The week's big question: What will be the fallout of Trump's 2nd impeachment?
The Week contributors weigh in on the coming Senate trial, and beyond
What will be the fallout of Trump's 2nd impeachment?
This was an historic week in Washington, as President Trump became the first president in American history to be impeached twice by the House of Representatives, this time for "incitement of insurrection" after his supporters attacked the Capitol to block the certification of the Electoral College vote. What comes next will be historic and unprecedented as well, as both Democratic leaders and Senate Majority Leader (for now) Mitch McConnell have said that Trump's Senate trial will extend into the early days of Joe Biden's presidency. With Trump already out of office, the immediate threat of conviction would be limited, but the political ramifications remain uncertain. This week's question is: What will be the fallout of Trump's second impeachment?
It depends on the Senate — and the rioters
Much of the fallout of President Trump's second impeachment depends, I suspect, on whether there even is a Senate trial. This is an open question on two counts: First, is it constitutional to conduct the trial after he has already left office? Legal scholars disagree, with some arguing that an official who can no longer be removed from office — one of the two constitutional punishments that can attend conviction — cannot be tried, and others insisting the punishments are severable and the trial could proceed to disqualifying Trump from future office. Senate leaders on both sides of the aisle appear to be of the latter view.
The second condition I anticipate determining the trial's fate is the behavior of the subset of Trump voters who stormed the Capitol last week. If the inauguration passes without incident, statehouses around the country are left unmolested, the Biden administration begins to deliver on the normalcy promised, and the COVID-19 pandemic returns to view as our most pressing national crisis, it is easy to imagine President-elect Joe Biden and congressional Democrats deciding they have more important business than trying Trump. Already attention is shifting to the details of the much-promised $2,000 checks. Further quiet will allow memories to fade. Distraction may exceed the desire to hold a Twitter-less Trump to public account.
But if the rioters riot again, and particularly if they do so after any remotely untoward statements from Trump himself, a trial seems certain. In that scenario, given the legal ambiguity of the timeline, a Supreme Court case is possible. Trump would seek a public platform with new urgency to proclaim his supposed persecution. And those rioters, taking his claims to heart, just might riot some more.
An ambiguous process of diminishing significance
Being impeached twice is certainly a historical black mark against President Trump, one that can only be somewhat lessened if impeachments become routine. This impeachment is also much harder to dismiss as the handiwork of partisan zealots than his first one, or Bill Clinton's and Andrew Johnson's for that matter. In any event, Trump is likely to be judged harshly for his conduct leading up to the attack on the U.S. Capitol.
The violence in Washington was a deeply serious matter. How serious of a response this impeachment bid really is remains to be seen. Trump won't face a Senate trial before his term expires and he leaves office anyway. The point of this exercise, if there is one, is partly symbolic — perhaps holding this president accountable will deter any successors from behaving similarly — and partly substantive — a conviction would allow lawmakers to ban him from running again.
But the constitutionality of a post-presidential impeachment process is emerging as a key Republican talking point that will allow some GOP senators to vote against conviction without defending the president's conduct. Sen. Tom Cotton was among the first to raise this issue. And those constitutional questions are serious enough that Trump may be able to contest the one substantive thing that could be accomplished by convicting a president who is already out of office: If this isn't really something the Senate can do, can Congress really ban him from a 2024 campaign?
There is a nontrivial chance that after all the sturm and drang of the House impeachment vote, there still won't be enough Republicans to vote to convict and some Democrats may begin to conclude that continuing to hang the Orange Man around their GOP colleagues' necks is of lesser importance than moving on to Joe Biden's legislative agenda. If that is what happens, impeachment will still stand as a bipartisan rebuke of Trump. But it will matter less.
A test of the GOP's Constitution talk
Republicans have long presented themselves as the "more constitutional than thou" party. It was a brilliant bit of branding — even if it was a stretch — but one that took a hit in recent years as the GOP prostrated itself before a president who was both utterly unfamiliar with the document and positively disdainful of the restrictions it placed on his authority. For the most part, his allies in Congress went along with him the last four years.
But the last few months have seen Donald Trump do far more than stretch the Constitution. He has tried to break it.
Even before he incited last week's riot at the Capitol, he had spent the last two months propagating the lie that he had won the presidency by a landslide of millions of votes. (Once again: He didn't.) Trump pressured swing state officials to find fraud where there was none. He suggested the Supreme Court owed him a ruling that would give him the presidency again. He asked his vice president to reject the votes of those states that went against him. At every point in the process — at the state and federal levels, and in all three branches of the federal government — he sought to overturn the will of the American people as expressed through their states' electoral votes. Trump failed, but not before unleashing terrible violence against Congress.
Senators take an oath to support and defend the Constitution. Trump's actions since the election have overtly and selfishly tried to undermine that Constitution. Republican senators can vote accordingly — or prove that their professed love of the founding document was a sham all along.
The escalation of a partisan weapon
I expect the most lasting effect of President Trump's second impeachment to be the normalization of the process itself. In the last decade the House of Representatives has evolved. The lower chamber's primary business is not passing legislation but using its subpoena power to call spurious hearings meant to undermine the opposition party in the White House. Sooner or later, an escalation from the theatrics of Fast and Furious and Benghazi to two consecutive years of impeachment was inevitable.
The legal argument for convening a Senate trial after Trump has left office is unconvincing. A plain reading of Article I, Section 3 of the Constitution makes it clear that removal and disqualification from office are not separate penalties. The latter is a consequence of the former, one for which a former president would not be eligible.
A more interesting question is what reason apart from sheer spite do Democrats have for attempting to prevent Trump from seeking the presidency again in 2024. Isn't this a problem that "our democracy" should be capable of sorting out? Apparently they regard a 78-year-old former president as a formidable political opponent. How secure is their consensus?
The beginning of accountability for Trump. Or not.
It is usually unwise to predict what will happen to Donald Trump. He is a machine for shattering norms and conventional wisdom. So what will happen to him after his impeachment is a tough call. That said, there seem to be two broad possibilities. First is Trump escaping virtually scot-free. The Senate won't convict him, and neither will the broken legal system on any of his various crimes. He will remain at the head of the Republican Party until he dies. The cynic in me can't help but believe this option.
However, it's also possible that the rats may start deserting the ship. A new Pew survey finds Trump's approval rating has fallen below 30 percent for the first time since he took office. Other Republicans would like to take Trump's place at the top of the conservative movement, and they may decide that now is the time to stick the knife in — if the Senate convicts him, they can ban him from holding federal office. Similarly, the incoming attorney general, as well as state legal authorities, may decide that Trump's mile-long list of alleged crimes is simply too blatant to ignore. Only time will tell.