The majority of Senate Republicans remain every bit as timorous and intellectually slippery as they were in 2020 when they voted to acquit Donald Trump and when they sought to overturn the election, claiming they were merely “asking questions” about the legitimacy of the results. (The way to merely ask questions is to merely ask questions, not to reject the will of the voters.) Hence, you see a flock of Republicans now declare that convicting a president for sedition after he left office is “unconstitutional.” Let’s unpack this.
First, Republicans are wrong. A well-balanced and detailed report by the Congressional Research Service recalls:
The House has never impeached, nor has the Senate ever tried, a former President. However, both chambers have previously determined that they retain power to proceed against an executive branch official that has resigned from office. The principal precedent is the 1876 impeachment of Secretary of War William Belknap. After receiving allegations that Secretary Belknap had received payments in return for appointing an individual to maintain a trading post in Indian territory, the House authorized a committee impeachment investigation that quickly found “unquestioned evidence of malfeasance.” The committee provided that evidence to the House, and though aware that Secretary Belknap had resigned hours before, nevertheless recommended that he be impeached.
The matter went to the Senate, where Belknap avoided the two-thirds majority needed for conviction. While not definitive, according to the CRS report, “a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office.” This is consistent with certain state constitutions “predating the Constitution, which allowed for impeachments of officials after they left office.”
Second, the empty objection to the trial on the grounds that it would set a “dangerous precedent” has it backward. Allowing a president to attempt sedition for the purposes of retaining office with absolutely no penalty would be as frightening an invitation as one could imagine to future presidents and their enablers.
Third, most Republican senators, especially slick lawyers such as Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.), understand both of the foregoing points. However, as we saw from their participation in the sedition (i.e., spreading the Big Lie that the election was stolen and voting to overturn the results), they are desperate to remain in the good graces of the MAGA crowd. They nevertheless appear nervous of being (correctly) identified as ratifying Trump’s sedition. The solution: Stick to the half-baked argument that it is unconstitutional to impeach Trump.
Democrats should call Republicans’ bluff. Present a stipulation as to the facts supported by publicly available evidence: Trump’s baseless attempts to discredit the results even before the election; his statements and tweets inviting the crowd to a “wild” protest at the Capitol; the transcript of the ex-president’s speech on Jan. 6; the recorded statements from members of the mob who believed they were operating under his direction as they understood it; video and audio of the attack; the then-president’s refusal to act for hours to abate the attack (and then his halfhearted attempt to do so when he finally decided to issue a statement); and testimony of lawmakers, staff and the family members of those who died in the chaos. To make this user-friendly, present the stipulation in the form of a five-to-six-minute video, easily accessible for ordinary voters.
“Stipulations can be an important part of any trial, and they certainly have their place here,” says Norman Eisen, who served as counsel to the House impeachment managers in 2020. “But it is also important to put on the full audio-visual evidence of what happened and have every GOP senator relive that, including hearing and seeing all Trump’s incitement on January 6 and in the run-up to it. The nation will be watching, too, and they should experience all that as well.” He adds: “The insurrection and Trump’s role in it are still not fully appreciated. All that can thereafter be reinforced by a set of stipulations.”
Since these facts are not in doubt, call for a unanimous vote putting the Senate on record as to the evidence. Will Republicans flinch from recognizing undisputed facts? It will be a telling moment.
Finally, force a vote on conviction. Whatever lame constitutional arguments Republicans make cannot disguise the import of their vote: They must decide whether to ratify the former president’s sedition. With the vote, we will see the dividing line between the redeemable and the irredeemable Republicans, the decent and the shameless, the pro-democracy and the pro-demagogue parts of the party. Those who think sedition must be punished can then decide if they can remain in a party with who those who are convinced sedition is just another tactic in their authoritarian, white-supremacist handbook.
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