There are Questions as to How Senate Democrats Can Bar Trump from Running in 2024

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Posted: Jan 12, 2021 1:20 PM
There are Questions as to How Senate Democrats Can Bar Trump from Running in 2024

Source: AP Photo/Julio Cortez

What happened last week was a fiasco. It was chaos. It was a riot. Granted, I’m not shocked. The rise of populism in this country after Congress’ serial failure to serve the needs of the American people can be traced back to 2010 and the Tea Party wave. You can be horrified, but not shocked. And it’s all bad. Either way, you cut it, there’s no winning here. Trump will be gone on January 20, five people are dead, those involved in the storming of the Capitol Building are being arrested one-by-one, and all the good Trump did will be overshadowed by this incident. The media will have a field day and the social media giants who arguably have way too much power have begun to purge conservatives from their platforms. 

On the Hill, House Democrats are mulling impeachment again. This time will be different. For starters, they have the votes—and there will be Republican support for it. The same goes for the Senate. Mitt Romney should be happy. He won’t be the lone squish on this anymore. Sens. Pat Toomey (R-PA), Susan Collins (R-ME), and Lisa Murkowski (R-AK) will join him. That leaves 13 Republican Senators to clinch the two-thirds vote for conviction. 

Can Trump still be impeached after January 20? There’s no real solid precedent for this, but some have argued that yes—this can happen. So, the House will vote to impeach. How will the Senate respond? They need to hold a trial. Well, a post-9/11 resolution could convene a speedy impeachment trial (via WaPo):

Senate Minority Leader Charles E. Schumer (D-N.Y.) is exploring using an obscure, post-Sept. 11-era authority to reconvene the Senate as the House barrels toward a likely impeachment vote of President Trump this week, according to a senior Democratic aide.

In 2004, the Senate majority and minority leaders were given the power to bring the Senate back into session in times of emergency, and the senior Democratic aide said Schumer is exploring this option to allow for a potential impeachment trial for Trump to begin immediately after the House transmits the articles to the Senate. The aide spoke on the condition of anonymity to discuss evolving party strategy.

Schumer’s exploration of this option is one way the incoming majority leader is rebutting an argument laid out by his counterpart, Mitch McConnell (R-Ky.), who told GOP senators in a memo last week that it was virtually impossible to begin an impeachment trial before Jan. 19, which is when the Senate reconvenes.

Both McConnell and Schumer would have to agree to reconvene the Senate, putting pressure back on the outgoing majority leader to confront Trump as the House heads toward an impeachment vote this week for the president’s role in inciting the violent siege on the Capitol on Jan. 6.

The resolution, which passed the Senate unanimously in February 2004, allows the chamber’s majority and minority leaders to reconvene at a time when, “in their opinion, such action is warranted by intervening circumstances,” according to a legislative summary.

Trump is gone soon. That’s not the point here. It’s barring him from ever holding elected office again. Still, finding 13 GOP votes will be a tough mountain to climb. But let’s say that happens. We have yet another question regarding barring him from holding office. The Constitution has no indication that the two-thirds threshold is required for that measure (via Time):

If Senate Democrats do manage to get those votes and convict Trump, there is some ambiguity about the separate vote that could disqualify him from public office. The Constitution doesn’t prescribe a two-thirds majority vote for that, and in the past, the Senate has used a simple majority for disqualification. (The Senate has only ever disqualified three people from holding future office, and all three of them were federal judges.)

The Supreme Court has never ruled on whether a supermajority vote of two-thirds is required for disqualification. If the Senate were to vote to disqualify a President from future office with a simple majority, it would be the unprecedented, and it could set off a high-stakes battle in the courts.

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Some scholars argue that holding a trial after Trump is out of office would be permissible. “The special penalties upon conviction in impeachment are designed to protect the republic from the very type of people who have abused public office in such a grave manner that they should never have the opportunity to be entrusted with public power again,” Michael J. Gerhardt, professor at UNC School of Law, wrote recently in Just Security. “It would make no sense for former officials, or ones who step down just in time, to escape that remedial mechanism.”

But not all experts agree, and no court has definitively ruled on whether the impeachment process could extend after a President leaves office. Any attempt to do so could result in a pitched legal fight.

It’s quite possible this push again falls short in the Senate, paving way for Trump to make a comeback in 2024 should he choose. And yes, Trump could potentially still be a field clearing candidacy the likes of which Jeb Bush could only dream about. Even with the Capitol Hill riot, the era of Trumpism has begun in the Republican Party. We’re still in the populist moment and this shift isn’t unique to just Republicans. On the Democratic side, there’s a vocal, passionate, and active left-wing populism giving the base a jolt as well. Both sides agree that the system is corrupt. Both sides hate the elites. Yes, Trump could run again in 2024. And he’ll probably win the nomination handily. As for the general election, well, let’s revisit that—all of this actually—in four years.