On January 13th, 2021, the US House of Representatives voted to impeach President Donald J. Trump for a second time in a mostly party line vote 232 to 197 (with ten Republican voting aye). This second Snap Impeachment in H. Res. 24 (117th Congress) was on a single charge of “Incitement of Insurrection”, predicated on remarks made at a political rally at the Ellipse on January 6th, 2021 as Congress was set to certify the Electoral College results for the Presidential Election.
After certification of the November 3rd election results, President Trump’s term ends on January 20th, meaning that the snap Impeachment, which only acts as a judicial equivalent of an indictment, was in the last seven days of President Trump’s term of office. The Senate was not scheduled be in session until January 19th and current Senate Majority Leader Mitch McConnell (R-KY) was unwilling to convene in emergency session, so the earliest that the Senate could take up an Article of Impeachment (presuming that House Speaker Nancy Pelosi promptly send it over this time) is 1 p.m. on January 20th, one hour after newly inaugurated President Joe Biden takes his oath of office.
Any astute political observers understand that this Second Impeachment was not meant to evict Mr. Trump out of the Oval Office but to besmirch his place in history and seek him from exercising any political power after January 20th. Unfortunately, this political stunt has some serious repercussions for the polity, the rule of law and even the Constitution.
Firstly, there was a rush to remove President Trump. When the Capitol Siege occurred on January 6th, Trump was only going to be in office for less than two weeks. When the Snap Impeachment was passed, the 45th President would leave office in seven days. But that perspective only looks towards part of the consequences and not the cause. Facts about the violence on Capitol Hill have been fluid. Vital questions such as who were the instigators of the insurrection and why a couple hundred agitators were allowed inside the Capitol. Thus is seems unwise to rush to judgment, but that did not deter Nancy Pelosi’s drive to impeach Trump again.
A day before the Impeachment vote in the House, the House passed a Resolution (on a purely party line vote) which implored Vice President Pence and the Trump Cabinet to invoke the 25th Amendment, which would (temporarily) remove President Trump and make Pence Acting President pending Congressional assent. The 25th Amendment was intended for instances when the Chief Executive was incapacitated, not for policy disagreements or “High Crimes and Misdemeanors”.
The proper Congressional role in the 25th Amendment is to ratify the Acting President, not to instigate his or her installation. This Resolution abrogates the Separation of Powers, namely having part of the Legislative Branch leveraging the Vice President with a threat of an Impeachment vote unless Mr. Pence invoked the 25th Amendment. That kind of sounds like Speaker Pelosi was drunk on power for countenancing that Constitutional breach.
The Snap Impeachment of 2021 was done at super speed in less than seven days from the Capitol Siege to passing the Article of Impeachment. The charge “Inciting an Insurrection” is a serious charge, verging on treason, thus one might try to justify an accelerated procedure. But it that were the case, then why didn’t the House stay in session to actuate the Impeachment. Instead, the House took the weekend off. The Impeachment was delayed by a voice vote on Monday January 11th rejecting the 25th Amendment Resolution and then passage of the unconstitutional 25th Amendment Resolution on January 12th before proceeding to the Snap Impeachment on January 13th.
In 1974, the House Judiciary Committee labored seven months drafting the first Article of Impeachment against President Richard Nixon (who resigned before any final Congressional vote). The Impeachment process of President Bill Clinton lasted four months. Even President Trump’s first Impeachment took three months. Yet, the slim Democrat majority in the House lead by Speaker Nancy Pelosi managed to pass an Article of Impeachment with three HOURS of floor “debate” and no committee work.
Unlike in the Impeachment of 2020 when some of President Trump’s staff were allowed to offer some positive input, there was no fact finding or committee hearings before the Impeachment Debate. So the Snap Impeachment ignored precedent.
It can be argued that an impeachment is like an indictment. Some cynically say that a Prosecutor could indict a ham sandwich with a Grand Jury, as the defendant is not entitled to counsel in that forum.
But at least in a Grand Jury there is fact presentation rather than ramrodding a predetermined outcome. No fact finding and just a three our debate? So much for Due Process.
Part of the animus against President Trump is for his brusque manner which agitates people. The Article of Impeachment which passed cited “Inciting an Insurrection” and pointed to Mr. Trump’s rhetoric as part of the charge. With that in mind, it was curious that the rules for debate on the 25th Amendment and Impeachment resolution lifted decorum prohibitions. This allowed members like freshman Representative Cori Bush (D-MO 1st) slanderously referred to the gathering on the Ellipse to the White Supremicist-in-chief addressing White Supremicists (sic). Not surprisingly, this comes from the same Member who proposed expelling any Congressmen who voted against certifying electors (N.B. bill was dropped on January 5th, the day before the ruckus). With actions and language like Rep. Bush, one wonders who is inciting unrest.
One of the things that were done on the first day of the 117th Congress was rules in the House which barred Members from using gender specific language in legislative business. Yet when Speaker Nancy Pelosi (D-CA 12th) gave a rare floor speech in favor of the snap Impeachment, she proclaimed “I stand before you as a wife, a mother, a grandmother, a daughter, a daughter...”
Guess that rules are only intended to be applied for peasants or the opposition, even silly ones.
Even though the Snap Impeachment was done in an expedited fashion, it was not immediately walked over to the Senate. While Impeachment Managers were named, including Rep. Eric Swalwell (D-CA 15th) who was recently exposed as having involvement with Chinese spy Fang Fang, the Article was not conveyed to the Upper Chamber for trial. It is unclear when Speaker Pelosi will send over the Article of Impeachment. For the 2020 Impeachment, Pelosi held the Articles of Impeachment for a month before sending them to the Senate. So much for a supposed clear and present danger.
With these facts in mind, it is reasonable to conclude that essentially this was not a second impeachment of impeachment of Donald Trump but more of a show trial, Soviet style which gave the illusion of some system of justice but had a predetermined outcome dictated by the ruling House legislative majority. Aside from exercising its rightful impeachment power, there were attempts at Congressional dominance over the Executive branch and eschewed principles of due process which have influenced America’s common law heritage.
But that is only considering the ramifications from one chamber of Congress. The Senate is where the Impeachment Trial occurs. This will be made complicated due to timing. Again, it is unclear when the Article of Impeachment will be transmitted. If the House Majority truly wanted to eject President Trump from office, it would be immediately sent. The snag with that is the Constitution requires that the Senate immediately take up the Impeachment and can conduct no other legislative business.
The Senate is not scheduled to reconvene until January 19th, and won’t be put into emergency session sooner. Current Senate Majority Leader McConnell is circulating a draft rule which requires unanimous consent to doing business aside from Impeachment. It is improbable that in such a contentious environment that all 100 Senators grant such a deviation from customary procedure. So when the Impeachment Article is conveyed, it will dominate Senate business.
It is conceivable that if House Impeachment Managers present themselves with House Res. 24 to the Senate on January 19th, that McConnell could press the Senate to immediately consider a Motion to Dismiss which could pass by simple majority vote. Looking at it politically, Democrats can crow that Trump was impeached twice and Republicans are forced to indicate if they still support a besmirched President Trump. But it is unclear if the Republican caucus in the Senate could hold firm to dismiss. If it is a razor thin vote, it might require current Vice President Mike Pence to break the tie. If the motion fails, then the Senate would immediately be broiled into an Impeachment trial.
When the inauguration occurs on January 20th, Senator Kamala Harris (D-CA) will become Vice President and surrender her seat in the Senate, but constitutionally she will become President of the Senate. This role will allow her to break tie votes, which will be crucial in a 50–50 split Senate, thereby giving Democrats the majority. This means that Senator Chuck Schumer (D-NY) becomes Senate Majority Leader and will call the tunes for the Impeachment trial, but changing the operational rules again could be a sticking point.
House Majority Whip James Clyburn (D-SC 6th) has suggested that the Impeachment trial be delayed to give President Biden his 100 day honeymoon. That won’t be possible if the House rushes the Article of Impeachment, but that is unlikely. Presuming the Impeachment is held until May, it will hang over the new President’s head and may well force involvement, either to allay the situation or verbally stumble into taking a stance.
There is a significant Constitutional question as to the propriety of the Impeachment of a President after he or she has left office. Impeachment is a process in which the legislature brings charges against a civil officer of the government. Well, after Noon on January 20th 2021, Donald Trump becomes a private citizen again. It is moot as to whether it would be proper for the Senate to try a private citizen. Prominent contemporary legal scholars like Cass Sunstein, Alan Dershewitz and Jonathan Turley argue against impeachment of an ex President. But there is a little historical precedence for it.
In 1876, there is the example of Secretary of War William Belknap who was investigated by the House for corruption. But minutes before the Impeachment occurred, Belknap submitted his resignation to President Ulysses S. Grant. However, the House impeached him anyways and the Senate tried him but failed to get the 2/3ds majority. This issue is not clear cut and would probably prompt judicial consideration which will likely be rejected as a political issue. Then again, it might force Chief Justice John Roberts to consider a difficult issue while proceeding over a Senate trial.
Why would Democrats go through all of the trouble to impeach a President who was essentially a short timer anyways? Aside from trying to blot out a Trump presidency either with black marks or essentially cancel him, it would seem that they are scared about his future viability. Post Presidency Impeachment may not be able to remove Trump but would also barr him from ever holding federal office again. Considering the 74 million plus supporters who seem undeterred by bad press or even a snap impeachment, Democrats do not want strong opposition in 2024 to a weak Biden Administration featuring Kamala Harris. Some establishment Republicans would feel safer if the Populist America First movement goes away with Donald Trump. Thus they might encourage impeachment to dampen his pull on the party and they can continue unimpeded in their quintessential District of Calamity (sic) cocktail party.
There is a practical political consideration about a Senate Impeachment trial. Namely, are there the votes? Unlike procedural issues, the Senate is required by the Constitution to garner a 2/3rds majority to succeed. While there may be a few Republicans who despise Trump enough to vote for Impeachment, it would be hard to win 17 GOP votes. Even if Senate Democrats abolish the filibuster and push through Puerto Rican and Douglass Commonwealth (a.k.a. DC) statehood, they would still have to sway 15 Republicans.
Turncoat Republicans had better hope for success, because an enraged and engaged MAGA wing will primary those who vote for a snap impeachment of Donald Trump.
Then there are the procedural problems with Trump’s second impeachment. There is only one Article, and that cites “Inciting an Insurrection”. Aside from the plain language of Trump’s Ellipse speech which never incited his audience, it can be shown that trouble was occurring 1 ½ miles away on Capitol Hill before the President finished his speech. Furthermore, facts from the FBI and mainstream media sources reveal that some agitators who have radical BLM and Antifa connections had been planning for trouble prior to the Capitol Siege. This information will have to be fleshed out in a fair trial.
Moreover, the Resolution’s language points to Trump’s citation of false information about winning the election. Of course, all Americans (even a President) have the Freedom of Speech, even if it is demonstrably wrong. But by citing Trump's prior speeches and claims, that opens the door for Trump’s defense team to further expose and substantiate all of the election irregularities that state courts, Article III courts and the Supreme Court declined to hear on their cases merits. That may take a long time and could upset the apple cart about the 2020 elections, further throwing doubt into the legitimacy of Biden’s presidency.
Then there is the matter of Big Tech. Social Media giants like Twitter and Facebook censored President Trump when questioning the election. To add injury to insult (sic), these Social Media Cyber Nannies banned President Trump from even making statements to tell his supporters to go home peacefully. That may open the door to expose collusion amongst internet companies in Election 2020.
As the Article of Impeachment proof texts Trump’s remarks to find the most inflammatory takes, context might examine social media’s role in the matter. That avenue of defense open the door to expose collusion amongst internet companies in Election 2020. If incoming Senate Majority Leader Schumer resists allowing the Trump team a vigorous defense, it will become clear that it is a show trial worthy of a Soviet state or a banana republic (not the kind selling safari clothing).
However, if some wild cards come up during the trial, such as obvious election fraud or collusion, some may prefer visit Niagra Falls over a barrel, with or without Dr. Jill.
Just as the Biden campaign was not about him but all about Donald Trump, the second impeachment trial of Trump may well overshadow the early Biden presidency. While the will to get Trump might be widely held among Democrats (and some establishment Republicans), actuating this animus may well impede the ambitions of “The Great Reset”.