What’s Really Driving Impeachment 2.0?

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Why are Democrats so afraid of Trump running for president again?

By Robert Romano

That was the tweet from the House Democratic Caucus on Feb. 7, neatly outlining the only possible reason for the Senate to proceed with the impeachment trial of former President Donald Trump on charges of “incitement of insurrection” for the speech Trump gave on Jan. 6 at the Save America Rally that preceded the storming of the U.S. Capitol Building.

It is certainly not to remove Trump from office, whose term expired on Jan. 20. Article II, Section 4 of the Constitution states “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” And Article I, Section 3 states “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…”

The fact that the House impeached Trump prior to his term ending does not save this process, as upon expiration of his term, the impeachment became moot. As a constitutional matter, it is simply too late for the trial.

Here, the Constitution mentions removal twice as a punishment upon conviction in impeachment trials, and the one time in mentions disqualification, it is prefaced in conjunction with removal. Meaning, once a president’s term is over he cannot be disqualified, because to do that he’d have to be removed. Here, the Constitution was explicitly limiting the House’s exercise of the impeachment power to only a sitting president, thereby precluding the possibility of targeting a former president, thus rendering the trial of Trump unconstitutional.

And the purpose of the trial certainly is not to try any real crime. In his speech, Trump explicitly urged those protesting the certification of the election results by Congress to “peacefully and patriotically make your voices heard.” Not only is that not incitement, under the First Amendment, it is protected speech.

Whereas, under criminal incitement, in 18 U.S.C. Section 373 for example, the House of Representatives would need to prove that “with intent that another person engage in … the use, attempted use, or threatened use of physical force against property or against the person of another” that Trump’s speech “solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in” violence.

But nothing in the speech comes anywhere near that. Moreover, the attack on the Capitol appears to have been pre-planned by right-wing militia groups who Justice Department filings show were planning the Capitol breach as early as Jan. 1 on Facebook. The FBI also revealed via a wanted poster that the two bombs placed outside the Republican National Committee and the Democratic National Committee set to go off on Jan.6 were planted the night before on Jan. 5. And, separately, a Black Lives Matter activist John Earle Sullivan who was also charged in the Capitol riot told the Epoch Times “he knew of plans to storm the Capitol” which he had seen in “undergrounds chats and things like that.”

So, lacking any crime with which to try Trump or a legitimate process, and the fact the riot was planned ahead of time and not incited, and with 45 Senate Republicans opposed to the process on constitutional grounds, this impeachment has almost no chance of convicting Trump — and so we are left with disqualification from running for office as the principal justification for proceeding with the trial.

Here, the facts are simple: In the swing states of Arizona, Georgia and Wisconsin, President Joe Biden barely beat former President Trump by a scant 43,000 votes — 10,400 in Arizona, 11,800 in Georgia and 20,600 in Wisconsin. In addition, Democrats lost 13 seats in the House of Representatives, and barely won a Senate majority with Vice President Kamala Harris now casting the tie-breaking vote.

And so perhaps Democrats are afraid that Trump — who in 2024 would be 78 — is going to run for president again, and that given Biden’s narrow win, he would be vulnerable to being ousted. Perhaps they don’t even want Biden to run again, who will be 81 years old in 2024. They’d rather Harris or someone else run, but not if Democrats have to square off against Trump again.

They don’t want a rematch. Now, maybe Trump doesn’t want one either. But should he run, it is for the American people to decide if Trump deserves another term of office — not the Senate.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.