The Senate’s sad signal — Trump is one for the law books

Impeachment is a political process, and the second impeachment of Donald Trump is no exception. This week’s vote on Sen. Rand Paul’s (R-Ky.) resolution to dismiss the impeachment as unconstitutional failed to muster more than five Republican nays. The resolution failed, but the outcome of the trial would appear to be an inevitable acquittal since at least 17 Republicans would need to join with the 50 Democrats to achieve conviction.

The signal is unmistakable.

The argument for dismissal is that Trump is now a private citizen so there is no jurisdiction to remove someone who has already left office. So, let’s ignore the Jan. 6 insurrection, which Senate Minority Leader Mitch McConnell (R-Ky.) said Trump had provoked. Of course, if there is a jurisdictional problem, McConnell created it. While he was still majority leader, he could have ordered a trial to take place before Jan. 20 with Trump still in office. But he refused to call back the Senate. And yesterday, he voted with the majority of his Republican colleagues to dismiss the impeachment because the trial would occur after Jan. 20.

As a political matter, many Republicans would like to oust Trump from their party. A conviction might disqualify him from holding any office. But clearly their calculus is that their party is better off without impeachment than with. They need Trump’s charisma, his appeal to a far-right base. 

And many possible defectors may fear his threats of a primary fight. Their thinking, moreover, may be that the public is weary of reading about Trump, and wants to move on. It’s the “why beat a dead horse?” argument, and it is not so far-fetched. Even the mainstream media wants to take him off the front page. 

But law and the Constitution play a role in impeachment as well. Our elected officials are supposed to govern a country ruled by laws, not fear or favor. That is why the Republican senators sat down over lunch the other day with Professor Jonathan Turley of George Washington University to talk about the precedents. Turley recently wrote a piece for The Hill, arguing that impeachment of a private citizen is unconstitutional.

But in 1999 (roughly two months before then-president Bill Clinton was impeached), Turley wrote a piece for the Duke Law Journal arguing that impeachment after the president leaves office is Kosher, indeed the order of the day. His present explanation is not that he was wrong before, but that there are good faith arguments on both sides.  

Other legal experts are of the opposite view. Harvard Professor Laurence Tribe points to at least three precedents where officials were tried on an impeachment after they had left office. One involved Sen. William Blount, one of the signers of the Constitution, who tried to sell Louisiana to the English.

It just doesn’t seem right that a president could commit “Treason, Bribery, or other high Crimes and Misdemeanors” in the final months before he leaves office, escape a trial in the Senate and run again for office because he has become a private citizen.

The evidence that Trump incited an insurrection is overwhelming. It is based on mountains of videotape recording of what Trump said on January 6, and what the mob did at the Capitol.

Trump’s words were incendiary: Stop the count; stop the certification; overturn the election. His defenders will likely point to his statement that the mob should march on the Capitol, but do it “peacefully.” Can you shout “fire” in a crowded theater when there is no fire, only to whisper, “false alarm”?

The only president to be twice impeached, Donald Trump is the template for a basic course to be required in all law schools. The lesson plan will be a blend of criminal and constitutional law. It may be called “Donald 101.”

His words of ambiguity were his anchor to windward. But will it work? His parting shot was that he would come back “in some form.” Whether he comes back or not, Trump’s legacy will certainly reside in the law school case books, as well as the dustbin of history.

James D. Zirin, a former federal prosecutor, is the author of “Plaintiff in Chief—A Portrait of Donald Trump in 3500 Lawsuits.”