The question that seems to be on everyone’s mind is whether the post-presidential impeachment of Donald J. Trump is constitutional.
Of course, it is.
In a 14-page memo released this week, lawyers for Trump argue, among many other things, that the Senate trial is an egregious constitutional overreach and that the Senate has no jurisdiction over Trump because he currently holds no public office from which he can be removed.
This is a serious logical stretch and even a more tenuous legal one.
Trump was impeached by the House while he was president. The acts and omissions at issue that led to his impeachment occurred while he was in office. The Senate impeachment is simply a timely continuation of this fair process that is enshrined in the Constitution. To be clear, there is nothing happening that is unconstitutional.
What is actually and critically important over the next few days is how the Senate will conduct the trial.
The process from today onward will be historically good political theater. With a 50-50 Senate, the chances of getting a conviction are somewhere between tiny and small, even with a few Republican senators committed to supporting the House’s impeachment. Remember the bar is set high in the Senate with a two-thirds majority required.
So what might actually create a situation so politically bad for the GOP that enough senators would have to even begrudgingly cross the line and vote in favor of impeachment?
This is the fight that will begin to be played out in traditional and social media cycles. Watch for the nuance in the arguments as to why witnesses should or should not be called—it’s going to be fascinating stuff.
The Democrats want to call witnesses. Why not? They think enough witnesses will emerge to strengthen their impeachment case. The Democrats think Trump’s legal team is questionable at best. More a team of B- rather than A players. The strength and depth of the impeachment legal team is critically important. They need to be reactive in real-time during the trial, but they also need to be proactive, able to anticipate the next move from the House impeachment managers. The key Democratic leaders have no reason to think Trump’s team will be especially skilled at doing this.
Strategically, this opens the opportunity for blockbuster witnesses to come in with damaging evidence. While there are many who might be called to testify should witnesses be allowed, perhaps none would be more damaging than the former president’s former lawyer, Michael Cohen.
Just this week, Cohen said he would put the “nail in the coffin” at Trump’s Senate impeachment trial if given the opportunity to testify. Unless we believe this to be all palaver, Cohen could be the kind of explosive witness able to sway votes.
The GOP, meanwhile, doesn’t want witnesses, and who can blame them? The goal of the vast majority of Republicans in the Senate is to make this all go away. A carbon copy of former President Trump’s first Senate impeachment trial would be ideal for them. Fast and not even close.
Lindsey Graham, R-S.C., said allowing witnesses at trial would be tantamount to “opening a Pandora’s box,” which is actually a prescient observation.
As the Greek myth goes, Pandora’s box was actually a jar. Pandora opened this jar left in her care expecting it to be a wonderful gift. Instead, it contained sickness, death and other evils that were released into the world.
The Democrats have nothing to fear by calling witnesses. The worst-case scenario for them is that their witnesses flop. Unlikely, but if this is the case, their efforts to impeach would certainly be no worse off than if they weren’t allowed to call witnesses at all.
What the GOP has to lose by calling witnesses might be the entire trial. Who knows what evils are brewing within the jar? Would there be multiple witnesses such as Cohen with the clear intent and perhaps the knowledge to hammer in that final nail? Does the GOP already know that these witnesses exist and are ready to come forward, or will they be truly surprised at the scope and depth of what witnesses might say?
That’s the thing with both mythology and witnesses in an impeachment trial. You never know what you’re going to get until it happens.