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Analysis

The big decision that Democrats will soon face on impeachment: to censure or not to censure

Senate Majority Leader Chuck Schumer spoke to reporters during a break in Donald Trump's impeachment trial.
Senate Majority Leader Chuck Schumer spoke to reporters during a break in Donald Trump's impeachment trial.BRANDON BELL/NYT

With the acquittal of Donald Trump by the Senate in his second impeachment trial all but certain, a new question will likely emerge in the coming days: What about censuring Trump for his role in the Capitol Hill attack last month?

While convicting or acquitting Trump was entirely a question up to Senate Republicans, censuring him will logistically be up to Democrats, who can control whether the measure comes up on the floor for a vote.

And the answer on whether Democrats should proceed with a censure isn’t exactly obvious for Senate Majority Leader Chuck Schumer.

First, the math: 17 Republicans would need to join all 50 Democrats to have the two-thirds majority needed to convict Trump of charges outlined in the House’s article of impeachment. Since Trump is no longer in office, the only point of convicting him is to make Trump the only president in history to be convicted by the Senate, and to then take up a different measure that would bar him from ever running for president again.

A censure motion is just a statement from the Senate without teeth. As such, it only takes a simple majority to pass, and there appear to be at least five Republicans on board with that, meaning the necessary votes are likely there.

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Democrats so far are feeling like the impeachment trial is a slam dunk. The team of House impeachment managers making the case on the Senate floor have been very competent, something nearly every Republican agrees with. Meanwhile, the Trump defense has been such a meandering mess that Trump was reportedly shouting at the television watching them.

If censure is put on the table, Democrats wouldn’t be wrong for thinking that it gives Republicans an “out.” They could be on record disagreeing with Trump, but at the same time allow him to avoid facing any tangible consequences. (Given that Abraham Lincoln also faced a Senate censure, how bad is that punishment anyway, in terms of legacy?)

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On the other hand, once Republicans likely acquit Trump as soon as this weekend, there is the question: is there really going to be no official rebuke from the Senate over what was the first domestic insurrection targeting the Capitol in American history?

However, there could be a more interesting censure resolution in the works that could get some Democratic attention. Maine Senator Susan Collins, a Republican, and Virginia Senator Tim Kaine, a Democrat, are reportedly working on language they believe would somehow prevent Trump from running again. Under the 14th Amendment, no one can serve in Congress or as president or vice president if they took part in an insurrection.

If the language in the censure resolution said that Trump did just that, the thinking goes, he could be prevented from seeking the presidency again. And critically, only 51 votes are needed to pass it.

Then again, this doesn’t appear to be a cut-and-dried case. If Trump so wanted, he could appeal that question to the US Supreme Court, where there is a conservative majority thanks to three members he put on the court while president.

Still, the censure conversation will likely dominate the weekend. And for Democrats, instead of trying to figure out if they are giving a gift to Republicans or letting Trump off by proceeding with a censure resolution, they might ultimately decide something else: It’s time to get back to the Biden agenda.

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James Pindell can be reached at james.pindell@globe.com. Follow him on Twitter @jamespindell.