Senate Republicans, still terrified of Trump, make up constitutional arguments to protect him
On Monday evening the House will transmit to the Senate the article of impeachment to prevent Donald Trump from ever being in a position to destroy democracy again. Senate leaders have reached an agreement to begin the hearings on February 8. Most Republicans there are not so sure that inciting a violent insurrection against the very body in which they sit is such an impeachable thing. Not that they want to argue about Trump, because they actually did live through that terror that left five people dead, but they need a straw to cling to to avoid dealing with him. And his supporters. So they’ve made up a new thing: it’s unconstitutional to impeach him.
Never mind that there is precedent for impeaching a former federal officer, and that the weight of scholarship on the issue supports it, even though the Framers did not make it explicit in the document itself. Probably because they couldn’t possibly envision a Senate so thoroughly corrupted they’d be on the side of Trump. So you have the likes of Arkansas Republican Sen. Tom Cotton, who opines “The Senate lacks constitutional authority to conduct impeachment proceedings against a former president. […] The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens.” He’s presuming to speak for the Founders, who spoke for themselves, and that’s not what they said.
For example, President John Quincy Adams: When the House was debating its authority to impeach Daniel Webster after the fact for conduct while he was secretary of state, Adams said “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.” The reality is, the Framers left this ambiguous, but they also left the Senate the power to do what they need to do. One, at least, foresaw what could be coming someday.
Here’s Alexander Hamilton: “When a man unprincipled in private life[,] desperate in his fortune, bold in his temper […] despotic in his ordinary demeanor—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.'” There’s one Framer who would surely want Trump cut off from any possibility of future office.
Of course, not all Republicans are making this bad faith argument. Others are trying to play the “unity” card. Like Florida Sen. Marco Rubio who got bogged down on Fox News, of all places, arguing that the impeachment is “stupid” even though Trump “bears responsibility for some of what happened.” Which part he doesn’t make clear. Maybe the five dead people? The one senator who voted to convict Trump last time around (that whole extorting Ukraine to get dirt on Joe Biden to throw the election for Trump—there’s a theme developing here) says there’s no question he should be impeached. “I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense,” Sen. Mitt Romney said Sunday. “If not, what is?”
Meanwhile, the trial doesn’t start for another two weeks, and the evidence against Trump just keeps increasing, from his machinations in the Justice Department to try to overthrow Georgia’s election to his campaign’s orchestration of the rally that Trump whipped up into an insurrection. Five people were killed in the insurrection, a cop died by suicide in the aftermath, and 139 U.S. Capitol and D.C. police were assaulted and/or injured in the attack. That evidence, and more, will be presented to the Senate and the American people, along with hours of video of the attack. Republicans might think now that they can make vague arguments about the Constitution, but in the face of the horror inflicted on the nation, their arguments are going to prove pathetic at best, treasonous at worst.