Yesterday afternoon, a bipartisan majority in the U.S. House voted to impeach Donald Trump for the second time. The Republican was accused of “incitement of insurrection,” and 232 federal lawmakers agreed to hold to hold him accountable for his misconduct.
Attention now shifts to the U.S. Senate, which is tasked with holding a trial to weigh the outgoing incumbent’s guilt. Looking ahead, there are a handful of questions to consider:
When will the House send the impeachment article to the Senate?
There was some talk several days ago about holding the impeachment article — perhaps for months — in order to prevent disrupting Senate work in the early days of Joe Biden’s incoming administration. That option has been rejected, and the article will be sent immediately.
Will the Senate reconvene quickly for a trial?
Apparently not. Though there was some reporting this week that GOP leaders would return to work early to hold an impeachment trial — holding open the possibility of a pre-inaugural conviction — Senate Majority Leader Mitch McConnell’s (R-Ky.) office confirmed yesterday that members would not return to work before Jan. 19, the day before Joe Biden’s swearing in.
Could McConnell reconvene sooner?
Yes, but Senate Republican leaders only seem to rush when there are Supreme Court vacancies to fill.
Given Republican opposition to impeachment, would a trial even matter?
Don’t be too quick to assume how senators would vote on this. The New York Times reported over the weekend, “While it seemed unlikely that 17 Senate Republicans would join Democrats for the two-thirds necessary for conviction, the anger at Mr. Trump was so palpable that [GOP] leaders said privately it was not out of the question.” A separate New York Times reporter added on Tuesday that as many as 20 Senate Republicans are “open” to convicting Trump.
Axios reported yesterday that Mitch McConnell himself “would be more likely than not to vote to convict Trump” — a move that would make it far easier for other GOP senators to do the same — and the Kentucky Republican confirmed in writing yesterday that he’s at least considering voting to convict Trump, a far cry from the position he took during Trump’s first impeachment.
Given that Trump will be out of office in six days, what difference would it make?
Under normal circumstances, a Senate trial leading to a conviction would remove an official from office. That obviously wouldn’t apply here: even if a two-thirds majority in the Senate agreed to convict Trump, it wouldn’t change the fact that the Republican, at that point, is a private citizen.
That said, as Rachel explained on last night’s show, a Senate conviction would lay the groundwork for banning Trump from ever again holding public office — a step that would require a simple majority vote, not a two-thirds supermajority — and could also put his presidential pension in jeopardy. Can the Senate consider the charge against Trump while also taking up legislation and confirming new Biden administration officials? The president-elect specifically called on senators yesterday to find a way to do exactly that, and by all accounts, they’re working on it. Is there any kind of precedent in American history for a post-departure impeachment trial? Trump may be unique in a variety of ways, but there is a precedent for this dynamic. A corrupt cabinet official resigned in 1876 in the hope of derailing his impeachment, but those efforts failed: the House impeached then-Secretary of War William Belknap anyway, and the Senate held a trial, even after he was no longer in office. A federal judge also faced an impeachment trial after stepping down from the bench. What about Sen. Tom Cotton (R-Ark.) and others who are arguing that an impeachment trial against a private citizen is unconstitutional? Stephen Vladeck, a professor at the University of Texas School of Law, explained in an op-ed today, “This argument is wrong as a matter of text, structure, historical practice and common sense.” Harvard Law School’s Laurence Tribe added in a separate op-ed today, “The clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump’s presidency would not end his Senate trial.” Trump may nevertheless file a lawsuit in the hopes of derailing a post-term Senate trial, taking his chances in court. Watch this space.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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