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A solution to the Trump impeachment dilemma


OK so this is happening:

House Democrats plan to send the article of impeachment against former President Donald Trump to the Senate on Monday, but the start of arguments in the Senate’s impeachment trial won’t begin until February 9, giving the Senate time to confirm President Joe Biden’s Cabinet.

Under an agreement between Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell that Schumer announced Friday evening, the Senate would take up the ceremonial functions of the trial Tuesday, the day after the articles are transmitted to the Senate. Then the House and Trump’s legal team would have two weeks to submit pre-trial briefs, with the trial itself beginning on February 9.

A delay to the impeachment trial makes sense for Democrats because the trial threatens to stall the confirmation of Biden’s Cabinet, as Senate Republicans said Friday they would not allow the Senate to confirm nominees at the same time the trial is going on. The trial’s timing one of several logistical hurdles the Senate is tackling amid broader negotiations between Schumer and McConnell over how the 50-50 Senate will be governed.McConnell proposed Thursday pushing the trial back until mid-February, a week later than the agreement.

I think there’s a pretty obvious and elegant solution to the conundrum facing Senate Republicans, which is that while almost all of them no doubt want to get rid of Donald Trump, they can’t do so straightforwardly without enraging their fascist base.

The solution is simply for 25 of them to announce that as a matter of High Constitutional Principle they cannot participate in this farcical proceeding, that purports to remove a president who is no longer in office, an act which violates every precept of Anglo-American jurisprudence as enumerated by William Blackstone, Lord Coke, the Beowulf poet etc. etc.

Since conviction merely requires a vote to convict by “two-thirds of the Members present,” this will allow Trump to be convicted with minimal or even possibly no affirmative GOP participation.

BTW on a side note, I would argue that if the Senate convicts and then subsequently votes to disqualify him “to hold and enjoy any Office of honor, Trust or Profit under the United States,” (this would probably only require a majority vote), this would bar Trump from receiving any benefits under the Former Presidents Act — these add up currently to more than a million dollars a year each for Bush, Clinton, and Obama — since the Office of the Former President is such an office. (If Trump had been removed while still in office he would automatically lose the benefits of the FPA, by the statute’s own terms).

On a further note there’s no provision in federal law to keep Trump from choosing to have the government rent at “market rates” an entire building owned by the Trump Organization, to house his post-presidential offices, as is his right to do so under the FPA (since the passage of the FPA in 1958, the only limits on these rental arrangements between former presidents and the federal government have been customary rather than legal).

Of course this solution would lead to all sorts of litigation, which since it would drain Trump’s rapidly contracting coffers is yet another reason to do it.

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