to see what happens.
He’s be 78 in 2024, and in the current state of the country we don’t know what it will be like here, but we know he will be 78. He’d rather have one of his children or allies doing the job anyway.
I think it’s to strip his Secret Service protection so he can be killed.
Isn’t it also unconstitutional for the senate to take up something from the last session of congress making this illegal unless congress impeaches for a third time?
Otherwise everything from a past session of congress could make it to the senate floor.
First of all, no, there is nothing in the constitution that prevents congress from taking up a bill that started its progress in the last session. The practice of starting each session with a clean slate is not required by the constitution.
Second, that practice only applies to legislation. There’s no reason an impeachment could not be continued over a session break.
But most importantly, this is not from the last session. The house impeached Trump in this session. Indeed his alleged offense happened in this session, so he couldn’t have been impeached for it earlier! So your entire question doesn’t begin.
The entire impeachement is garbage anyhow, nothing but communists being spiteful.
Yes and no.
Senate is a ‘continuing body’; it may roll over business from the previous session. It only replaces 1/3 of its members every term.
House is not a continuing body; it replaces all of its members every term (even if 95% are re-elected). It may not carry over business from the previous term
That’s been its historical practice, but there’s nothing in the constitution that says so.
In any case, this impeachment happened in this session, so the question is irrelevant.
….And THIS is why I didn’t care of the “American” Republican Party had control of the Senate.
They DON’T deserve it, period.
Yeah, sure, they were going to “logjam” President* Biden. Sure, they were.
And if Trump objects to the whole thing, Chief Injustice Roberts will dismiss his suit for lack of standing, because he’s no longer President. 😐
Something which should be done asap is to try to gather evidence from Epstein’s underage girls, If one or more finger Roberts, then he could be impeached, tried and hopefully convicted. That kind of situation might get him to spill the beans.
Sorry – with the Dems in control, being a pervert is a plus, not a disqualification.
Republican Senators will negotiate anything. They think it’s one the things that makes the senate a great institution and makes them, personally, great.
This would almost make sense if the Democrats were even capable of negotiating in good faith. The Republicans are quite insane and cannot be reasoned with on the point.
This is just not so. The text of the constitution doesn’t say what you want it to. You’re reading things into it that are not there.
Impeachment is not a procedure that the framers invented in 1788; it was a long-standing procedure at the time, and was well understood. The framers merely said how an impeachment should be conducted, specified who may be impeached, and limited the penalties that may be imposed on conviction.
Not exactly correct. While impeachment was a long common law practice in England. the framers severely restricted it, in the Constitution. In England, Parliament could not only impeach anyone, it could impose criminal penalties, such as fine and imprisonment. In the US, the Framers limited the penalty to be imposed by impeachment and conviction to only removal from office and disqualification from holding future office. We can safely assume this their intent, because the Constitution further says that, in the event that the Senate finds an impeached party guilty, that person can still be indicted, charged, tried, convicted and sentenced for criminal law violations associated with the articles of impeachment.
That is exactly what I said. So how was it not exactly correct?
Prof J’s error is in thinking that impeachment was something the framers invented, and therefore can only be understood by what the constitution has to say about it. Therefore he jumps to the conclusion that its only purpose is removal from office, and where that is impossible there cannot be an impeachment or trial.
But as you acknowledge that is not the case. Impeachment was an existing procedure that was well known and understood. All the framers did was restrict it. Its purpose was never simply removal from office; but the framers said that, and disqualification from future appointed office, are the only penalties that the senate may impose.
That’s not a definition of impeachment, it’s a restriction of the consequences. A former president can be impeached, tried, and convicted for the rest of his life, for any offense committed in office, but the framers ensured that there’s not much congress can do to him, so there’s not much point.
What you failed to clarify is that, under the US Constitution, the Congress may not legally impeach, try or convict a private citizen. Unlike impeachment under English common law, the Congress can only impeach a person currently holding high office and can only convict and impose the penalty of removal from office and disqualification to hold future office if the person still occupies high office. Once the official leaves office, the Congress has no further constitutional authority to take any action AGAINST him.
Now, under current Congressional rules, if the House presents the articles of impeachment to the Senate, the Senate has to dispose of them. But, in this case, the only real question at issue, for the Senate, is how to dispose of them. The body could vote to dismiss them, for lack of authority to hear the case, or they could vote to hear the evidence first. However, constitutionally the outcome would be the same, no conviction and no penalty imposed.
Yes, Trump will have been impeached, for life. But, just as with an indictment, this means nothing in and of itself. Whether he can be legally convicted of high crimes and misdemeanors, by the Senate, at this point, is very much up for debate. But, because of the limited authority of the Senate to impose penalties on other than a sitting official, it is doubtful that a conviction would be constitutional. And, if no penalty can be constitutionally applied, who cares, if Trump is “convicted”? It would men nothing.
Realistically, this case is now moot, except for making political hay, on the part of the Democrats.
Impeachment by definition is something that is done to public officers for their official actions, not to private individuals. I don’t believe the UK Parliament could impeach private people, or even officers for their private actions. But it could impeach former officers for their official actions, and I see no indication in the constitution that the congress can’t do the same.
The constitution doesn’t say that. You’re just assuming it. My position is that the congress’s power of impeachment is based on the English model of the time, and is thus the same as that except where the framers restricted it. They restricted it sharply, but this was not one of those restrictions.
The Senate is supposed to be the more reflective body of the Legislative branch. Less driven by the passions of the day or by the mob.
Less than 5% of Republicans in the House voted to impeach. Only 53% of the House voted to impeach. In a sham rush-to-judgement process that lasted less than a week.
It would take 67% of the Senate to convict. And 33% of Republican Senators.
If the GOP convicts Trump the Senate Republicans will have behaved far more rashly than the House Republicans after having much more time to deliberate.
And it would be the end of the GOP. I have no doubt about that. So McConnell better get over his butt hurt hissy fit soon if he truly cares at all about the future of the GOP and the country.
I see no chance whatsoever of that happening. At most there may be 5 Republican votes to convict, but not 17.
Really? Then why is Mitch negotiating the time and circumstances of the trial?
Because the senate is going to hold a trial. According to many people it has to, but whether it has to or not it is going to. So it’s important to work out how it is going to work, and make sure Trump’s rights are protected.
As Milhouse said, the Senate has to dispose of the articles of impeachment, if they are presented to them by the House. However, there is no set mechanism for this. The Dems want a show trial, in which they will revile and villainize Trump. They would probably like to secure a “conviction” as well. McConnell is offering to give them the show trial, if no action is taken to change the current filibuster rule. He is attempting to make a deal.
That kind of Senate ended with the popular election of Senators.
In case it’s not clear, I was replying to JHogan’s first paragraph.
17th Amendment was one of the worst things to happen to our republic.
That’s BS. Election by state legislatures was no less political than direct election. It just turned state legislative elections into a proxy election for senator. People would run for state legislature on the basis of whom they pledged to vote for for senator, just as people ran for elector on the basis of whom they pledged to vote for for president.
Historically, the US Congress was modeled along the lines of the British Parliament. It was to have two houses, one directly elected by the people and one “elected’ by the political peerage which controlled the states. One of the reason for this was to allow the elected leadership of each state to exercise control over the US Congress, while allowing the people to have direct representation. The 17th Amendment changed that and gave the people direct representation in both houses of Congress. not what the Farmer envisioned at all.
The “political peerage” did not control the states. The state legislatures were elected by the exact same people who elected the house of representatives. And while the framers didn’t anticipate partisan politics taking over, that happened within just a few years. By the time the 17th amendment came around state legislative elections had turned into senate elections by proxy, which is not a good thing.
The idea that senators would be more reflective and “less driven by the passions of the day” was not based on their indirect election but on their longer term.
Mitch is on a death March
I would be careful of trusting ANYTHING from the NY Times.
That said, it is obvious that McConnell and the rest of the Franz von Papen Republicans see Impeachment II as a golden opportunity to cleanse Trump from the GOP and restore the party to its usual pretend-to-oppose-socialism stance. McConnell reasons that by 2022 the Communists will have screwed up so badly that Trump supporters will come crawling back on their knees so the can vote to restore the von Papen Republicans to power.
McConnell, like other NeverTrumpers, has the mentality of a Flat Earther. Nothing will shake his faith that there was no voting fraud in 2020, and that Trump lost because he did not defer to the cosmic wisdom of the endless war opens border corporatists who now run the GOP. I think McConnell is in for the shock of his life: if you thought the 2020 election was dirty, you ain’t seen NOTHING yet! And voting fraud aside: there will be millions of Trump voters who will never vote for a Republican because of McConnell‘s and other von Papen Republicans’ sleazy behavior.
I never would have expected to say this: I hope Amy McGrath can get McConnell thrown out of the Senate. She seems to have won in Kentucky, and she deserves her day in court.
This is with no respect to Ms. McGrath whose platform is as awful as one would expect. But Mitch needs to lose his expected 6 year upcoming Senate term. And Mitch is credibly suspect of being a Chinese spy.
I’d vote for satan over McConnell, were there any difference. There’s not.
This impeachment, while it drags in Trump, is intended to warn all outsiders what can and will happen to them if they win office and try to exercise their official powers.
Look at all the trouble cast upon Trump for the past four years and now extending into a fifth year and ask yourself if you could afford the court costs, the headaches and tribulations of try to do a good job.
OT: More National Guard troops arrived today from PA; looks like the intent is to keep the military occupation of the capitol ongoing.
Couldn’t agree more. I’ve always been cynical when it comes to politics, but apparently I wasn’t cynical enough. We’ve always had politicians like Biden. People like Peter Strzok take things to a whole new level. Seeing his texts was a fascinating and frightening insight into the minds of those in power. “How DARE people vote someone like Trump into power!” It showed me that there’s a sickness that’s infected almost everyone inside the beltway. They genuinely see us as pawns on a chessboard, to the point where they’re willing to let us die in order to keep their power.
Are they draining NG from the provinces so Antifa can have free reign there?
Interesting that they’re not asking the US Attorney in DC to file criminal charges. Perhaps they know they have no evidence and they’d get laughed out of court. Criminal incitement has a very specific meaning and nothing the President Trump did or said comes even close.
The swamp dwellers want to keep DJT as far from the Presidency as possible.
Like the young man when asked about his mother in law’s remains: “Burial or cremation?” He answered: Take no chances, do both!
“There’s nothing to negotiate. The trial would be unconstitutional and illegitimate. It doesn’t matter what you think of Trump, the Capitol Hill riot, or the election.”
The past two and a half months are unconstitutional, did that stop them?
We live under the rule they are what the Democrats want them to be.
Been saying a week that DJT will be impeached, Chucky wants it, Mitch wants it, it will happen. The purging of Trump from the government has to occur so the oligarchy can continue growing and unabated.
Only question is with Never Trumper John Roberts go along with it.
President Trump did nothing wrong, but the impeachment won’t look for evidence, it will be a kangaroo court looking for a determined outcome.
First, we’ll have our free and fair trial, and then we shall hang him at sunrise.
Would a trial give Trump an opportunity to present his evidence of election rigging?
No, it wouldn’t as I would imagine the Senate would limit any evidence to the actual impeachment charge. That is, incitement of insurrection. And any attempts to introduce evidence of election fraud would be denied as not relevant by whomever is presiding over the trial.
Fine. Let the Senate be seen as refusing that evidence over and over again, on yet another technicality.
So that the Senate will go to hell where it belongs.
I had a bad feeling the moment Elaine Chao resigned. If she is so upset with Trump to resign in protest just days before his term ends, then she is as mad as a hornet. She strikes me as domineering in ordinary times. I’m guessing McConnell’s home life hasn’t been very pleasant.
That c–t chao and her scumbag husband are in the bag to the Chicomms no less than biden.
I’m glad this is coming to head now, instead of later.
The GOP is about to die (finally!) and we just might be getting real about secession.
Would you just stop with this idiotic “secession” nonsense. No state is going to try and secede from the United States. And if they do try, Biden will declare martial law, move in the troops, and stomp them flat with the military. And then we’ll have even more show trials as the instigators of secession are paraded in front of the public, found guilty and are shot for treason. It’ll be a mess. It’ll be bloody. But there is no way a state can realistically “secede” from the Union. The federal government simply can’t and won’t allow that to happen. So just stop. Stop with this nonsense now.
The resigning was OK. She didn’t want to have to vote on the 25th Amendment. The ones who were not prepared to support Trump at least resigned. And there was no way to get 2/3 of those remaining, or whatever the threshold is.
And so Pence said he would not go for the 25th — ONLY because it would fail. There’s not a noble bone in Mike Pence’s body.
Nancy went crazy and pushed through impeachment, but she would much have preferred that the 25th took care of it.
Elaine Chao did nothing as Transportation Secretary, but at least it seemed to have bought Trump cooperation from McConnell. Until we found that the SCOTUS appointees, that it was all about getting in, turned against us when it mattered.
What is Trump’s response? Does he sent a lawyer or two to argue his case in the Senate?
Including presentation of a LONG list of circumstantial-plus evidence of incompetence and/or fraud and/or collusion in certain key Democrat-dominated jurisdictions during the Presidential election process. ALL of which benefitted only one of the two candidates.
So one reaching a conclusion that the election was likely stolen is not unreasonable. Expressing that conclusion is certainly not “criminal incitement” either, for that matter.
Does the N.Y. Times and other Democrat leadership really want all this formally presented in detail to the lower-info apparent-majority of the electorate who just didn’t know or didn’t want to care?
My wife and I received letter soliciting further donations to the RNC. (I know…we’re marked for cleansing or re-education) My wife hit the ceiling on that letter. First thought was if this letter was a veiled attempt to demand loyalty to the party, but I forgot this wasn’t the Democrat Party …yet.
Impeachment is a political tool and I see this as the GOPe attempt to wash away any remaining vestige of Trump from their party. The USA is poised to see major loss of Constitutional rights under the “uniparty”. With each loss the Republican politicians and party are worth less and less.
Finally, as Frank Herbert wrote in “Dune”…he who can destroy something controls it. As Trump is turned into a martyr by the Dems and GOPe (now expanded by the likes of Tom Cotton), the Repubs are doubly vulnerable…from Trump and millions of disaffected voters including greater numbers of minorities that Trump brought into the Party. It really may not matter as I see the Repubs at the national level now happy to slurp up the excess gravy left by their permanent masters.
First tempted to throw all my solicitations in the wastebasket, I saw them as an opportunity. I doubt it will make any difference, but returning them empty or with a letter was my first thought, but then a credit card contribution of a penny occurred to me with the possibility of making it a recurring monthly contribution. Haven’t decided yet, but these solicitations are an opportunity not to be wasted, postage paid too. What’s not to like?
Back in 2009, I got donor solicitation from the RNC. It was typical “Fill the checklist on what frightens you the most about the opposition, etc.” and at the end, they asked how much you would donate to fight the above scary things?
I dutifully filled out the checklist. However, when it came to the donation section, I wrote the following:
“The instant the Republican party actually gets a backbone, and not capitulate on principles; and the instant the party stops acting like a mirror image of the Democratic party, I will donate.
Until such time, you will not get one red cent.”
Never got another donor solicitation from the RNC again.
Another impeachment just is a healing, unifying action, part of the Great National Bipartisan Recovery.
So does this mean that if the republicans ever take back the majorities in the House and Senate (not likely but could happen) they could theoretically impeach Barack Obama for his illegal shenanigans even though he’s no longer president?
Seems to me that Congress is setting a very dangerous precedent here. But I guess to the democrat party getting Trump is more important than worrying about that.
Yes. Yes, they can and should, as retaliation for Trump’s impeachment.
I should write: Although I’m waiting to see if Trump wants to start a 3rd party, I believe the better alternative is to start an Americans First caucus in the GOP.
Getting on the ballot in ALL races is just too damn hard.
Been there, done that, got a hundred T-shirts from the efforts.
The formation of a third party [really a second since the Republicans are ruled by the Democrats] is NOT an electoral gambit. Since the Democrats have perfected vote fraud and run all three branches of government, they can never be voted out.
What the new party would be is a chance to organize for whatever form of resistance to the regime comes about as they over-reach. We cannot vote our way out of this.
If you’ve had your fill of GOP search the Constitution Party. Read their platform and join. I’d post a link but so far on all of the sites where I tried to, their contracted moderators flag the link for review.
From Murder Turtle back to Swamp Critter in barely two and a half months.
There is only one alternative to Mitch being removed from Republican leadership-we need to leave the Republican Party and move forward with a new initiative. We are all beyond the fair weather party
Recommendation to congressional Republicans: In order to illustrate the idiocy of impeaching a president no longer in office, they should file impeachment on Jimmy Carter, citing his failure to rescue Americans held hostage in the US embassy in Iran. Or for whatever. Then file impeachment (again) on Bill Clinton for, what? For marrying Hilary. Maybe impeach FDR for… for hiding the truth of his health issues from Americans.
President Trump founding a new party would be a great thing. It’s clear that the GOP is good only at bowing down in total, emasculated submission and obsequious obeisance to the vile and totalitarian Dhimmi-crats.
This is in reply to JRD47, above.
Any Republican politician or citizen who aids the vile, infantile, totalitarian and vindictive Dhimmi-crats in this latest contemptible exercise of their fanatical hatred for President Trump and their totalitarian spite for all Americans who hold views at variance with Dhimmi-crat orthodoxies, should be persona non grata in conservative circles, and, voted out of office, if applicable.
I cannot believe that the Committee legal staffers haven’t explained to Mitch that the entire impeachment trial is bogus, since Trump is a private citizen. But Mitch, like Nancy, has a reason to continue with the trial, to try and forever denigrate Trump’s name with the Capitol Antifa-led riots, and to ensure that we never again have flyover country chumps elect a President.
That is your opinion. Maybe they haven’t “explained” it is because they don’t believe it’s true. The constitution’s text does not support it, and neither does the congress’s precedent.
The Senate will do whatever it wants. If convicted Trump will appeal, the courts will defer and new constitutional (lower case) law will be created. If they take it up it is only to assert their authority and thus expand the court’s role. THis is all power play with the prize being more control
I use to live in Kentucky and knew Mitch McConnell personally. He’s become an effing idiot. All he and his fellow Republicans are going to accomplish if they allow such a trial to proceed is drive the country closer to civil war/revolution.
The trial will proceed. There’s nothing the Republicans can do to stop it, even if they wanted to. But he will be acquitted. There is no way that 17 Republicans will vote to convict. Maybe 5, and I doubt it will even be that many.
My community looks like a ghost town. Many businesses are gone for good, and many others are hanging on by the skin of their teeth. People are desperate, in the process of losing everything, and all we hear about out of DC from this new administration is this vindictive farce of an impeachment. We need help, not your indulgence in pointless vendettas.
We’ve been told that the vaccine is the best way through this, yet all we see is a vindictive witch-hunt against a now private citizen. If the vaccine is indeed the best solution for getting out of this mess, then that should be the TOP priority.
We see the new President, his family, and some of his staff violating the very mask order he signed not two hours before. We see him giving the bullshit “come on man” response to a valid question about his plan for a vaccine rollout.
There is a seething anger building with each wasted day.
“The NY Times reports that Senate Republicans are negotiating the terms of this unconstitutional trial:”
There’s a very strong possibility that everything reported is also made up out of thin air.
“Negotiating terms” is another way of saying completely rejecting.
These people have no honor or integrity.
What’s next, are they going to try Woodrow Wilson?
No, they will try Lincoln for not freeing the slaves sooner!
If Trump’s defeat was as real as they say, then they need to explain why they need to stop him from trying a comeback?
Even if his defeat was real, why would that prevent a comeback in four years, if he wanted one? Nobody denies Cleveland’s defeat was real. And nobody denies that his comeback was equally real. There’s no reason Trump couldn’t do the same. There are lots of reasons why I think he won’t, but none that he couldn’t.