How Biden Could Persuade GOP Senators to Convict an Impeached Donald Trump
It would keep him from ever running for office again.
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A sitting president encouraged an attack on our seat of government—that’s what impeachment is for. It doesn’t matter if Donald Trump’s speech was protected by the First Amendment. Impeachment is a political standard. It is what a majority of the House of Representatives say it is. And there can be little doubt that our Founders created the impeachment process—a high bar that requires two-thirds of the Senate to agree and bars anyone convicted from holding public office again—for any president who would flirt with tyranny.
The Constitution states that the only punishment that impeachment can bring is removal from office and “disqualification to hold and enjoy any Office of honor.” The Senate can choose to impose one or both of those judgments. And despite some precedent at the turn of the last century in which the Senate held that they needed only a majority vote to bar future office holding, the Constitution makes no distinction—both require two thirds. Impeachment in the House followed by conviction in the Senate could, therefore, bar Donald Trump from ever holding office again. He could not run for president in 2024 or even a Florida congressional seat in 2026. And that power is given solely to Congress by the Constitution; no court could reverse it.
The Senate currently has 99 members, which means the current bar for conviction is 66 members. Democrats hold 48 votes until the two members from Georgia are sworn in, which may not happen until after Inauguration Day.
The first question, then, is whether Democrats can wait until Trump has left office to convict him—not for the purpose of removing him from office, but to disqualify him from holding office again.
In 1876, the same year as one of the most hotly-contested presidential elections in history, President Ulysses S. Grant’s secretary of war, William Belknap, resigned just before the House could vote unanimously to impeach him for profiting from a not-so-clever kickback scheme to fund the lavish parties he was throwing at his home in D.C. The Senate tried him—with Gen. George Custer as a star witness—but only 35 senators voted to convict, which was just shy of the 40 needed to meet the two-thirds threshold required by the Constitution. The senators who voted to acquit didn’t dispute Secretary Belknap’s guilt; they did not believe they could impeach someone who had already left office.
And that means that for those who want to prevent another Trump campaign, it is simply a question of counting to 18. Although Sen. Mitt Romney—the first senator in history to vote to convict a president from his own party—may be able to persuade some of his colleagues to join him this time around, there are not 17 more votes as of today. Too many Republican voters were fed lie after lie for too long, and these senators will not be able to convince their constituents that they did anything other than turn their back on their flawed-but-better-than-the-other-guy president.
But what if Biden could offer something to give them cover back home? President Trump is immune from federal criminal conviction while in office. After January 20, however, he is just like every other citizen. And while his role in the events of January 6 may not be indictable, Trump has been reported to be considering pardoning himself, which at least implies that he is concerned about the potential of such criminal investigations.
If Biden promises to pardon Trump for all crimes committed before January 20, 2021, at least a few Republican senators would be able to explain that they voted to convict—not to punish Trump—but to help him. And to allow the country to move on.
When President Gerald Ford pardoned Richard Nixon after he resigned rather than face impeachment, Ford said he wanted the county to be able to avoid “prolonged and divisive debate.” Ford, however, was a member of the president’s own party. And Nixon resigned voluntarily. Biden will have no such cover to pardon Trump on either count. And yet, the country will be harmed by endless debate and investigations into Trump and Trump will only delight in the attention.
In this pardon-for-conviction deal, Biden can tell his voters that he pardoned Trump in exchange for removing Trump from public life and 18 GOP Senators can say they took the deal to protect Trump from ravenous, partisan prosecutors.
And America moves forward.
I am among Ms. Isgur's most enthusiastic fans, and the opportunity to read and hear her opinions at TheDispatch.com is worth the price of the admission ticket all on its own. I applaud her enthusiasm, and the wealth of legal and political knowledge which underlie her opinions.
This column, however, is only half-correct. And the problem with the half that's not is very substantial.
Bluntly put, the kind of political deal she proposes — Biden "giving something" to GOP senators reluctant to convict, a pardon of Trump that they can tell their constituents has "saved Trump" from prosecution — is an ethical nonstarter.
In both the criminal and civil judicial systems, state and federal, it's never permissible for jurors to ignore their oaths to base their answers solely on the evidence. To the contrary, in the set of standard jury instructions to be used in all cases, for example, the Texas Pattern Jury Charge tells every Texas judge to tell every Texas juror the following, as part of the instructions about jury deliberations: "Do not trade your answers. For example, do not say, 'I will answer this question your way if you answer another question my way.'"
No matter how politically practical, any deal like this would be unholy, improper, and ... well, Trump-like. Tens of millions of Americans ridiculed President Ford for insisting that he was trying to spare the country the trauma of criminal proceedings against Nixon, believing instead that he was mostly sparing NIXON that trauma via some implied quid pro quo by which Nixon would promptly and without further ado ensure that Ford could take over as POTUS. There are good reasons to believe that the Nixon pardon cost Ford the 1976 presidential election, and while I agreed with Ford at the time and now, there's no slam-dunk rebuttal to those who believe there was a quid pro quo.
No, the whole subject of pardons needs to be kept entirely apart from the question of whether to impeach Trump in the House and convict him in the Senate.
*****
I have, instead, a competing but parallel idea:
Impeach Trump, but don't be in any hurry about it. Do it the right way, the clearly constitutional way.
Persuade the reluctant GOP senators not with some unsavory political logrolling, but the old-fashioned way: With mounds and mounds of meticulously developed and presented evidence, both testimonial and documentary, developed and brought to the Senate through a scrupulously fair and bipartisan impeachment investigation in the House.
The key, as Ms. Isgur quite correctly notes, is that impeachment — to secure a judgment of conviction in the Senate disqualifying an officeholder from future service — may take place even after an officeholder is out of office. Article I, section 3, clause 7 of the Constitution provides in pertinent part: "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 ...." By specifying the scope of the Senate's potential judgment of conviction to include both removal AND disqualification, the Constitution effectively gives the Congress the power to do EITHER.
And there is solid precedent within the Senate that the disqualification vote, when taken, requires ONLY a simple majority. In a white paper on impeachment from the Congressional Research Service published online by the Government Printing Office, we find this:
---begin quote---
The Constitution provides for removal from office on conviction and also allows the further judgment of disqualification from holding further office. U.S. Const. art. I § 3 clause 7. No vote is required on removal following conviction, since removal follows automatically from conviction under this constitutional provision. Deschler Ch 14 § 13.9. But the further judgment of disqualification from holding future office requires a majority vote. Deschler Ch 14 § 13.10. The question on removal and disqualification is divisible. 3 Hinds § 2397; 6 Cannon § 512.
---end quote---
link: https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-27.pdf (at page 15 of the .pdf)
The white paper goes on to note that in Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla 1993), a federal district court concluded that impeachment alone, while sufficient to result in automatic removal from office, does not automatically also impose a future disqualification from office. Link: https://scholar.google.com/scholar_case?case=11621862673631192543
And see also this commentary from the Legal Information Institute at Cornell Law School:
---begin quote (footnotes omitted)---
Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote,855 the Senate has determined that disqualification may be accomplished by a simple majority vote.
---end quote---
link: https://www.law.cornell.edu/constitution-conan/article-2/section-4/judgment-removal-and-disqualification
It's not at all clear — but I don't think there is any relevant precedent to suggest — that for an officeholder already out of office, the Senate could skip the two-thirds vote on conviction and proceed straight to the disqualification issue.
******
The real goal here is to prevent Trump from running again for POTUS in November 2024. There is therefore NO NEED to try to do a rushed, half-baked, poorly developed, and therefore politically unpersuasive impeachment attempt before Trump leaves office. The Twentieth Amendment, after all, ends his term at noon on January 20, 2021, NO MATTER WHAT, by operation of law and without any further involvement by the Congress.
Note well that in sharp contrast to the first impeachment of Trump — in which the DoJ was headed by a Trump appointee and its lawyers could not be counted upon to fight vigorously in court to enforce a House Judiciary Committee subpoena for testimony and documents, the Biden DoJ, probably under the auspices of new AG Merrick Garland (who's well known and comprehensively respected among the federal trial and appellate judges of the District of Columbia, who'd be also involved in subpoena enforcement), can be predicted to act swiftly and aggressively in forcing testimony from reluctant witnesses, INCLUDING TRUMP HIMSELF, who will no longer have the shield of the presidency as an excuse to prevent the forced taking of his testimony upon penalty of contempt of court.
And unlike the last go-around, the House Judiciary Committee — in which the House Democrats inconceivably skipped subpoenaing key witnesses like John Bolton, who by that time was EAGER to testify, if only they'd give him the legal cover of a subpoena to protect him from Trump NDAs and other retribution — there are now a host of former high-level Trump Administration officials who would likely cooperate voluntarily, accepting a negotiated "friendly subpoena" from the House Judiciary Committee.
Put Trump under a microscope, through the documents trail and the testimony of these witnesses with first-hand knowledge of his actions — but focus EXCLUSIVELY upon his behavior, from and after the election and leading up to the despicable rally last Wednesday immediately before the criminal invasion of the Capitol.
Use professional staffers to do the actual gathering of evidence and building of a case for impeachment, on the Nixon impeachment model. No more Jerrold Nadler grandstanding, or reelection/fundraising speeches by other Dem members of the House — just competent, methodical, relentless lawyering by professionals who've done that for a living for many years and at the highest levels. Indeed, Speaker Pelosi should impose, and ruthlessly enforce, a comprehensive "gag order" on her members throughout the impeachment process. Make the arguments for impeachment IN THE ARTICLES OF IMPEACHMENT, not in press conferences and fund-raising emails!
Most important of all:
Allow full participation in the process, both by the House minority Republicans (including the Trumpkin lunatics there-amongst) and separate counsel for Trump. Do this one on a genuinely bipartisan basis: There are certainly now some Republicans in both the House and Senate who will join in the effort, not obstruct it. Deprive Trump and his supporters of their "rush to judgment" argument; show that this is emphatically NOT a political witch hunt, but a solemn investigation of a POTUS who has tried very hard, in violation of his oath, to maintain his time in office beyond its constitutional term.
This is eminently doable, legally and politically. And when you're done, you are sure to have the powerful, unequivocal testimony — based not on inferences and guesses and innuendo, but on first-hand observation and original, authentic source documents — that was largely missing from the last half-cocked impeachment attempt.
I'm inclined to think the American people deserve thier pound of flesh if only to "bait fish withal. If it will feed nothing else, it will feed (our) revenge. He hath disgraced (us) and hindered (us) half a million, laughed at (our) losses, mocked at (our) gains, scorned (our) nation, thwarted (our) bargains, cooled (our) friends, heated (our) enemies". (Parenthesis mine) He has "laid the laws flat" and now we should protect him from their fury? Hunt down and punish the insurrectionists who breached the Capitol and committed arson, mayhem and murder but not the man who sent them?
Sorry, the last ounce of mercy was wrung out of me on January 6th. I don't want to triangulate this. There is nothing partisan about it. He and his factotums and mobs have done enormous damage to the Republic; to our country. To the country I once swore an oath to. We have no Tarpeian Rock to throw traitors from so holding them accountable in the courts will be sufficient. I'm really inclined to take him and his upside down Bible and hold him and his dead-enders to a Biblical end. If nothing else as a grim warning for those who follow. It seems to me that's the only way to move forward from this. The way we move forward from any crime. Punish the guilty and comfort the aggrieved.
If he and his armed, bomb-laden, zip-tie and rope-carrying friends - who all scorn compromise - had won out how many compromises would we have been offered?