On Tuesday, after four hours of debate, the U.S. Senate voted to proceed with the impeachment trial of former President Donald Trump. Six Republicans joined with the 50 Democrats in holding it constitutional to try a president for impeachment after he has left office. One Republican who had previously voted against calling the trial constitutional switched to support the trial.
On January 26, the Senate voted for the trial, 55 to 45, with Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Mitt Romney (R-Utah), Ben Sasse (R-Neb.), and Pat Toomey (R-Pa.) siding with the Democrats. Sen. Bill Cassidy (R-La.) had voted against the trial in January but switched his vote on Tuesday. It seems the four hours of argument actually did convince one Republican to change his mind.
Team Trump argued that since the purpose of impeachment is the removal of a president from office, a president cannot be tried after he has left the office. The House of Representatives refused to proceed with impeachment against President Richard Nixon because Nixon resigned.
Rep. Jamie Raskin (D-Md.) warned that Trump’s argument amounts to saying “that if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity. You get away with it.” He condemned this as the “January exception.”
Indeed, the House voted to impeach Trump while he was still in office, although House Speaker Nancy Pelosi (D-Calif.) held up the article of impeachment, refusing to send it to the Senate until after Joe Biden became president. This case does not involve the House retroactively impeaching a president after his term, so, as fun as it is to claim that Congress should impeach former presidents like Barack Obama, that does not logically follow from this precedent.
That said, some might argue that Congress has other ways to condemn the actions of a former president, such as censure. Senators may still vote not to convict Trump, partially on the grounds that convicting Trump does not carry the fundamental impeachment goal of removing him from office.
While the Senate rejected one of Trump’s arguments in his defense, this argument may still help the former president avoid conviction and the Democrats’ goal of preventing him from holding office in the future.
On Wednesday, the Senate will begin to consider the arguments about the Capitol riot and whether or not Trump “incited an insurrection.” The former president’s arguments against this claim are extremely powerful, and if Democrats conclude that Trump “incited an insurrection” when he called for peace both before and during the riot, Democrats will have to accept responsibility for inciting the Black Lives Matter riots this past summer.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.