The focus of the political world today will be on the impeachment hearing in the House, which is expected to both start and commence today, and by every indication Pelosi has the votes to impeach Trump.
I noted last night that the vote to have the House urge Pence to invoke the 25th Amendment was a partisan one. It turns out that is not quite true, as one Republican congressman voted in favor of the motion: Kinzinger from IL-16, who as I noted previously has been openly critical of Trump in recent days. Many pundits feel like the timing of the release of Pence’s letter to Pelosi saying he wouldn’t invoke the 25th Amendment, coming as it did in advance of the vote, was designed to give Republicans cover to vote against the motion on the grounds that the motion was already known to be pointless given Pence’s stated position.
As I alluded to last night, I have sympathy here for Pence’s point of view. There are two constitutional mechanisms for having somebody else assume the powers of the Presidency in mid-term. One, the 25th Amendment, is designed for use by the Executive branch in situations where the President is incapable of performing the duties of the job. The other, impeachment, is designed for use by the Legislative branch in situations where the President has committed wrong-doing. From a precedential standpoint, impeachment clearly seems like the more appropriate of the two mechanisms to address Trump’s recent actions. It’s not like he’s incapable of performing the job – at least, not any more incapable than he ever was…
Having said that, the fundamental tension here is one of timing. If the House convicts today, it would be difficult under any circumstances to have a full-blown Senate impeachment trial before January 20th, and McConnell has already indicated that parliamentary considerations would prevent the trial from starting until the 20th. That has motivated the potential for using the 25th Amendment to resolve the timing problems associated with using impeachment, even though impeachment is the more appropriate mechanism absent practicality concerns.
To this point the general consensus has been that a post-inauguration Senate trial of an impeachment action that occurred in the House while Trump was in office is allowable, with the implication that a conviction could bar Trump from running for President in 2024. However this morning the Washington Post has an op-ed from Michael Luttig saying, no, that’s not the right way to read the Constitution.
Luttig, you might recall, was a serious candidate for the two Supreme Court seats that opened up in the summer of 2005, ultimately filled by Roberts and Alito. The next year, with his Supreme Court dreams apparently destined to go unfulfilled, he left the 4th Circuit to become chief legal counsel at Boeing, retiring from that post when he turned 65 in 2019. Luttig believes there is sufficient doubt about whether the Senate has the authority to convict someone who is no longer in office that, were Trump to be convicted by the Senate after January 20th, ultimately the Supreme Court would need to resolve the matter as a so-called case of first impression – a matter that has never before been litigated.