Senate Republicans, some of whom may reasonably have feared for their own lives when insurrectionists stormed the Capitol on Jan. 6, are now coalescing around a single argument as they harden their positions against an impeachment trial for Donald J. Trump: a constitutional claim that former presidents may not be impeached. This is an idea floated by, among others, a former federal appeals court judge, J. Michael Luttig, in the Washington Post, Sen. Tom Cotton, and professor Jonathan Turley, who fully briefed the Senate GOP at a luncheon on Tuesday. (It appears that in 1999, Turley took the opposite position, but no matter.) Sen. Rand Paul forced a test vote on this proposition Tuesday. It failed, but not in a way that perfectly predicts how many GOP senators will embrace the constitutional offramp.
This claim—that it is not constitutional to impeach a former president—is not really a sound idea, but it probably sounds good enough to pass the stink test. Never mind that 150 legal scholars— including a co-founder of the Federalist Society as well as one of Ronald Reagan’s solicitor generals—dispute it, or that the argument is stunningly weak as a matter of constitutional text and history, or that the “two sides” here are not in fact really two sides at all. It’s clear that whereas in recent weeks Senate Republicans were unified around the vague “unity” theory of the case against impeachment (meaning that, for the sake of unity, the former president’s actions must be forgiven and ignored), they’ve now glommed onto what feels like a more plausible constitutional “process” rationale for leaving the past—even if that past is only 3 weeks old—firmly buried in the past.
The process argument has a certain allure; it allows Rand Paul and Ron Johnson to sound like they are adhering to high constitutional principle while releasing them from the crushing burden of justifying the former president’s actual actions around Jan. 6. And none of this lofty talk of Article II, Section 4, even takes into account the actions of the 147 other Republicans who voted that day to overturn the election results based on sham claims of a stolen election. As Adam Serwer observes, the fact that some Senate Republicans themselves will be on trial in a sense during this second impeachment should weigh heavily on them. But it will not. And as my colleague Jim Newell predicted, Senate Republicans will process-argue their way out of dealing with what happened earlier this month because they have discovered that they can.
And so Senate Republicans seem to have settled upon a strategy of blanketing a numb and exhausted populace with “process” arguments about all the ways their hands are tied when it comes to the actions of an ex-president, while still complaining that the other side of the aisle is lawless. Sure, what the former president did was problematic, the fractionally more honest Republicans will say, but impeachment is not the correct vehicle to remedy that. If this all sounds familiar, recall that, only a year earlier, the bulk of Donald Trump’s defenders in the Senate chose not to deal with the reality of his phone call to Ukraine that sought to have that country begin investigating the son of his election opponent. Instead, GOP members confined their arguments to claim that impeachment was inappropriate for a sitting president. That first impeachment effort was an extra-constitutional effort to either overturn the prior election or an effort to try to steal the next one. These were some of the main arguments that allowed every GOP senator aside from Mitt Romney to say that the law itself forced their hands.
A year ago, Sen. Joni Ernst explained her vote to acquit the former president as part of her constitutional obligation to ensure that the American people—and not she, a sitting senator elected by those people—would decide the impeachment question: “Given the constitutional requirements, voting any other way on these articles would remove the ability of the American people to make their own decision at the ballot box in November.” Impeaching a sitting president foreclosed the constitutional right of the voters to remove a sitting president by voting against him, apparently. But Ernst argues this week that while Trump bears some responsibility for the Capitol riot, an impeachment at this point is unconstitutional and “if the president is truly guilty of something else we have remedies through the courts for that.”
Then-Sen. Lamar Alexander made exactly this argument at the first impeachment trial:
It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate. … The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.
For much of the GOP, last year was too soon for the Senate to act constitutionally. This year it is now too late. The “let the voters decide” contingent in 2020 included Lindsey Graham, Marco Rubio, Ted Cruz, and Rob Portman. These same senators are today arguing that they once again cannot do their jobs to check power in the executive branch of the government.
During the last impeachment, multiple Senate Republicans used a slightly different version of this faux-constitutional argument to object to the proceedings: They said the Senate trial was simply a shabby, extra-legal effort because it aimed to overturn the will of the people from the 2016 election, as opposed to the 2020 election. Consider, for instance, Sen. Josh Hawley. Around this time last year Hawley, on Fox News, accused Democrats of purporting “to protect democracy by overturning elections.” (For what little it’s worth, Hawley was one of the Senate Republicans who, purporting to protect democracy on Jan. 6, voted to overturn the 2020 presidential election for no reason other than that his preferred candidate lost.) A year later Hawley now says of an impeachment trial: “I think that this impeachment effort is, I mean, I think it’s blatantly unconstitutional. It’s a really, really, really dangerous precedent.”
Similarly, Ted Cruz, back in January 2020, pronounced that “to use impeachment, like the House Democrats are doing, to express their political disagreement with the president, to try to overturn an election they’re unhappy with, that is an abuse of the Constitution.” (Cruz, like Hawley, voted on Jan. 6 after the riot to overturn an election he was unhappy with.) He now admits that the constitutional matter of impeaching a former president is a “close question,” then pivots to say that he opposes impeachment for Trump because “President Trump has already left office, we have a new administration. … I think this impeachment trial is petty, it is vindictive, and I think it’s time to move on.” So. To review. In 2020 it was an abuse of the Constitution to use impeachment to overturn an election, but in 2021 it’s “petty and vindictive” to use impeachment to punish a president who sought to overturn an election.
The boldest Trump apologists combined both arguments about prior and future elections into a big faux-constitutional fondue. Here was White House counsel Pat Cipollone in his closing arguments in the first impeachment trial: “We put our faith in the Senate because we know that you will put your faith in the American people. … You will leave this choice to them where it belongs.” Cipollone echoed Cruz and Hawley, adding that “at the end of the day, this is an effort to overturn the results of one election and to try to interfere in the coming election that begins today in Iowa. … There is only one answer to that, and the answer is to reject those articles of impeachment. To have confidence in the American people, and to have confidence in the result of the upcoming election, and to have confidence and respect for the last election and not throw it out … and to leave the choice of the president to the American people.”
Trump’s personal lawyer Jay Sekulow made this same observation in his own arguments: “Elections have consequences. We all know that. And if you do not like the policies of a particular administration or a particular candidate, you are free and welcome to vote for another candidate. But the answer is elections, not impeachment.” The constitutional shell game here is a simple one: If the president is still in office, impeachment is an inappropriate remedy because it’s either an effort to subvert the past election or manipulate the upcoming one. For a sitting president, the argument goes, it will always be urgently important to “let the people decide.” Once the president is out of office? Impeachment is an inappropriate remedy because he is no longer sitting; indeed, even the effort to prevent the president from seeking future office is now characterized as anti-democratic apparently, no matter what he may have done to subvert democracy himself. Asked about a vote to bar the president from running in the future, Ron Johnson said this week, “Let the voters decide whether they want President Trump to run again. … There’s nothing I see in the Constitution that allows you to impeach a president after he’s already left office.” “Let the voters decide” is the get-out-of-jail-free card, by which other officials also elected by the voters declare themselves impotent about past, present, and future misconduct.
Law professors largely agree that the central problem with the argument that a former president cannot be impeached is that it would allow her to resign three minutes prior to an impeachment trial, having committed impeachable offenses throughout her time in office. But the political objection is simpler: If Republicans now contend that you cannot impeach a sitting president, and you also cannot impeach a former president, and you cannot even prevent an impeachable president from running again in the future without running afoul of the “will of the people,” impeachment is a dead letter, a relic, and completely useless. Unless of course, they’re already trying to impeach Joe Biden. In which case the Constitution stands firmly on their side.