After the Senate’s vote last week on the constitutionality of holding a Senate trial after a president has left office, it’s clear that a conviction of President Trump in the upcoming Senate (show) trial is DOA because most Republicans are not likely to go along with it.
Because of that, some Senate Democrats have floated other measures like censuring Trump as an alternative, because it would require 60 votes instead of 67. But according to failed 2016 Democratic vice presidential nominee Sen. Tim Kaine (D-VA), part of any censure effort would also involve what a conviction would lead to in a Senate impeachment trial: barring Trump from running for office again:
Kaine is still gathering input but has drafted a resolution that would formally censure Trump. It also includes provisions that would mirror language in Section 3 of the 14th Amendment on barring officials from holding future office.
“In a way I view it as kind of censure-plus because it has these two factual findings that could have the same consequence as an impeachment conviction,” Kaine said. “It’s not just, ‘hey you did those things and that’s bad.’ ”
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In addition to condemning Trump, the resolution makes two findings, according to Kaine: that Jan. 6 was an insurrection and that Trump gave “aid and comfort to the insurrection.”
“If he ever were to decide to run again, which may not happen, then likely a court or somebody would say OK what about your behavior in January of 2021 including the congressional fact finding,” Kaine said, predicting that “Congress finding the facts would be given great deference by a court.”
George Washington University law professor Jonathan Turley, who has testified before Congress on many occasions including during the 2019 House Democratic impeachment hearings, took to the Twitter machine over the weekend to explain the dangers of Senate Democrats considering the “censure-plus” path of punishing Trump as well as the legal challenges they would face from Trump’s team:
There is now a call to not only disqualify dozens of Republicans under the 14th amendment but to put the entire Republican Party on the Domestic Terror List. https://t.co/3TS3mAvWlD With the help of legal experts, rage again triumphs over reason… https://t.co/zp0Hyj6RtG
— Jonathan Turley (@JonathanTurley) January 31, 2021
…Legal experts are again insisting that the 14th Amendment can clearly be used in this way. In truth, Trump and these members would have a strong challenge to such disqualification by a simple majority vote. If you believe this was incitement to insurrection, prosecute them…
— Jonathan Turley (@JonathanTurley) January 31, 2021
…There can then be a real trial on real charges with a real verdict. What concerns me is the absence of discussion of the obvious dangers in allowing such votes in Congress to disqualify politicians under the 14th Amendment…
— Jonathan Turley (@JonathanTurley) January 31, 2021
…The expanding calls for blacklists, watch lists, and disqualifications show how the appetite for retaliation is becoming insatiable and irrational. The Framers saw Congress as a buffer to such impulsive and destructive measures.
— Jonathan Turley (@JonathanTurley) January 31, 2021
In a piece he wrote for The Hill, Turley opined that Senate Democrats should stick with a simple censure resolution and leave any future political plans Trump may have “to voters and to history”:
There is an alternative, which is a censure resolution that can garner overwhelming support as a bipartisan condemnation rather than a circumvention of impeachment. We can then leave the Constitution alone, and leave the future of Trump to voters and to history.
That said, I’m not sure that even a censure resolution would win over the required number of Republicans in the Senate, because so much evidence has come out since the Capitol riots, evidence that points to the attack on the Capitol being pre-planned rather than being something “incited” by Trump during his speech.
If Republican Senators truly do plan on voting based on what they hear as it relates to the evidence, it’s hard to see where they could in good conscience vote to censure, much less convict.
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