The 45 Republican senators who deem it unconstitutional to try a former president for encouraging a mob to sack the Capitol leave no doubt: They’d acquit Donald Trump, meaning there’s nowhere near the 67 votes necessary for conviction. If censuring Trump can get Congress on record against Trump’s anti-democratic behavior, censure it must be.
Before we get there, digest the absurdity that these same nullifying senators purport to care about precedent and the plain language of the Constitution. That language here is ambiguous, while a Congressional Research Service 2019 report asserts that “federal officials who have resigned have still been thought to be susceptible to impeachment and a ban on holding future office.” That includes Secretary of War William Belknap, who in 1876 resigned just before the House impeached him; the Senate still conducted a trial.
It’s not a laughable opinion that an out-of-office president can’t be convicted — but the contrary position is wholly legitimate and more consistent with history.
Still, if a trial is a nonstarter, move to the next best way to ensure Trump doesn’t again get off scot-free. Sens. Tim Kaine and Susan Collins are cooking up a resolution condemning him for giving “aid and comfort” to the insurrectionists by, in Kaine’s words, “repeatedly lying about the election, slandering election officials, pressuring others to come to Washington for a wild event and encouraging them to come up to Congress.” It would then invoke the 14th Amendment's bar against someone thus guilty from public office.
This last part could supercharge Trump’s politics of victimhood, and is a likely deal breaker with the same 45 no votes on impeachment. Would they back a clean but unconditional censure, sans that prohibition on future officeholding?
Force them to take every vote. Each time, let them defend giving the man total immunity for inciting an insurrection.
