I have a growing uneasy feeling about this Senate impeachment process, like the Dems had some dirty trick up their sleeve. Else, why keep pursuing it? I am now expecting a Red Wedding moment.
So then there’s this, from a story in the Washingtonian in October:
Laurence Tribe, a leftist anti-Trump constitutional law professor at Harvard Law School says the bar for impeachment is actually quite low. And possible to attain without a single Republican even voting.
The Constitution doesn’t indicate that removal from office requires two-thirds of the Senate. It requires two-thirds of senators present for the proceedings.
The inclusion of this single word in the Constitution’s impeachment clauses shifts the mathematical ledger of how impeachment, however unlikely, could go down. It allows for the all-important two-thirds threshold to exist along a sliding scale—far from the full attendance of the 100-member Senate. In theory, a vote to convict the President (or anyone else) would count as legal with as few as 34 members, not 67, assuming the absolute minimum (51) participated.
Indeed, looking at the Constitution, the language seems to bear out that opinion:
Article 1, Section 3, Clause 6–“The Senate shall have the 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.”
The Senate’s formal rules on impeachment, last updated in 1986, repeat the Constitution’s “present” provision numerous times.
“It’s a sliding scale,” says Alan Frumin, the former Parliamentarian of the Senate who now holds emeritus status. “In other words, it’s not an absolute two-thirds, it’s two-thirds of some number. And there you get to the question of the denominator.”
And who would stop them? The Supreme Court? Nope. The Supreme Court already ruled on this:
The trial of the impeached officer is held in the Senate. In Nixon v. US, regarding the impeachment trial of a Federal judge, the Supreme Court ruled that the application of the phrase phrase “sole power to try all impeachments” to a particular case was not justiciable. In other words it held that the proper application of this constitutional language to a specific impeachment proceeding was not a question for the courts. Therefore, the process and procedure for impeachment lie solely within the purview of the legislature. The officer subject to an impeachment proceeding has no appeal to a federal court.
Talk about a constitutional crisis.
10 replies on “The Impeachment Loophole No One’s Talking About”
Laurence Tribe is nuts and desperate.
It would take an act of war to exclude the Republicans from the building. The left does not have an army. The transvestite officers Obama raised up are gone. Trump has 99 % military and police support.
There was a previous state impeachment case where the state parliamentarians fled or attempts were made to exclude people from the building. Its more common over seas. Its happened in Australia at the local government level the left wing staffers involved did time in jail.
As a result there are rules & regulations in the USA that Mr Tribe does not want to mention. Although they are not all laws passed by congress they have the force of law and precedent.
All the Senators must attend or face jail. No electronic device is allowed in the room. Staffers are excluded. They will be voting on toilet brakes! The starting presentations will take three days even it its a quick dismissal! Can you imagine a room full of politicians, some of whom are running in primaries and in November, cut off from their campaigns for 8 hours a day!
They are not allowed to call out, clap, etc. They must pass notes to a bailiff get permission to speak. They are going to go nuts.
Expect the Republicans to be on their best behaviour because press cameras will be there. Can the left sit still for hours on end? I suspect there will be a lot of books read in the right, colouring books on the left, and a bunch of people doing Sudoku puzzles. Everyone’s already decided on their vote.
Interesting. But doesn’t this assume that Mitch basically hoses the process. And how do you keep the GOP senators out of the room?
Also, a question I have never seen answered.
Does getting impeached actually preclude PDT from running in November?
Well, people have to go home sometime. just like they passed ObameCare in the middle of the night, they could simply wait until everyone else is home for the holidays, and sneak back in for a vote. Probably nobody on the left would win another election for a generation, but they’d be rid of Trump once and for all.
Could Trump simply re-run in 2020? Nope: The constitution says if you are removed from office as a result of impeachment, you are banned from holding any federal post for life:
But doesn’t Mitch have to call the session to order. If there are 51 senators present, doesn’t seem like they get to just have a vote on whatever they want. He sets the agenda.
Presumably, yes.
The chief justice presides. Mitch steps aside. Excluding Republicans form the room is impossible. People tried this in Australia and Britain a few times and went to jail. One king of England tried that trick Tribe is suggesting and lost his head months later.
I believe it would preclude running for office again. Article 1, Section 3, clause 7. “ 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.”
I thought I had heard that the prohibition to hop office was something the Senate could impose… not a given.
*hold office
Maybe, I don’t know if there’s any precedent on the question.