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Inside the Grim Impeachment Encore

The country is on high alert as Trump is lashed once again by the House.

US President Donald Trump boards Air Force One before departing Harlingen, Texas on January 12, 2021. (Photo by MANDEL NGAN/AFP via Getty Images)

President Donald Trump was impeached for the second time in less than a year this week, as the nation reels from the lethal Jan. 6 attack on Capitol Hill.

Impeachment is a political-legal process and he was charged with a single count: inciting insurrection. After the storming of the legislature, which resulted in the deaths of five, Trump says he’ll go quietly from office, though he still questions the validity of the election results. 

Sen. Mitch McConnell’s office told prominent Trump ally Sean Hannity that the earliest an impeachment trial could be begin is 1PM on Jan. 20, an hour after President-elect Joe Biden is to be ushered into power. 

At issue is the fate of President Trump and his political movement that commands the support of still tens of millions. His presidency now ends — and this is extraordinary — with more questions than it began. 

First, will the Senate really take this up? Impeachment has customarily been understood to be a process to remove a sitting president, not convict a former one— or bar him from federal office, as is proposed by the count of the indictment. 

Senior administration officials have drawn solace in recent days by the arguments of J. Michael Luttig (a conservative jurist who has crossed Trump before) who says it’s a no-go. “The Constitution itself answers this question clearly . … Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.” 

“Article I, Section 3 provides in relevant part: ‘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,’” Luttig writes.

Luttig concedes the matter is unprecedented but drops hints of his intel on the Supreme Court, now more conservative than it’s been in generations. (Luttig, a well-connected, former Fourth Circuit judge, was once primed for the Court himself). “It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not.”

Luttig says that the Trump will not be barred from federal office, when it’s all said and done, because the impeachment trial must be constitutional, which he and many conservatives believe it is not.

Of course, this may not stop the trial from happening, anyway, only to be later invalidated by the Court. And, of course, top liberal jurists and academics disagree with Luttig. 

And of course, further events may intervene.

Trump’s old nemesis, former FBI director James Comey, is urging Biden to pardon Trump, and though he believes Trump belongs in jail (he could be charged in manifold matters unrelated to this impeachment), he’s suggesting Biden not pursue the matter for the good of the country. 

Comey’s penchant for seemingly involving himself in any political matter he can, and this latest suggestion being archetypical, was mocked on social media.  

Biden takes crossover Republican figures like Comey very seriously. It’s a tact mocked by the younger, more aggressive left, but Biden was distinctively the most interested of the major Democrats who ran in bipartisanship. 

It is unlikely, but possible that Biden goes one further once he’s president, and calls off the dogs. He may eventually lend his support to deprioritizing continuing with the Trump show. Biden has wanted to be president for over fifty years. Does he want his presidency to be utterly defined by the previous one?

He may not have a choice. Trump, through his own legal and financial problems — and continued lust for celebrity and attention — is poised to be the most influential ex-president in history, at least at first. Fresh polling done by Axios lays bare Trump’s continued grip on his party, even as he suffered ten defections this week in the House on the impeachment matter. 

There are ideological implications here. Is the future of Republican House leadership, Liz Cheney, who backed impeachment to the hilt? Or is it Kevin McCarthy, the minority leader, who condemned Trump’s conduct but stopped short of lending support to a swift, possibly pointless indictment? Is the future of young Republicans, Rep. Peter Meijer, who joined with Cheney? Or is it Sen. Josh Hawley, who was a vociferous, now notorious champion of Trump’s voter fraud messaging? Or is it somewhere in between?

Fifty-seven percent of Republican respondents told Axios that Trump should still be the 2024 nominee for president. But, of course, as Trump now knows: things can slip from his control in an instant.

about the author

Curt Mills is Senior Reporter at TAC covering national security, the Biden White House and the future of the Republicans. He has reported for The National Interest, U.S. News & World Report, Newsweek, Washington Examiner, UnHerd, the Spectator, among others. He was a 2018-2019 Robert Novak Journalism fellow, and has been a fellow at Defense Priorities and the Claremont Institute. He is a native and resident of Washington, D.C.

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