Faced with a blizzard of illogical, strange, bad-faith arguments coming from Senate Republicans in advance of Donald Trump’s second impeachment trial, one might think that there has to be at least something to their arguments. After all, are there not two sides to every question?
Would that it were so, but there truly is no there there. On the constitutional level, Trump’s defenders still have not advanced beyond a simplistic, text-based argument—an argument that just so happens to get the text exactly wrong. On everything else, there is nothing but whataboutism and willful amnesia.
If all of that is true—and it is completely true—one might surmise that the Republicans’ continued insistence on repeating baseless arguments is motivated by fear. We have heard for years that Republicans are afraid of Trump’s tweets, of Trump’s willingness to abuse the powers of the presidency, and of Trump’s supporters. The first two of those explanations are no longer operative, but the latter explanation might still be sufficient.
Let us imagine, then, that Republican senators were truly terrified of their own party’s voters. What to do? One answer would be to hold a secret ballot at the end of the impeachment trial, possibly allowing these cowering Republican self-preservationists to vote their consciences—assuming, of course, that those consciences even exist.
Would a secret ballot be a good idea? Would it even be permissible? Before addressing those questions, we need to revisit the Republicans’ constitutional arguments, respond to an additional argument that Trump’s lawyers have offered, and put the overall trial in perspective.
My bottom line is that I honestly do not have a preference about using a secret ballot. What matters most is what will happen at the trial no matter what, which is that the world will see the open-and-shut case against Donald Trump. Decency—and history—demand nothing less.
The Republicans’ Text-Based Constitutional Argument is Still Absurd
In my most recent Verdict column, and in two follow-up columns on Dorf on Law, I discussed the simplistic argument that 45 Senate Republicans accepted when voting to declare that the Constitution does not allow the Senate to try an impeachable officeholder after he or she has left office.
My point in those columns was not that the constitutional analysis should begin and end with the text, whether one uses the discredited conservative “textualist” approach or anything else that purports to make deeper constitutional analysis unnecessary. Instead, I said simply that the two relevant clauses in the Constitution indeed do have clear text, but the Republicans are simply suffering from a bad case of (probably purposeful) reading incomprehension.
Importantly, I pointed out that other legal scholars have offered a full range of analyses—based on history, consequentialism, and so on—that all reach the conclusion that Trump’s trial not only fully comports with the Constitution’s meaning but is affirmatively required by our founding document.
I should add that, after writing my column, I came across another text-based argument that on its own destroys the Republicans’ case. Conservative legal scholar and former federal judge Michael McConnell (with whom I rarely agree) has noted that the Constitution bestows power on the Senate to try “all” impeachments, and all impeachments must include impeachments of presidents who are no longer in office. (In Trump’s case, this is especially easy to justify, because he was impeached by the House while still in office.)
One might think that Republicans would respond with something other than mindlessly repeating the same laughable misreading of the text. And in a way, they have done so—but only by committing even more basic argumentative errors. For example, Ohio Senator Rob Portman appeared on CNN nine days ago and actually said this:
I do think this constitutionality issue needs to be addressed. I mean, we would be convicting a private citizen, as you know, someone who’s out of office. That sets a precedent, and I think all former presidents, those alive and those not, could be affected in a negative way. And that’s the danger.
This is actually not an argument at all, because all he is saying is that convicting Trump could affect other ex-presidents “in a negative way,” which is “the danger.” What is that danger? That someone will impeach and convict Jimmy Carter or Barack Obama? Is he kidding? If the Constitution allowed it, and Republicans wanted to impeach a former president, they could do so. Where is the danger? And given the pointlessness of doing any of that, this slope hardly seems slippery.
Portman then mangled the Republicans’ text-based argument and added another big error to his party’s case:
If you look at the Constitution, there aren’t that many words about impeachment; so it’s easy to do, and I encourage your viewers to do so. It’s always connected with removal from office, and this is why the Chief Justice of the Supreme Court refuses to come and preside over this trial, as he did in the last one, because he said that he looks at the Constitution, and he only comes when it’s about removal, which is what impeachment calls for.
Portman is correct that there are not many words in the Constitution related to impeachment, which is exactly what I described in my most recent Verdict column. The problem for Portman is that the constitutional text is very much not “always connected with removal from office,” because one of the two key clauses says that “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.”
Trump’s lawyers have actually tried to deal with that inconvenient text, but they base their entire argument on the word “and” connecting “removal from office” and “disqualification to hold and enjoy any office.” This, they say, means that Trump has to be capable of being punished in both ways; and because he cannot be removed from office, he cannot be disqualified from future office, either.
Imagine that that clause had been worded differently. For example, the founders might have required that “upon conviction, the president must be removed from office and disqualified to hold and enjoy any office in the future.” Even that, however, would not get the Republicans where they want to go. After all, there is nothing stopping the Senate from saying that the removal part has already happened, and they are simply completing the second part.
As it was actually written, however, the clause says that the consequences of being convicted shall not extend further than those two consequences. In other words, the constitutional language simply says that there are two things that can happen to an impeached president, but nothing more. Saying “when a child misbehaves, punishment can extend no further than being grounded and scolded” does not mean that the child has to be both grounded and scolded, but it does mean that the child cannot lose his allowance or be whipped with a belt.
Trump’s lawyers’ argument, then, is simply absurd. They say that removal and disqualification must happen together or not at all, but that is simply not what the text says.
If they are making more than a text-based argument, many observers have pointed out that the implication of this argument would be to allow even sitting presidents to escape disqualification by resigning after being removed but before a vote to disqualify.
Returning to Portman’s arguments, he is even more glaringly wrong in asserting that the Chief Justice decided not to preside over the trial “because he said that he looks at the Constitution, and he only comes when it’s about removal, which is what impeachment calls for.”
But that is simply not true. The Constitution’s text says that the Chief Justice shall preside over the trial of sitting presidents, but it does not say anything one way or the other about whether the Chief Justice should preside over any other impeachments.
Indeed, Chief Justice Roberts has said that because he is not required to preside, he chooses not to do so, because his day job keeps him plenty busy. I happen to think that his decision was deeply irresponsible, but no matter how one judges his reasons, he has not said that he is sitting out because the trial itself is unconstitutional. He simply does not want to be a part of it, and he has that option.
Moreover, given that Trump’s words, actions, and inactions leading up to and during the January 6 insurrection are likely to lead to First Amendment and other challenges in future litigation, the Chief Justice might well be keeping his powder dry.
Senator Portman made many weak arguments in only a few minutes on the air, but surely his weakest is that Roberts’s decision not to preside tells us anything at all about whether the trial is constitutional.
Should We Protect Republicans with a Secret Ballot?
Above, I summarized the reasons that have been on offer for the past few years to explain Republicans’ kowtowing to a lawless, ignorant, racist demagogue. I noted that only “fear of the Trumpian base” is still even a plausible explanation, because Trump’s supposedly intimidating tweets are gone, and he no longer possesses any official powers.
That is why Portman is such an important focus of our attention, because only days before he made his appearance on CNN—and before he voted with his 44 colleagues to declare the impeachment trial to be unconstitutional—Portman had announced that he will retire from the Senate at the end of his current term.
Portman’s announcement of his retirement was met with wailing from some Beltway pundits who pretend that we need “reasonable centrists” and who point to people like Portman as just the kind of decent guy who could make things work better, if only he would stay.
Yet freed of any fear of facing a primary against a Trump-endorsed challenger, Portman went right back to toeing the party’s outlandishly lawless line. This could only be surprising to those who are more in love with the mythology of Republican centrists than they are devoted to the facts, however, because Portman has been nothing but a loyal soldier to Trump and to the extreme Republicans agenda even before Trump came along.
Among many other examples, Portman joined his colleagues in voting to pass the 2017 Republican tax bill that shoveled money toward the richest Americans (doing so without holding any hearings or even pretending to listen to Democrats). He did not join his colleagues John McCain, Lisa Murkowski, and Susan Collins in saving the Affordable Care Act from being destroyed. And most obnoxiously, Portman happily went along when his Republican colleagues denied even a hearing to Judge Merrick Garland for a Supreme Court seat and then gleefully joined in when his party hypocritically rammed a new justice onto the Supreme Court only weeks before the 2020 election.
Portman’s Senate colleague John Thune recently asked about his fellow Republicans: “Do they want to be the party of limited government and fiscal responsibility, free markets, peace through strength and pro-life or do they want to be the party of conspiracy theories and QAnon?”
The problem with this attempt to claim that there are reasonable Republicans, however, is that Thune and Portman have both been going along with a party that has shown no inclination to limit government, to be fiscally responsible, to support free markets, or to exhibit national strength (Putin? Kim? bin Salman?). They certainly do like to say that they are “pro-life,” but only from conception through birth.
Portman is hardly the only example of a retiring Republican who has not apparently been “set free to speak the truth.” Tennessee’s Lamar Alexander and Kansas’s Pat Roberts, for example, in no way became leaders of a liberated “conscience caucus” (or even “conscious caucus”).
Even so, it is possible that some number of currently serving Republican senators, including Portman and Thune, might honestly want to convict Trump but are unwilling to do so publicly. Even if they have no consciences, they might simply want to rid their party of Trump’s insanity.
In addition, last week’s vote among House Republicans retaining Liz Cheney in a leadership role—notwithstanding her unforgivable sin (in their minds) of voting to impeach Trump—suggests that a lot of Republicans are willing to take Trump-unfriendly positions privately but not publicly. Should Republicans in the Senate thus be allowed to hide their votes?
This question came up during last year’s Trump impeachment trial, and my Verdict colleague Dean Vikram Amar co-authored a column with Professor Jason Mazzone offering a very good analysis of the issues. Their conclusion was that a secret ballot is apparently permitted by the text, “but the narrow text of particular provisions is not the only source of bigger constitutional meaning.”
Concluding that “precedential and structural considerations do not lend much support to secrecy in the impeachment-trial-vote setting, and indeed tend to undermine it,” Amar and Mazzone added that privacy would be logistically difficult to maintain. Delightfully, they also offered the deliberately farcical idea that the ideal might be to allow everyone except Trump himself to know how the senators voted.
I agree with Trump’s lawyers and defenders about one thing: The Senate’s trial will be “political theater.” Whereas Republicans wish to demean the proceedings with that description, however, in fact there is every reason to provide a dramatic and compelling act of public citizenship by those who correctly view Trump’s actions as the threat to our country that they were—and that he would obviously carry out again (and then some), if he were ever given the chance to do so.
I recently wrote that the immediate and long-term political implications of the trial are unknowable. That is, even though Democrats (and anyone with eyes, ears, and a brain) know that Trump should be convicted, a conviction might boomerang on them politically. Similarly, Democrats could end up gaining politically from an acquittal. There is simply no way to predict what will happen.
Even if I were convinced that more Republicans would convict in a secret vote—perhaps even seventeen of them, although that seems farfetched—I am not sure that they should be allowed to take the easy way out. To me, the more important thing is simply that the trial happens. No matter the outcome of a political process, the truth matters.