TRUMP II — WHO IS REALLY ON TRIAL?
Forty-five Republican senators sought today to short-circuit the second impeachment trial of Donald Trump by voting to dismiss it on grounds that it is “unconstitutional.” Five Republicans (Collins, Murkowski, Sasse, Romney and Toomey) voted with fifty Democrats to let the trial proceed. It will proceed.
Rand Paul, the noted constitutional ophthalmologist, brought the motion to dismiss on grounds that:
Private citizens don’t get impeached. Impeachment is for removal from office, and the accused here has already left office,” Mr. Paul said, calling the trial “deranged” and “vindictive.”
Just as they did in the first impeachment trial, Republicans are hiding behind alleged procedural issues to avoid having to go on record concerning Trump’s culpability. In the first trial, they refused to allow any witnesses to be called, claiming that Democrats in the House should have garnered any necessary testimony before bringing the matter to the Senate. (Recall, in particular, that the House did seek to depose John Bolton, who refused to appear. He later signaled his willingness to appear before the Senate, but the Republicans refused to allow any witnesses.)
There is precedent for trying a public official after he has left office. In 1876, William G. Belknap, Secretary of War under Grant, resigned before impeachment proceedings had been brought to deal with corruption charges. Even though he had already resigned from office, the House impeached him anyway, and the Senate proceeded to trial, with over 40 witnesses. Ultimately, a majority of the Senate voted against Belknap but not the two-thirds supermajority required to convict. (Belknap was criminally indicted after the impeachment proceedings, but the charges were dismissed when Grant interceded — shades of Trump and Michael Flynn.)
In any event, it is important to understand that in Trump II, the refuge some Republicans are taking in “unconstitutionality” is entirely bogus. That’s because the Senate has complete authority to manage impeachment as it sees fit. In Nixon v, United States, 506 U.S. 224 (1993) a federal judge, Walter Nixon, was impeached by the House and tried by the Senate for perjury. The Senate convicted him and removed him from the bench, but Nixon appealed arguing that the Senate trial was procedurally flawed. (A committee, rather than the Senate as a whole, heard witnesses, and reported back to the full Senate with a conviction recommendation.) In a unanimous decision, the U.S. Supreme Court held that the judicial branch — even the Supreme Court — has no jurisdiction over impeachment matters
because the Constitution reserves that function to [the House and Senate]. Article I, Section 3 of the Constitution gives the Senate the “sole power to try all impeachments.” Because of the word sole it is clear that the judicial branch was not to be included. Furthermore, because the word try was originally understood to include fact finding committees, there was a textually demonstrable commitment to give broad discretion to the Senate in impeachments. — Wikipedia, Nixon v. United States
Every senator, then, has the right to participate in the determination of how impeachment should proceed. Those senators who felt that non-office-holders like Trump should be exempt from the impeachment process were free to assert the point, as they did today, but they lost: The Senate has held otherwise and the Trump trial will proceed.
Still, based on today’s 55-to-45 vote, it’s obvious that there will not be enough votes to convict Trump. It’s also obvious that most Republicans will continue to hide behind the idea that the trial is unconstitutional, even though that’s been decided otherwise by the Senate majority.
So why proceed? Obviously the Republican party is fearful of backlash from the Trump base. If Trump’s incitement of insurrection isn’t enough to move GOP hearts and minds, one would think that the physical threat of that crowd at the Senate chamber doors might have awakened outrage. And if not that, the fact that Trump — apparently gleefully — watched the carnage on TV before being coaxed into making his infamous “we love you” statement to the “special’ rioters. Certainly that should take all nuance out of the decision. But it will not.
In truth, it is not Trump who is on trial. It is the Republican party.
https://www.nytimes.com/2021/01/26/us/politics/impeachment-charge-senate.html