As Senate Democrats plunge headlong into their impeachment trial of former president Donald Trump, a Plan B is emerging on Capitol Hill – and the vague outlines of a risky Plan C are taking form.
No president ever has been convicted in a Senate trial, the crispest way to repel an American president from the White House and the most efficient means of assuring that a former chief executive does not return later. Despite the record, that is the route favoured by the Senate Democratic leadership and most of the rank and file.
“The Senate has jurisdiction on this and there is a powerful argument that this guy came damn close to ripping the nation apart, and without a few brave police officers there would have been a lot of dead members of Congress,” Laurence Tribe, the Harvard Law constitutional scholar who is working closely with Democrats supporting Senate conviction of Mr. Trump, said in an interview. “He was willing to mount an insurrection when all of his other efforts to steal the election failed.”
The advantage of Plan A is that it would lead directly to a vote to bar Mr. Trump from holding federal office again, which itself holds a provision the Democrats find appealing. That secondary measure following a Trump conviction – to end the last Trump dreams of a return to office – would require a simple majority. That would be well within the grasp of the Democrats, who now hold power in the 50-50 chamber by virtue of Vice-President Kamala Harris’s ability to break a tie.
But increasingly it is becoming apparent that the mathematics will not work for the Plan A option, which requires a two-thirds vote. That means 17 Republicans would have to vote to convict a president that has a 73 per cent approval rating among Republicans, according to a recent Quinnipiac University poll.
The impeachment resolution passed by the House of Representatives cites Mr. Trump with “incitement of insurrection” over this month’s violence at the Capitol. That won easy approval in the Democratic-controlled House – but it could prove problematical in a Senate trial.
“The problem is that they charged him with the wrong crime,’' said John Yoo, a leading conservative legal scholar at the University of California, Berkeley, and a top lawyer in the George W. Bush administration. “I don’t think Trump committed incitement. He didn’t enforce the law, he defied the Constitution after his attempts to overturn the election failed, and he was derelict in his duty of protecting the capital and the nation – but I don’t think incitement was the right call.”
All of which is why Plan B seems to be gathering support.
That would be a simple censure of Mr. Trump, a gesture – and it is no more than a gesture, with no power to bar him from office – that could gather Republican backing and only requires a majority vote.
It came into focus after the most generous count this week put the trial-conviction option 11 votes short of prevailing, and that is only if Senate GOP leader Mitch McConnell of Kentucky sides with those hoping to convict Mr. Trump. Mr. McConnell has shown contempt for the former president in recent weeks, his ire growing after the invasion of the Senate chamber itself. But his leadership style is to take the measure of his caucus, so he is not a sure bet for conviction but a likely supporter of a contempt effort.
Four presidents – including two of the most celebrated, Andrew Jackson (1829-1837) and Abraham Lincoln (1861-1865) have been censured, though the fine print of the censure resolutions suggests that only Jackson bore the full brunt of the punishment.
Censure attempts were introduced against 10 presidents, including Richard M. Nixon and the last four occupants of the White House, but never were voted upon. Any censure of Mr. Trump clearly would win approval and attempts to soften the language almost certainly would fail.
Plan C involves the 14th Amendment, ratified in 1868 and best known for its “equal protection” provision that has been a vital element in civil rights cases. The amendment was passed in the wake of the Civil War but one of its provisions calls for banning from federal office any person who “shall have engaged in insurrection or rebellion against” the United States. This was intended for those involved in the secessionist Confederate States, but some lawmakers want to apply the language to Mr. Trump.
There is, however, a major flaw in Plan C that its advocates have ignored. If the 14th Amendment language is employed after Mr. Trump is acquitted, he could appeal to the Supreme Court. In arguments there, he could point to his acquittal and argue that the Senate vote proved he was not an insurrectionist.
The Senate will start with Plan A, where there now is little mystery of its disposition. The big mystery is how they proceed thereafter. As with everything involving Mr. Trump, precedent has no bearing and the unpredictable is likely.
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