by Neil H. Buchanan
At this point, I think Republicans have done Democrats a favor by insisting on delaying the start of the impeachment trial. To be clear, I am talking about the second delay, which pushed the trial back from the first few days of President Biden's term to the week of February 8. The first delay, when Mitch McConnell refused to take up the issue at all before the end of Donald Trump's term, was both dangerous (because we are simply lucky that nothing worse happened in Trump's final few days) and dishonest ("It's too soon" having been immediately followed by "It's too late!").
But as to the second delay, I think that Democrats have to be pretty happy. Republicans are disgracing themselves once again, all the while forcing an outcome that their most fully disgraced members -- presidential pretenders all -- truly do not want but have to pretend to support. Meanwhile, more and more evidence continues to pile up regarding Trump's culpability, even as we learn additional depressing facts about the organization and execution of the January 6 coup plot.
Even though the Republican caucus will almost surely not see seventeen defections, this is still good news for Democrats, from a political standpoint. There is a point at which further delay would be more damaging than helpful, but I do not think that two weeks is anywhere near that limit, and if it were up to me, I would be fine with an additional postponement. If, as Republicans self-fulfillingly insist, this is to be a partisan show trial with no doubt as to the outcome, it will be a better show if it includes even more evidence to put on display.
But of course, Senate Republicans -- led by Rand Paul, the poster child for the Dunning-Kruger effect and the man who is in over his head on every issue (seriously, does he know less about economics or law, his two favorite subjects on which to issue self-important pronouncements?) -- tried and failed to prevent a trial from happening at all. They loudly proclaimed to the world that it is unconstitutional to impeach an ex-president. That assertion is so wrong that it is worth exploring just how crazy the Republicans' position is. And that exploration leads inexorably to a rhetorical question: Can they not read?
Today, I published a new Verdict column: "Impeaching a Former President Is Plainly Constitutional." I chose the modifier "plainly" in the title to make clear that this argument can be fully resolved by looking at the relevant constitutional text itself. It is not difficult at all to determine what that text does and does not say. Much like my writings about the presidential pardon power (most recently here), I wrote in exasperation, wondering how supposedly informed and at least semi-literate people can say with a straight face that text means something other than what it means.
When it comes to pardons, my added frustration is with the large numbers of liberals who have thrown up their hands and agreed with a ridiculous over-interpretation of the text; but on the question of impeachment, it is at least a relief to see that everyone except Trump's slavish enablers has gotten it right. Indeed, in my Verdict column, I take pains to say that there is nothing at all wrong with liberals' invocation of historical precedent, original public meaning, the founders' intent, or the future dangers that would be created by exempting a former president from being impeached and tried.
It is just that none of that is necessary here. For a party and political movement that supposedly exalts textualism, Republicans and so-called constitutional conservatives can be conveniently bad at reading text. Or put differently, a nativist movement that screams at immigrants to "Learn English!" ought to be led by people who do not struggle to understand their native tongue.
Although I discuss some additional ancillary issues, the heart of today's Verdict column is the textual analysis, which ends up being quite simple to explain. Trump's excuse-makers have seized on Article II, Section 4 of the Constitution, which reads: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Somehow, Paul and others have decided that this means that only sitting presidents, vice presidents, and civil officers can be impeached. But that is simply not how the English language works. That clause is a basic if-then statement: If the sitting president is impeached and convicted, then he shall be removed. It does not say that no one else can be impeached, nor does it say that the only people who can be impeached are current officeholders.
What I did not point out in today's column is that the appropriate interpretation of this text does not rob it of any meaning or turn it into surplusage. That is, the correct reading does not limit who can be impeached, but its import lies in making it obligatory that impeachment and conviction result in being kicked out of office -- "shall be removed" is different from "can be removed" or "will be removed only if additional steps are taken or conditions are met." The Senate cannot, for example, follow up a conviction by saying, "... but we'll only censure him while leaving him in office."
In other words, the constitutional text that Republicans think is their slam-dunk case against after-term impeachments and convictions has nothing to do with that question at all. They might as well point to, say, the Commerce Clause as proof that the Constitution does not allow such impeachments. It would be just as (ir)relevant.
And as an aside, I feel obliged to note that Republican bothesidesism on this question -- including Ted Cruz's lulu: "Apparently every January we’re going to be doing another impeachment,” he said. “So I guess next year, I don’t know, maybe it’ll be the impeachment of Jimmy Carter, or the impeachment of Bill Clinton, or the impeachment of Barack Obama, because that’s what we do in Januaries." -- should not cause any non-Republican to say, "Gee, I guess I wouldn't like it if the shoe was on the other foot." If Republicans (or anyone else) can prove that Jimmy Carter committed high crimes and misdemeanors as president, I will be surprised but nonetheless willing to listen to evidence and legal argument. I am at least highly confident that there were no attempted insurrections led by Carter, Clinton, or Obama of which we have until now been unaware.
But if the Republicans' mangling of Article II, Section 4 is embarrassing, what can one say about their pretending that Article I, Section 3 does not exist? "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States" means that there are at most two consequences that can follow after being impeached and convicted: removal from office, and being barred from holding office again. This text obviously does not say that we can only do the second thing when we can also do the first thing. It says only that nothing more than those two things can happen. Again, it is simple to know what those words mean. That is, I am not making a deep interpretive move but rather saying that the phrase "shall not extend further than" actually has an obvious and unambiguous meaning.
So what can we do when only the second consequence is available, because the convicted person is already out of office? Again, there is no mystery here, and to belabor the point, the text says that two things can happen, and if one has already happened but the other has not, then you can go ahead and do that second thing. Notably, that text is not obligatory, so disqualification from future office is not required, but it is available. Again, then, the text provides clear and limiting meaning -- just not the meaning that the Paul/Cruz crowd have invented.
In today's Verdict column, I offer this analogy: "Suppose that a state’s drunk driving law were to say that, upon being convicted of driving while intoxicated, the driver shall lose his license and be prohibited from driving in the state for the next ten years. A person who was driving drunk and without a valid driver’s license would obviously not be able to say: 'Sorry, I don’t have a driver’s license for you to revoke, so you can’t do anything to me!'" It would be nonsense to say that the state could not prohibit the person from getting a driver's license going forward.
After putting that column (and then myself) to bed last night, I realized that the analogy could be tweaked to make it fit the current question even more tightly. As it stands, the analogy demonstrates the absurdity of saying that multi-part consequences of bad actions are an all-or-nothing deal. But applying it to Trump's situation, we would say that the drunk driver did have a valid driver's license at the time of his offense, that the license was going to expire in two weeks, and that his lawyer delayed the court appearance until after the license had expired.
Does that tweak change the textual analysis? Not really, because the purpose of the analogy is to show that defendants who cannot be punished in one legal way can still be punished in other legal ways. But the tighter analogy does shine a light on why this is appropriately an impeachment proceeding in the first place, because the bad acts occurred at a time when both consequences of impeaching and convicting Trump -- removal and disqualification -- were possible (and entirely justified). Trump was a sitting president when he incited an insurrection. He might try to do it again in the (near) future, and if he does, he will be a private citizen who can (even under the crabbed reasoning of that old Office of Legal Counsel memo about criminally charging presidents) be prosecuted, convicted, and imprisoned for his crimes.
We can query whether Trump could be impeached (beyond being criminally prosecuted) for something that he did after he has left office. Nothing in the Constitution says explicitly that this is prohibited, and again, if Bill Clinton has committed what would be impeachable offenses since 2001, we can argue about how to deal with that. I am confident that the political process would police itself (even in wholly polarized times), because there is simply no reason to think that it is important to disqualify Clinton from holding office in the future.
At the very least, however, we can say that the Constitution's text does not definitively answer that question. What the text does say, in language that could not be clearer, is that sitting presidents who are impeached and convicted shall be removed from office, and that anyone who is impeached and convicted can be barred from future service. It is right there in plain English.