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The impeachment of a former president by the US Senate is unconstitutional – in the narrow sense that the US constitution makes no explicit provision for it – but whether it is constitutionally prohibited is an entirely different matter. And the overwhelming view of US constitutional lawyers is that the Senate impeachment trial of Donald Trump, which opened yesterday, is perfectly legal.
If the constitution explicitly provides, as it does, that the Senate may bar officials convicted of impeachable offences from public office again in the future, then “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders”, a prominent Republican lawyer has argued persuasively. In doing so he has broken ranks with party colleagues, and notably with 45 party senators, including leader Mitch McConnell, who joined his colleagues in voting last month that the trial would be illegal.
That battle was again fought in the opening shots of the hearing yesterday. But this was in essence a political argument – cover for embarrassed Republicans anxious not to be seen to dump Trump but unable to stomach defending his innocence plea – dressed up as a legal case, and doomed to fail, just as the impeachment trial will fail when it fails to muster at least 17 of them.
Trump is charged with “incitement of insurrection” over the deadly assault on the Capitol by his supporters on January 6th. It is the second time he will have been sent for trial through House impeachment proceedings, a process that establishes merely a case to answer, and the second time, almost certainly, that he will escape conviction.
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His lawyers have said in their initial written pleadings that much of their case will rehearse that dodgy constitutional case, but will also insist that incitement is unproven and that his denial of the election result is protected by the constitution’s free speech provisions. But any exhortation to the Democrats to take on board such legal arguments, however persuasive, will ring hollow from those who have already demonstrated their determination to turn the trial into political theatre.