The first question to be debated Tuesday in the opening hours of the impeachment trial of former President Donald J. Trump will be whether it is constitutional to bring an impeached former president to justice.
The policy around the issue is significant. Republicans argued the procedure was unconstitutional and in doing so avoided questioning whether Mr. Trump had committed any unforgivable offenses in his role in the Capitol Riot.
Senate Republicans who voted last month to dismiss the lawsuit as unconstitutional were pressured Sunday to reassess their position when a prominent Conservative constitutional lawyer, Charles J. Cooper – who has been a close ally and adviser to Senators Republicans like Ted Cruz of Texas – argued in a Wall Street Journal editorial that their claims about the constitutionality of the process were unfounded.
The Senate set aside four hours to debate this issue on Tuesday. Here’s what you need to know.
What did the Republicans say?
House Democrats, who were joined by 10 Republicans, voted to impeach Mr. Trump a week before he left office for “incitement to insurgency.”
Impeachment put pressure on Republicans in the Senate to condone or repudiate Mr. Trump’s conduct. Some put the issue aside to focus instead on the process itself, arguing that whether or not Mr. Trump’s actions constitute serious crimes and misdemeanors, the Senate could not try him because the Constitution does not. not allow a former president to be tried for impeachment.
Two weeks ago, Sen. Rand Paul of Kentucky forced a vote on the issue, moving to challenge the lawsuit as unconstitutional. All but five Republicans sided with him. Democrats and constitutionalists responded by saying Republicans were simply clinging to a politically expedient argument to avoid crossing paths with Mr. Trump, who remains popular among Republican voters.
- A trial is underway to decide whether former President Donald J. Trump is guilty of inciting a murderous mob of his supporters when they stormed the Capitol on January 6, violently violating security measures and sent lawmakers went underground as they gathered to certify President Biden. victory.
- The House voted 232 to 197 to approve a single article of impeachment, accusing Mr. Trump of “inciting violence against the government of the United States” in his quest to overturn the election results. Ten Republicans joined Democrats in voting to remove him.
- To condemn Mr. Trump, the Senate would need a two-thirds majority to agree. That means at least 17 Republican senators would have to vote with Senate Democrats to be convicted.
- A conviction seems unlikely. Last month, only five Republicans in the Senate sided with the Democrats in pushing back a Republican attempt to dismiss the charges because Mr. Trump is no longer in office. On the eve of the trial, 28 senators say they are undecided on whether to convict Mr. Trump.
- If the Senate condemns Mr. Trump, convicting him of “inciting violence against the United States government,” then senators could vote on whether to prevent him from performing his future duties. That vote would only require a simple majority, and if it were party lines, Democrats would win with Vice President Kamala Harris voting for the tiebreaker.
- If the Senate does not condemn Mr. Trump, the former president could again be eligible for public office. Public opinion polls show he remains by far the most popular national figure in the Republican Party.
Democratic House impeachment officials are expected to broadly argue that a president can stand trial for power offenses, regardless of the date of trial. Otherwise, say Democrats, there would be no way to hold a president to account who does wrongdoing in the final weeks of a term.
“The drafters of the Constitution feared a president who would corrupt his office by sparing ‘no effort and no means to be re-elected'”, wrote the nine persons in charge of the indictments last week. “If provoking an insurgent riot against a joint session of Congress after losing an election is not an impenetrable offense, it’s hard to imagine what it would be.
Mr. Trump’s lawyers will likely present the narrowest and most technical argument that the Constitution prohibits a former president from being tried.
“The United States Senate does not have jurisdiction over the 45th President because he does not hold any public office from which he can be removed, which makes the impeachment article moot,” Mr. Trump, Bruce L. Castor Jr. and David Schoen. in a 14-page response to House Directors last week.
In the opinion piece, Mr. Cooper echoed the Republicans’ contention that since the penalty for an indictment conviction is removal from office, it was never intended to apply. to a former president.
Mr. Cooper argued that the Constitution gives the Senate the power to prohibit sentenced officials from returning to office. “It flies in the face of logic to suggest that the Senate is prohibited from trying and convicting former office holders,” he wrote.
Mr Cooper said that since Republicans voted on the issue last month, legal science has evolved and “revealed the serious weakness” of their argument.
“The senators who supported Mr. Paul’s motion,” he wrote, “should reconsider their point of view and judge the former president’s misconduct on the merits.”
Much of Mr. Cooper’s career has been focused on advancing the Conservative constitutional legal movement. As a senior Justice Department official in the Reagan administration, he wrote an opinion on whether employers could refuse to hire someone who might have AIDS, which has been criticized as discriminatory . As a private lawyer, he has represented the National Rifle Association, school prayer advocates, and advocates for the California gay marriage ban.
Senators will vote on the matter.
Democrats seized on Mr. Cooper’s coin to bolster their case against Mr. Trump on Monday.
“It‘s not a liberal, it’s Chuck Cooper – a lawyer who has represented House Republicans in a lawsuit against President Pelosi, a former presidential campaign adviser to Senator Cruz – who is putting a stake in the matter. ‘central argument we’re going to hear from the former president’s lawyer, ”New York Senator Chuck Schumer, the Democratic leader, in a Senate speech.
The impact of Mr. Cooper’s opinion piece will be measured on Tuesday when Republicans are asked to vote again on the issue. Some senators have said privately that they were caught off guard by last month’s vote on the issue after Mr. Paul raised it and said he was prepared to debate and consider the constitutional question. Others – like Rob Portman of Ohio and Bill Cassidy of Louisiana – said they voted against the measure because they wanted to force a wider debate on the issue.
Mr. Cooper’s conservative credentials and the decision to publicly state his case will likely cause some senators to at least consider his point, according to Steven Teles, author of “Never Trump: The Revolt of the Conservative Elites” and professor. at Johns Hopkins University.
“It makes it harder for them if Chuck Cooper is out there saying, ‘Come on, come on,’ said Mr. Teles, who is also a senior researcher at the Niskanen Center think tank in Washington. “Everyone would like to avoid all the tough questions by making a procedural argument. It’s harder to dodge if a conservative legal authority is there to say you can’t avoid the issue.