If you’re a savvy investor, you might want to buy stock in fake mustache companies over the next few weeks as Republicans in Congress attempt to avoid detection.
Even if you are lucky enough to spot any GOP members of Congress, they will likely scurry away rather than face questions about the impeachment investigation against Donald Trump that Nancy Pelosi announced on Tuesday. If things really get bad, Senate Republicans might have to disappear to a place where they know they won’t be seen by anyone, like giving speeches at the Emmy Awards.
National Review’s Jim Geraghty has supplied these shy representatives with an easy out. Sayeth Geraghty:
Congressional Republicans will have an easy lay-up: “While I find the description of the president’s actions troubling, we are just months away from the election. I believe this is a matter best left for the American people to judge at the ballot box.”
If only it were that simple.
Even after Pelosi’s announcement of an inquiry, and even after Trump released the memo detailing his conversation with Ukraine President Zelensky, it seems that we are still far removed from a formal impeachment by the House and even further from Trump’s potential removal by the Senate. Much like football announcers reminding us that calls need indisputable visual evidence to be overturned, we are about to be constantly reminded that “impeachment” by the House is not the same as removal by the Senate.
But what if the Senate did determine that Trump outsourced American political muckraking to Ukraine and held back hundreds of millions of dollars in aid to get it done? Let’s say, hypothetically, that evidence uncovered during the House’s impeachment inquiry really uncovers bright-line lawbreaking.
If that is the case, the Senate couldn’t simply just wave off the evidence by citing the upcoming election. That’s because when removing a president, the Senate has two determinations to make: Whether the president should go, and whether he or she should ever be allowed to hold office again.
Article I, Section 3 of the Constitution says:
Judgment 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, judgment and punishment, according to law.
The Founders determined that an impeachment trial not only decides whether a president should continue to hold office, but whether they are eligible to “enjoy any office of honor, trust or profit under the United States.”
This is why the Senate likely couldn’t duck the question if the House votes to impeach Trump. The question wouldn’t be whether voters should support Trump in the next election, the question would be whether he could even run for election.
If the House does impeach Trump, Senators may see evidence that they can’t unsee and vote him out. Or, in a more crass calculation, they may decide running for their own seats on a ticket with a badly damaged president might cost them their own careers and remove him just for that.
But in doing so, they would have to make a dual judgment – should Trump go, and should he be allowed to run again?
It is unclear whether the Senate would somehow be able to divide those questions (the issue came up twice following convictions of impeached judges), but doing so would set up a ridiculous charade. If senators somehow removed Trump from office but declined to bar him from holding future office, it could set up the unprecedented prospect of a president who has been removed from office running for election just months after his ouster.
As Amber Phillips writes in the Washington Post, “we’d probably all be armchair-interpreting the Constitution to figure that one out.”
No, if the House sends an impeachment recommendation to the Senate, the decision won’t be to “let the people decide.” The public doesn’t get to vote on whether they think, for instance, Martha Stewart should go to prison – the process determines the outcome when someone has broken the law. This isn’t an episode of America’s Got Corruption.
Thus, the Senate will have to make a determination whether the law means anything – if they let Trump’s transgressions go, they will be just as guilty as he is.
If the Senate ends up with an impeachment in its lap, it sets up a binary choice. Senators can either ignore the recommendation, infecting themselves with the poisonous corruption Trump has foisted upon politics, or they can permanently remove him from office, casting the electoral system into an unprecedented chaos.
Let us pray they choose wisely.