We begin 2021 where we began 2020: an impeachment of the President of the United States.
But the distance from where we launch articles of impeachment in 2021 compared to 2020 is galactic.
House Speaker Nancy Pelosi (D-CA) is clear that if Vice President Pence and the cabinet don’t invoke the 25th Amendment to remove President Trump from office, the House will impeach him this week.
Pelosi said the President "must be held accountable." She noted that her phone was "exploding with ‘impeach, impeach, impeach.’" She said if Pence and the Cabinet don’t act to gut Mr. Trump of his powers, the House will "proceed with our action."
Rep. Jamie Raskin (D-MD) crafted the sole article of impeachment for the President. It alleges that President Trump is "in violation of his constitutional oath faithfully to execute the office of President of the United States." The article declares that "Donald John Trump engaged in high Crimes and Misdemeanors by willfully inciting violence against the Government of the United States."
Raskin’s article spells out how Mr. Trump stoked the crowd he addressed last week and "reiterated 25 false claims that ‘we won this election, and we won it by a landslide.’"
The article charges that the President "encouraged and foreseeably resulted in imminent lawless action at the Capitol" and "incited" a "mob" to breach the Capitol, "menaced Members of Congress and the Vice President" and "interfered with the Joint Session’s solemn constitutional duty to certify the election results."
The article flags the President beseeching Georgia Secretary of State Brad Raffensperger to "find" more votes. The article accuses the President of disrupting "the peaceful transition of power and imperiled a coordinate branch of government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States."
After Congress finally certified the Electoral College results in the wee hours of January 7, the House was scheduled to be out of session until the inauguration later this month. But that’s out the window.
"It is clear that, once again the Times Have Found Us to save our democracy," wrote Pelosi to Democrats.
Articles of impeachment don’t require weeks of interviews, depositions, investigations, hearings and floor debate. The House quickly crafted an impeachment article. It goes to the floor for debate and vote. It’s as simple as that. And if a simple majority of the House votes yes, President Trump is impeached.
Again.
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Democrats view the President’s January 6 speech as so malignant - triggering the sacking of the Capitol - that they must call him out. That’s to say nothing of politically forcing Republicans to take a challenging vote. They’ll be on the record, through a roll call vote, either defending or breaking with the President. Moreover, Democrats would love to tar President Trump with a double impeachment whammy.
And yes. The House can impeach someone twice. And the Senate can even launch an impeachment trial after the President vacates his office.
The House has impeached 20 officials. Three were Presidents. But in the late 1790s, the House impeached Tennessee Senator William Blount twice.
Blount is the only figure the House has double sanctioned.
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President John Adams learned in 1797 that Blount offered Great Britain help to seize parts of what would later become Louisiana and Florida. Spain controlled those regions then. Blount worried about Spain ceding the land to France. That would hurt his business dealings. So Blount tried to work with the British.
The House impeached Blount. But rather than conducting an impeachment trial, the Senate kicked him out first.
Displeased at the Senate’s approach, the House again impeached Blount in January 1798.
You want to know how Congress started blowing up Christmas and New Year’s in spectacular fashion each year? Look to the Senate impeachment trial of Blount. It began on Christmas Eve Day, 1798. But, Blount was no longer a senator. But by January, 1799, the Senate finally dispensed with Blount’s trial. Senators first voted down a resolution that he be tried because he had been a U.S. senator. The Senate then adopted a second resolution. Senators decided they lacked jurisdiction to try Blount at all.
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It’s unclear how the Senate might approach a trial if the articles arrive after President-elect Biden takes office.
If the House impeaches, it must also approve a resolution to send the article to the Senate and dispatch House "managers" to "prosecute" the case before the other body. House Intelligence Adam Schiff (D-CA) served as the lead impeachment manager a year ago.
You may recall that Pelosi held the impeachment articles for several weeks after the House voted to impeach President Trump in December, 2019. The House didn’t vote to send the articles to the Senate until January, 2020. So, with the inauguration looming on January 20, it’s hard to see how a Senate trial unfolds in earnest until after the President’s term concludes.
But the Senate will likely have to address the impeachment article in some fashion – on either end of January 20. Senate Majority Leader Mitch McConnell (R-KY) told Republicans in a memo to expect a trial to begin around January 19 or 20. And, the Senate has to take it up. Senators can’t filibuster the start of a trial. And, the beginning of a trial really isn’t contingent on which side is the majority or minority.
Senate Impeachment Rule I states that once the House votes to appoint managers "The Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment."
This means that the Senate must approve a resolution, indicating it is prepared to receive the House’s articles. The Senate can’t get the articles until it acts. The House cannot send the articles across the Capitol until the Senate says it’s ready.
The Senate then usually sets a time/date to receive the articles in that resolution.
Senate Impeachment Rule II says "When the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment against any person, the Presiding Officer of the Senate shall direct the Sergeant at Arms to make proclamation, who shall, after making proclamation, repeat the following words, viz: ‘All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against_______ ______’; after which the articles shall be exhibited, and then the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment, of which due notice shall be given to the House of Representatives."
In other words, the Senate gets the articles at that stage. Acting Senate Sergeant at Arms Jennifer Hemingway announces the "exhibition of the articles." The articles are read before the Senate and the impeachment managers are recognized.
At that point, the Senate trial is technically underway. This is the first step in the Senate trial.
The Senate could approve a resolution dictating how to handle the trial. That would involve a timeframe and the potential to entertain witnesses and evidence. The Senate adopted a resolution establishing parameters for President Bill Clinton’s trial in 1999. McConnell’s memo notes that it’s not clear whether United States Chief Justice John Roberts would preside if it’s the trial of a former President.
But, if the Senate fails to agree to any "special rules," ala the Clinton model, then Senate Impeachment Rule III kicks in: "Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock after noon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful. Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the oath herein after provided to the Members of the Senate then present and to the other Members of the Senate as they shall appear, whose duty it shall be to take the same."
In other words, the Senate meets six days a week at 1 pm et for a trial. At the end of the trial, it takes a two-thirds vote to convict the President. One wonders how this could interfere with the confirmation of President-elect Biden’s cabinet.
Let’s go back to the second impeachment trial of William Blount. The Senate eventually voted to dismiss the articles since Blount was no longer a senator. Conceivably, the same could happen if a Senate trial occurred after President Trump leaves office.
However, there’s even a modern precedent for that.
In July, 2009, the Senate was about to consider articles of impeachment against Federal Judge Samuel Kent. But before the Senate trial began, Kent resigned. Still, the Senate had to somehow, parliamentarily dispense with the articles. So the Senate voted to dismiss the case since Kent stepped down.
It’s possible there could be a similar effort to flush a Senate trial of President Trump after he’s out of office. However, Democrats would also like to get Republicans on the record as to whether they were for conducting the trial or dismissing it.
So we began where we were in January, 2020. But yet in such a different place.
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