On Wednesday, the House voted to impeach President Donald Trump for a second time, on a charge of “incitement of insurrection,” by a bipartisan 232-to-197 vote. Once the article is received by the Senate, the Senate must act upon it. Sen. Mitch McConnell, in one of his final acts as majority leader, said after the impeachment vote that the chamber would not return until after Joe Biden’s inauguration, which means that impeachment will likely be the Senate’s first order of business under the Biden administration and Senate Majority Leader Chuck Schumer. Slate convened some of its political reporters to discuss what to expect when the Senate reconvenes.
Jim Newell: Welcome, friends, to this episode of So Uhhhh What’s the Senate Gonna Do?
Whenever we traipse across the hallway from the House to the Senate, we enter a dense procedural thicket. One of the first questions popping up among some Republicans is whether it’s constitutional to try a president after he’s left office. Sen. Tom Cotton says no, and even some Republicans open to convicting Trump, like Sen. Pat Toomey, have questions. Dahlia, you possess total knowledge of the law. Is it constitutional to hold an impeachment trial for a president who’s left office? And what authority can give the final answer on this?
Dahlia Lithwick: It’s one of several constitutional questions floating around the ether that seem to be answerable largely with a shruggie emoji. Michael Luttig, a distinguished conservative jurist and thinker, published this piece saying it cannot be done. But Steve Vladeck, a distinguished academic and court watcher, responded today with this piece saying it emphatically CAN be done.
Tom Scocca: It seemed like there were a lot of people very confidently saying it was definitely possible to impeach an ex-president, even going back before the coup attempt. And then suddenly in the last few days there’s been a wave of equally confident declarations that it can’t be done. Both sides strike a tone of complete assurance that these have always been the known facts about our constitutional system.
Lithwick: Vladeck cites the case of Secretary of War William Belknap, whose name you will hear a lot in the days to come. In 1876, Belknap tried to resign just before the House voted on his impeachment. The House impeached him anyway, and the Senate ultimately voted to acquit him but first concluded that it had the power to try former officers, so that’s the precedent folks will point to.
Newell: The Senate will presumably decide that it’s constitutional and hold a trial, while Tom Cotton will claim this first-of-many procedural off-ramps to avoid deciding the question on the merits of Trump’s conduct.
Will Saletan: If ex-presidents can’t be impeached, what measures does the Constitution permit—other than prosecution—to prevent a demonstrably unfit president from regaining the office?
Lithwick: So, Will, that question leads us to the wonderful world of Section 3 of the 14th Amendment, which has been floated in recent days as the mechanism that could be used to bar Trump from holding federal office in the future for inciting an insurrection at the Capitol, according to experts who weighed in here and here. House Speaker Nancy Pelosi raised this option in a letter to House members. The Section 3 route would need only a simple majority vote of both houses, compared to the two-thirds vote needed to convict Trump in a Senate impeachment.
I guess my own sense is that this is almost entirely a political issue and the Senate will decide it entirely politically. Which brings us to What Does Mitch Want and How Does He Want It? Seventeen Republicans are not going to pull a Liz Cheney, joining Democrats in voting to convict, right?
Newell: I think it is unlikely that the Senate will get 67 votes to convict. I do think there’s a chance, though, and the key factor in that is Mitch McConnell. If McConnell does vote to convict, as he’s reportedly been entertaining the possibility of, it’s because he’s made the choice that it’s in the GOP’s best interest to make a move against Trump now. If he makes that decision, enough could follow because they trust his political instincts.
I just remain skeptical that, after a trial run by Chuck Schumer, more process complaints and easy off-ramps emerging, and another few weeks of pressure building up in conservative media, it would be tenable for McConnell to convict.
Lithwick: Does the fact that only 10 Republicans emerged yesterday in the House after promises of 20 make you feel that even more strongly, Jim?
Newell: I’ve been watching House Republicans for a while, and I think getting 10 of them is a miracle. But Senate Republicans and House Republicans aren’t the same species. A majority of House Republicans voted to reject Biden electors even after the president sent a mob to attack them; all but seven Senate Republicans voted against rejecting electors. We probably start at three to five Senate Republicans voting to convict.
Scocca: Do you think McConnell steered the whole thing in this direction on purpose, or was he bluffing about having the votes to finish off Trump outright now and this is the fallback plan? Making a move to take down Trump without successfully taking down Trump does not seem like a feat of strategic genius.
Saletan: Right. Jim, do you think McConnell is looking at Liz Cheney as a failed attempt to kill the king (since few other Republicans joined her, and now there’s a push to topple her) and is rethinking his talk of considering a vote to convict?
Newell: I don’t think Cheney was acting out of regicide or thinking she could bring along a critical mass of Republicans. She had had her problems with Trump already, and far-right members of her conference were already skeptical of her. There may be some disturbing Cheneyist reasoning here that I’m missing, but it does seem like a pretty pure vote of conscience.
I think if McConnell decides to kill the king, it will be because he’s secured 17 Republican votes to do so. That will seem harder to do as time goes on. Keep in mind, though, that there’s a lot more we could learn about the Jan. 6 attack in the coming weeks.
Lithwick: Is the calculus for Mitch what is the least I can possibly do to protect my vulnerable members’ wallets while also not upsetting the Trump enthusiasts? If that’s it, his plan will be to either run out the clock or just directly say, “We would have loved to convict, but we cannot since Tom Cotton says it’s too late,” right?
Saletan: I like Jim’s theory about McConnell—that if he decides to kill the king, it’s because he has the 17 votes. So now, instead of asking who McConnell could bring along, we can just watch him as an index of what the secret number is.
Scocca: All of this really highlights how everyone is faking their way through a thoroughly busted and nonfunctional constitutional order. This is why I was disappointed (to my own surprise) when McConnell yanked away the small chance that they could make the soft coup official and allow Mike Pence to formally become the 46th president by impeaching Trump in his last full week in office. I feel like this era really needed to inscribe the awkwardness of a five-day presidency in the history books, just as a final demonstration of how broken things have been.
I never thought I would yearn for a Mike Pence presidency in any form, but having his slab-faced portrait hanging up around the rim of future classrooms on equal footing with Lincoln and Madison and Garfield and Millard Fillmore would be exactly what this country needs and deserves.
Saletan: Part of me hates the 25th Amendment idea because it feels like a soft coup. The other part of me thinks: To handpick your own jury and then get voted out by them, you have to be quite the asshole.
Lithwick: What I hoped for was some kind of swift and decisive anything—even censure—to signal that what had happened couldn’t just be waited out or brazened through. Yesterday’s impeachment hearing proved at least to me that the Jim Jordan wing has hardened and will only harden more on the proposition that brazening through has no cost.
Newell: I’m just trying to think of where we’ll be in early February. Democrats will be writing a reconciliation bill that Republicans will be fully on-message trashing as corrupt. It will be so easy for them to ask why we’re having an impeachment trial about a guy who’s not even in office anymore instead of focusing on COVID or jobs or filling out the administration or what have you. And in that kind of environment, it makes it more difficult with each passing day to get Senate Republicans to join up with Democrats to make Trump the first president impeached and convicted. Keep in mind too that some of the most-likely-to-convict Republicans—Grassley, Portman, Blunt, Lankford—will be in-cycle and facing potential primaries.
So what is Mitch McConnell up to with these little teases about how he might want to convict? Not even Senate Republicans know, frankly. I think he’s mostly mad about Trump costing them Georgia.
Lithwick: It’s just signaling, right? He’s showing Marriott Hotels that he is insert Susan Collins voice appalled and wishes he could do something, but there’s nothing to be done. He hoped it would get Trump to resign, I imagine.
Saletan: What other leverage does McConnell have over Trump? Is that what he’s after? I mean, Trump just threatened Thune, knocked McConnell out of control of the Senate (by costing him the Georgia seats), and is threatening to come back and take down Brian Kemp and others. If you’re McConnell, aren’t you looking for something you can threaten Trump with?
Newell: The leverage would be preventing Trump from ever holding federal office again. But Trump also knows he can make life hell for those who vote against him.
Lithwick: So the only leverage Mitch has is the stuff he refuses to do, but still threatens to do?
Newell: I don’t think he’s made up his mind about what to do.
Saletan: Trump’s campaign and his presidency have been five years of Republican cowardice. And it doesn’t look like his departure from the White House will end that.
Lithwick: We live under the long shadow of vengeful Trump for years to come.
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