Forty-five Republican senators have voted for the proposition that the forthcoming trial of the God Emperor is unconstitutional because he has already left office. This would be a plausible conclusion, and maybe a correct conclusion, if the only consequence of conviction were removal from office. But that is not how it is. A second potential consequence of conviction is being barred from future federal office. So, the trial does not involve resolving a moot point. The 45 senators are wrong. I do not believe this is, in any way, a difficult question. On the contrary, In a world full of uncertainties, the error of the position taken by the 45 senators is the exception: it is just wrong.
My point is not to cast asparagus at the hypocrisy of these 45 senators. I try to write only of matters where I might, possibly, add some value. Enlarging upon the theme of Republican hypocrisy is not likely to add value to the marketplace of ideas.
But, hypocrisy aside, the development this afternoon nicely illustrates the trumped status of the Republican leadership. Jonathan Chait brilliantly captures the moment:
Donald Trump’s second impeachment trial has not even begun, but it is already a foregone conclusion. All but five Republican Senators voted to dismiss the charges on the grounds that a former president could not be impeached.
The legal merits of this position are questionable at best: The Senate has historically impeached and convicted former officeholders, and even many conservative legal analysts agree that Trump’s departure does not rule out a trial. But what is perhaps most amazing about the Republican position is that they are the very party that refused to try him before he left.
A crucial argument made by Trump’s defense team — and repeated by his Republican allies — against his first impeachment trial last year was that it was too soon. Democrats, warned Trump’s lawyer, were “asking you not only to overturn the results of the last election … they’re asking you to remove President Trump from the ballot in the election that’s occurring in approximately nine months.”
This logic was widely embraced by the Republican Senate. The Senate couldn’t remove Trump before the election. That’s what the election was supposed to decide.
After Trump attempted to undo the election result and secure a second term, ultimately whipping up a mob to storm the Capitol, Republicans grew briefly angry. The House quickly voted to impeach Trump for his incitement. But two days after the insurrection, McConnell announced that the Senate would not begin an impeachment trial for at least another 11 days.
To be sure, the Senate could have convened immediately to begin the trial. It refused to because Trump’s allies wouldn’t allow it. The Senate would need unanimous consent to start the trial, and, as the Washington Post noted, “with a cadre of Trump-allied senators in the Republican conference, that unanimous consent is highly unlikely.” McConnell has gotten unanimous consent before, but there is no evidence he even tried this time.
The perfect moment for a trial happened to fall when the Senate was on vacation. What are you gonna do?
And now that Trump has left office, it is sadly too late to hold a trial. And so Republicans will not have to take a stand on whether Trump’s efforts to cancel a presidential election through a combination of subterfuge and violence amounts to a high crime. Before the election, it was too soon to convict him. Then there was a brief lame-duck period when it was neither too soon nor too late, but Republicans decided not to convene. Then they came back, and it was too late.
The Republican Establishment has suppressed its initial feelings of revulsion toward Trump’s mob and calculated that trying to make a clean break with the aspiring authoritarian president would alienate conservative voters. And even many of the conservative intellectuals who initially declared Trump’s crimes to be impeachable have decided the timing is wrong.
“We’ve said Mr. Trump’s actions — and failure to act to stop the riot as it unfolded — were an impeachable offense and urged him to resign,” reasons The Wall StreetJournal editorial page, “But now he is out of office and no longer the ‘imminent threat’ that House Democrats said justified their rushed impeachment.” Notice how after the first sentence concedes the severity of Trump’s offense, the second sentence both accuses Democrats of a “rushed” impeachment and insists it’s too late.
National Review editor Rich Lowry argues, somewhat more forthrightly, that the timing inherently ruled out any conviction. “The problem with impeachment was that it seemed inevitable that it would either be so rushed that it would dispense with every traditional process and therefore lack legitimacy or that it would stretch beyond Trump’s time in office with no chance to convict and therefore lack legitimacy … ” he argues, “There were no good options in terms of timing here, given that Trump’s most flagrant post-election offense came two weeks away from his scheduled exit from office.”
Nobody is defending the insurrection. It merely happens to have taken place during a wormhole in the calendar in which a president can violate the law with complete impunity. They would like very much to hold Trump accountable, but the founders designed the Presidential Crime Wormhole, and we must respect their wisdom.