The jury is still out on whether it is legal for the Senate to try Trump on the “incitement of insurrection” impeachment charge that the House of Representatives used to impeach him in the wake of the deadly 6 January Capitol building riot.
“I think it’s unconstitutional. I think impeachment is for people who should be removed from office, not for people who have already left office,” claims Alan Dershowitz, a Trump lawyer who participated on the ex-president’s legal team during the latter's first impeachment trial in January-February 2020.
“But I think the Senate will go forward unconstitutionally, putting themselves above the law,” the attorney suggests.
Some Senate Republicans share his point of view. Earlier this month, immediately after the House impeached Trump for a second time, Tom Cotton, GOP Senator from Arkansas, claimed that “the Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” and suggested that “the Founders designed the impeachment process as a way to remove officeholders from public office – not an inquest against [a] private citizen.”
Cotton is one of a growing number of Republican Senators who have spoken about the futility of another impeachment trial, whether on constitutional grounds or for other reasons. On Sunday, Marco Rubio – a Florida Senator who clashed bitterly with Trump for the Republican nomination in 2016 - suggested that it would be “arrogant” to try to impeach the former president, and that it was up to voters, not the Senate, to decide whether Trump could run again.
“Who are we to tell voters who they can vote for in the future?” Rubio said, dismissing the trial as “stupid” and promising to vote to end it.
Rubio has been joined by other GOP Senators, including Mike Rounds of South Dakota, John Cornyn of Texas, South Carolina Senator Lindsey Graham, John Barrasso of Wyoming, and Ron Johnson of Wisconsin. Cornyn suggested that if the second Trump impeachment trial goes ahead, Republicans might start impeachment proceedings against former Democratic presidents when and if they regain control of the House and Senate.
Partisan Politics Gone Mad
Dershowitz warned that a Senate trial would set a “terrible precedent,” sowing chaos and have long-running implications for the stability of America's two party system.
“It will mean that every former president can be subject to impeachment if the other party controls Congress. It will cause recriminations and divisions among the country. It’s not only unconstitutional, it’s foolish and [divisive],” the lawyer stresses.
Dershowitz does not believe that forces seeking to convict Trump and permanently bar him from ever again running for public office have enough votes, but admits that everything is possible. “It’s always possible. You know, these are politicians and they have to check with their constituents and hold their finger up to the wind. And so anything’s possible, but I think at the moment it’s unlikely.”
“Whether it’s successful or unsuccessful, it will divide the country. And if there was a successful conviction, it would raise questions about the legitimacy of the next election in 2024. Because if Trump wasn’t allowed to run as a result of a Senate trial, a lot of people might think that that election was illegitimate, because their candidate was disqualified from running. So I think it will have an impact over many years to come,” the lawyer says.
Senator Mitt Romney of Utah is the sole GOP Senate lawmaker to have publicly come out in support of a trial, Telling Fox News Sunday that he is not only in favour of trying Trump, but also of convicting him.
“I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense. If not, what is?” said the long-time ‘Never Trump Republican’, whom the former president has repeatedly derided as a ‘Republican in Name Only’ or RINO.
The Utah Senator was the lone Republican to convict Trump during the latter's 2020 Senate impeachment trial, which followed the president’s first impeachment by the House on abuse of power and obstruction of Congress charges related to his attempts to pressure the Ukrainian government to restart an investigation into allegations of corrupt activities of the Biden family in the eastern European country between 2014 and 2019.
Precedent Does Exist?
Not everyone is convinced that the Senate trial would be unconstitutional.
“It is constitutional to hold such a trial. There is precedent when a former War Secretary was impeached and tried after he left office,” says Christopher Metzler, a US political pundit, government strategist and legal scholar.
“The trial itself is not the issue,” Metzler believes. “It is the hope of the Democrats to bar Trump from running for office which is key here. This is where they will face trouble. The Constitution provides removal as the sole remedy and thus their wish will not stand up,” the observer says, pointing to unlikelihood of garnering at least 67 Senators (at least 17 Republicans, given the current makeup of the Senate, to agree to convict.
“There are not currently enough Republican votes for a conviction. Much will depend on the trial and [on] Republicans’ decisions about the base of voters. 2022 is around the corner and so they will have to make sound political decisions. What are chances of Trump being convicted? The chances at this time are not very high,” Metzler suggests.
