February 8, 2021

MICHAEL KINSLEY: Against Impeachment: Failing to convict Trump for a second time gains the Democrats nothing. “And why do Democrats and the media keep referring to Trump as the first president in history to be impeached twice? They tried once and lost, and now they’re trying again and are almost certain to lose again. At what point does impeachment lose its sting and become just another piece of the political tool kit?” Um, about a year ago.

Plus: “In reality, the animus that energizes the call for impeachment and conviction has its roots long before the events of Jan. 6.” It’s an unconstitutional political show trial. The outcome of impeachment is removal. You can’t remove someone who’s already out of office. And the “incitement” claims are BS that fail as soon as you compare Trump’s statements to the far more over-the-top statements of Democrats for the past four years. And that’s not all, as Kinsley notes:

The single article of the impeachment document accuses Trump of fomenting rebellion against the government. His speech on Jan. 6 encouraged a mob to storm the Capitol. Or that is the argument we will hear repeatedly during an impeachment trial, and it is not an unreasonable interpretation of Trump’s words that day.

But meanwhile, federal prosecutors are fanning across the Internet, tracking down and indicting leaders of the mob, which appears to have been far more organized and pre-planned than we thought initially. Every bit of evidence that the rampage was actually a plot undermines the case that Trump’s somewhat ambiguous words shortly before the event are responsible for causing it. You can argue that the rampage was planned or you can argue that Trump caused it. You can’t argue both.

Well, you can, and lots of people are.

I hope Kinsley’s right and it’s also bad for the Democrats politically, because such idiocy needs to carry a price or it will be engaged in again.

And, ironically, even on conviction Congress lacks the power to stop Trump from running again, as noted by Josh Blackman and Seth Barrett Tillman:

Under the disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

If the House impeaches a president, vice president or officer of the United States, then that defendant is tried by the Senate. If the Senate tries and convicts (by a two-thirds vote), then the convicted party (if still in office) is removed. The Senate may also impose a second punishment on the convicted party. Under the disqualification clause, Congress may bar the convicted party from prospectively holding “any Office of honor, Trust or Profit under the United States.” This provision grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

Congress has disqualified only three impeached officers (all federal judges) from holding future office, and none have subsequently run for elected federal positions. As a result, we have no substantial law here and little commentary. We have already explained that Justice Joseph Story indicated that elected officials did not fall under the scope of the Constitution’s general “officer of the United States “and “Office … under the United States” language. This latter language is at least as wide as the disqualification clause’s “Office of honor, Trust or Profit under the United States” language. Story’s position is also supported by Hamilton’s roll of officers. Of course, we also believe the practice of George Washington and other founders who succeeded him as president confirms that the “Office … under the United States” language in the foreign emoluments clause does not reach the presidency. The same result should apply here. An impeached, tried, convicted, removed and disqualified defendant is barred from being an appointed federal officer, and not barred from being an elected official.

This has gotten insufficient attention.

Related: New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives’ Managers’ Trial Memorandum. “Assuming the legality of late impeachment in the current circumstances, House managers may be able to seek a conviction for its expressive function, and they can seek disqualification as a bar against Trump’s holding appointed federal positions in the future. The scope of Senate disqualification is a different issue. We have put forward our position over the course of more than a decade: the better view is that the Senate cannot bar Trump from running for and holding elected federal positions. Let the People decide.”

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