U.S. Sen. Rand Paul, R-Ky., speaks at the Republican National Convention on Tuesday, Aug. 25, 2020 (RNC video screenshot)
Forty-five senators voted on Tuesday to have an immediate discussion over whether it’s constitutional, or appropriate, to try to impeach a president who no longer is in office.
The vote, which did not succeed because Democrats and a few GOP members totaled 55 to table the discussion, came on Sen. Rand Paul’s point of order regarding the Democrats’ plans to hold another trial for former President Donald Trump.
At issue is whether the Constitution, which provides that the penalty for impeachment is removal from office, allows for impeachment and conviction of a president whose term as expired.
Historical precedents aren’t clear, with previous cases concerning officers not the president.
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Sen. Paul, the Republican from Kentucky, raised a constitutional point of order regarding the issue, but Sen. Chuck Schumer made a subsequent motion to table the point of order discussion.
It was that move that gained 55 votes.
But 45 members of the Senate voted to have the issue discussed and resolved immediately, suggesting strongly that there won’t end up a total of 67 to convict Trump.
Democrats in the House accused him of “incitement” to “insurrection” for a speech he gave on January 6 to a rally outside the White House. At virtually the same time as the rally, rioters broke into the U.S. Capitol and vandalized it.
Is it constitutional to impeach and convict a president after he’s out of office?
3% (1 Votes)
97% (39 Votes)
Democrats have claimed that Trump’s encouragement for his fans to march on the Capitol “peacefully” and have their voices heard amounted to incitement to insurrection.
That’s even though First Amendment experts have affirmed that the president’s speech was protected by the First Amendment.
Sen. Paul, earlier in the day, had explained his arguments.
This is the BEST takedown of Democrats’ unconstitutional impeachment sham I’ve seen.
EVERY American should see this speech from @RandPaul.
Watch what your elected officials are busy debating while millions of Americans are suffering
— Charlie Kirk (@charliekirk11) January 26, 2021
Paul had said the results would be enough to show that “a third of the Senate thinks that the whole proceeding is unconstitutional.”
Another complication is that the Constitution requires the chief justice of the Supreme Court to preside over the impeachment of a president, but since Trump’s term has expired, Chief Justice John Roberts would not be involved. Democrats said Sen. Patrick Leahy, a Vermont Democrat, a partisan would preside.
Apparently he would later vote to acquit or convict, too.
Analysts have pointed out the inappropriateness of an impeachment, since senators themselves could be considered witnesses, victims or survivors of the riot at the Capitol.
“Democrats brazenly appointing a pro-impeachment Democrat to preside over the trial is not fair or impartial,” Paul said on the Senate floor. “Hyper-partisan Democrats are about to drag our great country down into the gutter of rancor and vitriol, the likes of which has never been seen in our nation’s history.”
The senator warned the Democrats’ agenda is designed “to further divide the country.”
“Private citizens don’t get impeached,” he explained, noting Democrats should be focusing on the work that the nation needs to get done.
Democrats, he charged, “are about to do something no self-respecting senator has ever stooped to. … [They] are insisting the election is actually not over and so they insist on regurgitating the bitterness of the election.”
He called the strategy a “sham” and pointed out that Democrats also have used language that could be described as “inciting.” But they have not been punished.
In fact, he pointed out that Kamala Harris, now vice president, raised money for criminals who rioted in Minneapolis and were in jail, to help them get out.
“Are we going to impeach every politician who has used the word ‘fight’ in a speech?” he asked.
There’s also been criticism of the House’s “snap impeachment” process that allowed no evidence and no witnesses.
Constitutional scholar Jonathan Turley warned that process would allow for the impeachment of “any president” in the future.
The law professor at George Washington University said, “Trump’s speech does not meet the definition of incitement under the U.S. criminal code. Indeed, it would be considered protected speech by the Supreme Court.
“Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers ‘to peacefully and patriotically make your voices heard,'” Turley explained.
Turley also argued there was no call for lawless action by Trump.
He charged that, “Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration. Many of the same members have used the same type of rhetoric to ‘take back the country’ and ‘fight for the country.’ The concern is that this impeachment will not only create precedent for an expedited pathway of ‘snap impeachments’ but allow future Congresses to impeach presidents for actions of their supporters.
“Democrats are pushing this dangerously vague standard while objecting to their own statements being given incriminating meaning by critics. For example, conservatives have pointed to Rep. Maxine Waters, D-Calif., calling for people to confront Republican leaders in restaurants; Rep. Ayanna Pressley, D-Mass., insisted during 2020’s violent protests that ‘there needs to be unrest in the streets,’ while then-Sen. Kamala Harris, D-Calif., said ‘protesters should not let up’ even as many protests were turning violent. They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity,” he said.
Catholic League President Bill Donohue has said Trump never instructed anyone to engage in violence while conceding, as critics say, that he “stoked people’s passions.”
But if “inflammatory rhetoric” is the standard, he said, “then Trump’s critics are at best ethically compromised.”
He pointed out Barack Obama in 2008 said: “I need you to get out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face.”
And his attorney general, Eric Holder, said in 2018: “When they go low, we kick ’em. That’s what this new Democratic Party is about.”
Waters went much further in 2018.
“Let’s make sure we show up wherever we have to show up. And if you see anybody from that [Trump] Cabinet in a restaurant, in a department store, at a gasoline station, you get out and create a crowd,” she told a raucous crowd. “And you push back on them. And you tell them they’re not welcome anymore, anywhere.”
Rep. Cory Booker, D-N.J., said last year, “Please, get up in the face of some Congress people.”
House Speaker Nancy Pelosi downplayed leftists rioting, saying, “People will do what they do.”
Donohoe also cited Pressley, who said, “You know, there needs to be unrest in the streets for as long as there is unrest in our lives, and unfortunately there is plenty to go around.”
And Harris said: “They’re [left-wing protesters] not gonna stop before Election Day in November and they’re not gonna stop after Election Day. And that should be—everyone should take note of that on both levels, that this isn’t, they’re not gonna let up and they should not. And we should not.”
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