Our Capitol is now an armed camp, with the National Guard policing congressional halls as lawmakers try to reestablish a sense of what constitutes unacceptable political conduct. For House Democrats, that’s a president inciting a deluded and angry mob to violence. For most Republicans, sadly, it’s holding that president accountable for his actions.
Unless Senate majority leader Mitch McConnell changes his declared course, the Senate will not take up the second impeachment trial of Donald Trump before the president’s term expires, next week. It’s possible that postponing the trial until Trump has left office will make it easier for Senate Republicans to vote to convict. But it will also open those proceedings to the political and legal argument that impeachment doesn’t properly apply to public figures who no longer hold office.
Either way, it seems unlikely the Senate will reach the two-thirds threshold necessary to convict Trump — and, as the article of impeachment envisions, ban him from holding office again. Imposing such a ban would then apparently require only a majority vote by the Senate.
Fortunately, there’s another means to that end. It’s the 14th Amendment, which allows Congress to impose such a ban by a simple majority vote. Section 3 of that amendment was intended to keep former Confederate officials and soldiers from serving in the federal government, explains Bruce Ackerman, a professor of law and political science at Yale Law School.
“In the American mind, impeachment is the well-established way of condemning presidents who are assaulting the foundations of democracy,” Ackerman said. Nevertheless, he said, “this second path” is every bit as legitimate and more likely to prevent a comeback by this democracy-disdaining demagogue.
That section stipulates that no one who has previously taken an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” can hold any public office of position in this country.
“All that is required is for Congress by majority vote to charge that this is the case,” Ackerman told me.
Ackerhman’s own preference would be for the House and the Senate, in a joint resolution disqualifying Trump, to set up a framework by which Trump could argue before the US Supreme Court that he hadn’t done what Congress cited in disqualifying him. That’s not constitutionally required, however. (That said, the matter would probably reach the Supreme Court anyway, via a legal challenge.)
In a rational political world, banning Trump from electoral politics wouldn’t be necessary. By his many dishonest attempts to subvert democracy, most particularly in whipping up his supporters and directing them to the Capitol, Trump would have rendered himself a political pariah. My expectation is that as the events of the last week sink in more fully, and yet more details emerge, the hold he has on the GOP will fade markedly.
But that will take more time, considerably more soul-searching, and, probably, political battles within the GOP. The rationalizations and irrelevancies Republicans offered in Trump’s defense on Wednesday show we aren’t even close yet.
I occasionally urge readers to don philosopher John Rawls’s “veil of ignorance” when assessing political events. Try that here. Presume you don’t know the political affiliation of a president who urged officials to reject their state’s election results and, when they wouldn’t, pressured his vice president to block certification of the Electoral College votes; a president who urged his legions to come to Washington for a “wild” protest and who, despite saying he knew his supporters would make their voices heard “peacefully and patriotically,” also declared that he would never give up or concede, urged them to “stop the steal,” and, before sending them to the Capitol, told them that “you’ll never take back our country with weakness; you have to show strength and you have to be strong.”
If what followed was a violent ransacking of the Capitol, in which five people died, would you support impeachment? I expect most people would, regardless of party. We can say with near certainty that the GOP would. After all, two decades ago, Republicans impeached Bill Clinton for receiving oral sex from a White House intern and then lying about it.
In the age of Trump, that seems like a kerfuffle from the Victorian era.