Trump impeached again: what happens next?

Outgoing US President Donald Trump

Of all the democratic norms President Donald Trump has broken during four years in the White House, none is as important as the peaceful transition of power. The photos, videos and accounts that have emerged since the ransacking of the Capitol on January 6th include footage of rioters beating a police officer with a flagpole as a crowd chanted “USA” and crushing another officer repeatedly in a door. Yet the violence, which resulted in five deaths, was nearly much worse. Quick-thinking police officers distracted the mob from breaching the debating chambers long enough to whisk every lawmaker to safety. Some of the rioters, chanting “Hang Mike Pence” and “Where’s Nancy?”, had violent designs on both the Republican vice-president and the speaker of the House—the first and second in the line of presidential succession.

In the final days of Mr Trump’s administration, Congress will be consumed with working out how to punish the president. The House of Representatives, which is controlled by Democrats, quickly drew up an article of impeachment accusing the president of “incitement of insurrection”. It passed on January 13th, one week after the attack on the Capitol. Some Republicans, after encouraging, or standing by mute as the president attacked the democratic process for months, have shaken consciences. Ten of them joined all 222 Democrats on the vote.

Liz Cheney, the third-ranking Republican in the House, was one of them, declaring in a blistering statement issued the night before that “there has never been a greater betrayal by a president of the United States of his office and his oath to the constitution”. Kevin McCarthy, the Republican leader in the House and a staunch ally of Mr Trump, who objected to certification of Joe Biden’s election victory even after the attack on the Capitol, declined to whip opposition to the measure (and reportedly warned colleagues not to denounce Republicans who voted to impeach, worrying that this might put their lives in danger). Having pledged to end “American carnage” when he was inaugurated, Mr Trump will depart ignominiously, the only president to have been impeached twice. The indelible image of his administration will be the spectacle of a mob vandalising Congress in a bid to overturn a fair election.

What happens from here, however, is uncertain. Upon impeachment, charges against the president are tried in the Senate, where a two-thirds majority is needed for conviction and removal from office. Yet Mr Trump will be leaving office anyway on January 20th, when Mr Biden is inaugurated. The Senate is adjourned until January 19th. An earlier session could be called if members were unanimous, but this is doubtful. Chuck Schumer, the Democratic leader in the Senate, has floated the use of an emergency clause that would allow an earlier session, but the success of that parliamentary manoeuvre is not guaranteed. And even if so, completing the trial while Mr Trump is in office would require record-breaking speed, and not give him much time to defend himself.

This presents a constitutional edge case without precedent: can a president be convicted of impeachable offences after he has left office? Although not legally proscribed, this is also untested. Congress ended the impeachment inquiry into the Watergate scandal soon after Richard Nixon resigned in 1974, evidently feeling its purpose moot. Some lawyers reckon that continuing the trial once Mr Trump has left office might be unconstitutional.

There are compelling reasons to proceed anyway and let the Supreme Court sort that out. The first would be to establish that presidents may not commit impeachable offences without consequences during their lame-duck periods. The second would be to disbar Mr Trump from holding federal office again, preventing a possible comeback presidential bid in 2024. That would give Republicans an opportunity, however late, to rid the party of Trumpism, stop its worrying flirtations with authoritarianism and allow it to return to being a constitutional, conservative opposition. “There’s a spiritual teaching that there’s no reconciliation without repentance,” says Chris Coons, a Democratic senator from Delaware.

Mr Trump’s first impeachment trial, held just one year ago over his pressing the Ukranian president to find dirt on Mr Biden and his son Hunter, ended in acquittal because of near-unanimous opposition from Senate Republicans (Mitt Romney was the lone aisle-crosser). Their desire to defend the president after the assault on the Capitol will be less dogged this time. The odds against a full conviction still seem long: with the newly sworn-in Congress, at least 17 Republicans in the chamber would need to defect. Yet Mitch McConnell, the soon-to-be minority leader, has let it be known that he might be open to conviction, and where he goes many of his caucus may well follow.

Democrats who want more certain and immediate punishment for Mr Trump, and the historic dishonour of being the first sitting president to be removed from office, have suggested two hastier constitutional routes. The first is the invocation of the 25th Amendment, which allows the vice-president and a majority of the cabinet to immediately remove Mr Trump from power. This is doomed. When Democrats passed a resolution urging Mr Pence to try that strategy, he flatly refused, writing that “I will not now yield to efforts in the House of Representatives to play political games at a time so serious in the life of our nation.”

The other is the resuscitation of a section of the 14th Amendment to the constitution that permanently bars those who violate their oaths of office by engaging in “insurrection or rebellion” from holding federal office again. This clause was designed to prohibit the election of former Confederate rebels after the civil war, and has been almost entirely ignored since. This is the most outlandish option for ousting Mr Trump, not least because the language contains no clear mechanism for removal. Nonetheless, some Democrats think it could be used more widely. Cori Bush, a leftish Democratic representative, has introduced a resolution, co-sponsored by 47 other Democrats, citing the same clause, which seeks to censure and possibly expel the Republican congressmen who voted not to certify Mr Biden’s victory.

As for Mr Trump, his steadfast allies in Congress are showing clear signs of insubordination. The Twitter account he used to keep Republican dissenters in line has been muzzled. And the emerging evidence from public-opinion polling suggests that his base is souring on him too. Our latest survey, conducted with YouGov, shows that Mr Trump’s overall approval rating has dropped from 42% to 39% in the span of a single week (and among his supporters in the recent election from a messianic 93% to a mere 83%). One in six of his voters now say that they supported the violent assault on the Capitol, a worrying minority, but much less than the 45% of Republicans who thought it justifiable in the immediate hours after news broke.

Yet there are concerning remnants of the epistemic rot that Mr Trump and his abettors have wrought: 81% of his supporters say that they have little to no faith in the fairness of the presidential election—the Big Lie that instigated the entire fiasco. And a remarkable 74% of Trump voters believe the conspiracy theory that Antifa, a left-wing group, was involved in the Capitol assault. Republicans in Congress may, in the twilight of Mr Trump’s presidency, embark on an exorcism for their party. Other demons may haunt them for longer. – Economist.

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