On Wednesday, Donald Trump made history, becoming the only president in U.S. history to be impeached twice. And with 10 Republican members of the House of Representatives—including Liz Cheney, the third-ranking House Republican—voting to impeach, it was the most bipartisan impeachment vote in history, with members of his own party breaking away in numbers not seen since the Andrew Johnson or Bill Clinton impeachments. (In 2019, not a single Republican voted in favor of impeaching Trump.)
Now, in the coming days, we will see if Trump makes history again, and becomes the first U.S. president to be convicted by the Senate.
Earlier this week, Senate Majority Leader Mitch McConnell—up until now a staunch Trump supporter—had signaled that he might be open to a Senate vote as early as Monday (and that he himself might vote to convict and forcibly remove Trump from office). But late Wednesday, after the House officially voted 232 to 197 to impeach, the majority leader issued a statement that he would not reconvene the Senate until Tuesday, the day before Joe Biden is inaugurated as president, and made it clear that a trial could not begin until after Biden takes office and control of the Senate shifts to the Democrats.
“Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office,” McConnell said. “This is not a decision I am making; it is a fact. The President-elect himself stated last week that his inauguration on January 20 is the ‘quickest’ path for any change in the occupant of the presidency. In light of this reality, I believe it will best serve our nation if Congress and the executive branch spend the next seven days completely focused on facilitating a safe inauguration and an orderly transfer of power to the incoming Biden Administration.”
But isn’t that too late? Nope. Most constitutional scholars agree that Trump could be impeached and convicted after leaving the office of the presidency.
It may seem a superfluous action—after all, Trump will no longer be president after noon on January 20, so why bother voting to remove him?—but there are practical reasons that a conviction would be a consequential step. In addition to stripping Trump of some of the benefits that automatically go to ex-presidents—like a yearly pension (now valued at $221,400) and a travel budget of $1 million a year—it would also bar him from ever holding public office again. That’s a key goal of Democrats, and even some Republicans, who want to thwart Trump from following through on his threat to run for president in 2024.
And the timing issue was directly addressed in the impeachment debate on Wednesday by Representative Steny Hoyer of Maryland, the House majority leader. “Is there little time left?” Hoyer asked “Yes. But it is never too late to do the right thing.”
Hoyer also directly quoted Liz Cheney—from the opposite side of the aisle—in his speech urging impeachment, making the case that this was a bipartisan issue. The day before, Cheney had announced she would vote for impeachment and explained her reasoning, referring back to the invasion of the U.S. Capitol on January 6. “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack,” Cheney said. “Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution. I will vote to impeach the President.”
Reading aloud part of that statement, Hoyer added, “That is not some irresponsible new member ... This is the daughter of the former Republican whip and former vice president.”
Some Republican colleagues also came to her defense when others in the House, like Representative Jim Jordan, said Cheney should be ousted from Republican leadership after her impeachment vote:
But how many Republican senators will join Cheney and those nine other representatives when a vote finally takes place in the upper chamber? Last time, only Mitt Romney voted to convict Trump. Because a two-thirds vote is needed, 17 Republicans would have to join the 50 Democrats now in the Senate, assuming all 50 vote to convict.
According to Slate, Romney seems a likely “yes” vote again, along with Trump critics like Lisa Murkowski of Alaska, Susan Collins of Maine, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania. But it’s an uphill climb after that—unless, of course, McConnell himself comes out more forcefully in favor of conviction. That could trigger a stampede of fellow Republicans who might finally want to free themselves of the yoke of Trumpism.
In a letter sent to his Republican colleagues on Wednesday, McConnell said, “While the press has been full of speculation, I have not made a final decision on how I will vote and I intend to listen to the legal arguments when they are presented to the Senate.”
But there is also a provision in the Constitution that allows the Senate to bar Trump from holding office ever again even if not enough senators vote to convict him. Senate could take what The New York Times has described as “a second, even more punitive step, to disqualify the person it convicts from holding ‘any office of honor, trust or profit under the United States.’” That measure would need only a majority vote to pass, not the full complement of 67 senators.
Though some Democratic senators, mostly notably Joe Manchin of West Virginia, think the Senate should not take up a trial of Donald Trump because it would interfere with the crucial business of confirming Joe Biden’s cabinet nominees and passing legislation from the new administration, other Democrats say the Senate can do both, perhaps by tackling the Biden agenda in the morning and the Trump trial in the afternoon.
As Kirsten Gillibrand, the Democratic senator from New York, said on CNN Thursday morning, “We can certainly walk and chew gum at the same time.”