TUESDAY, JANUARY 26, 2021
We humans just wanna have fun: Can you remember Donald J. Trump?
In a way we find comical and relaxing, he hasn't just been removed from office by the tyranny of the passage of time. Thanks to actions by Facebook and Twitter, he's been effectively muzzled!
We've found that state of affairs relaxing and wonderfully comical. But, as has been widely reported, nothing gold can stay!
We can't seem to leave well enough alone! In this morning's New York Times, a letter writer complains about the former commander's upcoming Senate trial:
LETTER TO THE NEW YORK TIMES (1/26/21): Once again, my beloved Democratic Party is snatching defeat from the jaws of victory. Instead of focusing on the important issues, like Covid and the economy, it chose to allow Donald Trump the chance to again gain the spotlight. For him, all publicity, good or bad, is good. He should have been able to slink away into an ignominious night, and the country could have had the great pleasure of no longer hearing his name in every newscast and publication.
The Democrats should have chosen to censure him in a bipartisan vote. Then he would have left his term in shame and President Biden would have had a less divided Congress to work with him on his appointments and proposals. Instead Mr. Trump will probably be acquitted by the Senate, and will claim a great victory, which could relaunch his political career, or at least further endear him to his base. What were the Democrats thinking?
We're inclined to agree with the letter writer. That said, what were (and are) the Democrats thinking? In this morning's Washington Post, a front-page report helps us know:
KIM ET AL (1/26/21): Democrats and some Republicans, such as Romney, have said they believe a former president can be impeached. But other GOP senators who were infuriated by Trump’s conduct but nonetheless do not feel compelled to convict a president who is no longer in office have suggested the move may not be constitutional.
“It makes no sense whatsoever that a president or any official could commit a heinous crime against our country and then defeat Congress’s impeachment powers by simply resigning so as to avoid accountability and a vote to disqualify them from future office,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said.
Absent the part about disqualification, Schumer's logic may be lacking. Here's why we say that:
If a president "commits a heinous crime," he can be prosecuted for that crime after resigning from office. The criminal penalties he would face for his heinous crime would carry a great deal more "accountability" than a toothless conviction in the Senate after he's already left office.
At that point, up jumps the second part of Schumer's vision:
He pictures Trump being convicted by the Senate, then being disqualified from ever holding federal office again. For current denizens of Our Town, tis an imagined consummation devoutly to be wished.
Almost surely, no such votes will ever occur. There will be no Senate conviction in the upcoming trial, in part because of the possibility of that subsequent disqualification vote.
Still, we beat on against the current here in Our Town, borne back ceaselessly into the past.
The letter writer is clearly right in one way. The former commander has largely been silenced—but we propel him back into cable discussion by Our Town's current desire to make the rubble bounce.
It's also true that an "acquittal" in the impeachment trial will create a useful talking-point for the former commander. Today, though, we focus on a few basic questions:
How do we know that the Senate has the constitutional right to "disqualify" Trump from holding future office? Where's the evidence for that assertion?
As always, the story is being told in a thoroughly standard way. The Senate can, by a two-thirds vote, convict a president who's been impeached and thereby remove him from office. (In this case, from an office he no longer holds.)
According to the standard narration, the Senate can then vote, by a simple majority, to disqualify a convicted president from holding any federal office ever again. This morning we ask a simple question:
Where is the constitutional language which asserts any of that? And how clear is any such language?
Trust us—we've tried to find that language. By standard agreement, the searcher will be directed first to Article 1, Section 3, which murkily says this:
The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgement 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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
That passage is always cited, As you can see, it includes an extremely murky clause.
Plainly, the Senate rules on all impeachments. Plainly, conviction in such a trial requires a two-thirds vote.
Plainly, if the president is being tried, the Chief Justice must preside. That said, people who hold other offices can also be impeached and tried. In part, that's where the apparent murk comes in.
Where does that passage say anything about holding a second vote? Where does it say that this unmentioned second vote would require only a simple majority?
Also, why doesn't the murky, highlighted language mean that a convicted official will automatically be disqualified from holding future office? Why do we think that a second vote would be required at all?
(Also, is it clear that the murky language refers to holding future office? How do we know it doesn't clumsily mean that the convicted party will be disqualified from holding whatever office he held at the time of conviction?)
The highlighted language is strikingly murky. Within the longer passage, the vote to convict is clearly defined, but there's no mention—none at all—of any second vote.
As best we ca tell, the concept of a second vote has largely been drawn from thin air, starting with something "the Senate determined" in 1862. The Senate made this determination at the height of the Civil War, when it was removing a Johnny Reb from office.
For now, consider the ridiculous modern-day consequence of that ancient determination. In Schumer's portrait, fifty Democratic senators will soon be able to pass a vote to keep the most popular Republican pol from running for president in 2024.
Our view? If the sheer absurdity of that prospect doesn't grab you, perhaps the murky constitutional language will.
Schumer imagines a glorious action. Dreams of this glorious action are widespread here in Our Town.
What we haven't yet seen is this. We haven't seen anyone try to explain how we know that some such second vote would be constitutionally permissible. We also haven't seen anyone note that the general prospect, in which one party can disqualify the other party's most popular pol, doesn't quite exactly sense.
For today, we link you to Ian Millhiser's attempt to explain this matter at Vox.
According to Vox, Millhiser got his law degree in 2006 from Duke Law School, "where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif." Two weeks ago, he authored a lengthy attempt to explain the possible vote for disqualification.
Millhiser writes at length. But in the end, this is the best he can do concerning our central questions:
MILLHISER (1/13/21): The Constitution is silent on whether, after an official has already been impeached and removed from office, imposing the additional sanction of disqualification requires a supermajority vote. In the past, however, the Senate determined that a simple majority vote is sufficient for disqualification. Judge Archibald was disqualified by a vote of 39-35 after he was removed from office.
The Supreme Court has not ruled on whether simple majority vote is sufficient to disqualify someone from public office after they’ve already been removed. Humphreys and Porteous were both disqualified in supermajority votes, and Archibald never brought a case before the Court that could have allowed the justices to rule on how many votes are required to disqualify a public official.
Nevertheless, there is a strong constitutional argument that the Senate should be allowed to disqualify an individual by a simple majority vote, after that individual has already been convicted by a two-thirds majority.
According to Millhiser, "The Supreme Court has not ruled on whether simple majority vote is sufficient." As best we can tell, the Supreme Court also hasn't ruled on whether this type of disqualification is permitted at all.
The "strong argument" cited by Milhiser seems rather weak to us. He never explains how he knows that the murky language in question should be taken as directing some type of second vote.
As Millhiser notes, only three officials in American history have ever faced this second vote. None of the three ever challenged his disqualification in court.
The former commander surely would; this would visit him on us further. Still, we beat on ceaselessly. Another letter in today's Times explains why:
LETTER TO THE NEW YORK TIMES (1/26/21): Since the Republican defense team certainly won’t call Donald Trump as a witness at the Senate impeachment trial, the Democratic prosecutors should subpoena him. Now lacking presidential privilege, he could assert his Fifth Amendment rights and refuse to testify. Or he might follow his instincts and try to defend himself. That should be fun!
So cool! We could subpoena the former commander—bring him forward in chains! The excitement would animate cable news. Like some denizens of Our Town, cable news mainly wants to have fun!
We've seen no one address the points we've offered. According to various experts and scholars, at times when tribes are drifting toward war, our minds aren't wired for that.
What is truth, a great jurist once asked. Anthropologically speaking, to what extent are we the humans wired to care about that?
Tomorrow: Ebert and Gibson, three stars