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Washington Update: Déjà Vu All Over Again

The United States just endured a second impeachment trial. The outcome was foreseen, but the procedure was necessary. On January 6th both branches of Congress convened for a ceremonial act to tally the states’ certified results. This began at 2pm, but when they got to the votes from Arizona, objections were raised by Republican Representatives and Senators. At the same time, a mob spurred on by President Trump to march to the Capitol, began to break into the building. I was watching online and could hardly believe what I was seeing.

The Capitol Police were overwhelmed and violent people were attacking them with bats and flagpoles and trying to find Congress members to ‘arrest’. Luckily all of the Congress and the boxes of electoral votes were taken safely away from the mob. It took hours and reinforcements from the DC Police to clear the building, but massive damage was left. Congress reconvened in the evening and continued their work until after voting down a few more objections to the electoral votes. The election was finally finished, but the massive damage remained. Five people had died including a member of the Capitol Police. The Capitol, the White House and the National Mall are still enclosed with massive barriers.

Joseph Biden was formally inaugurated on January 20th, but national healing will take a long time. Before the Inauguration the House of Representatives prepared articles of impeachment charging President Trump with inciting insurrection. However they delivered the articles to the Senate after the Inauguration. There was some commentary that according to the US Constitution, impeachment was only a remedy to remove federal office holders from office. Article II, Section 4 of the Constitution states that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Most of the Senators at the trial voted against Trump’s impeachment because they said he could not be impeached after leaving his office.

I looked at Article II, Section 4 in the Annotated Constitution in Congress.gov and found this instance where an official who was no longer in office was impeached. “The first and only time a Cabinet-level official was impeached occurred during the presidential administration of Ulysses S. Grant. Grant’s Secretary of War, William W. Belknap, was impeached in 1876 for allegedly receiving payments in return for appointing an individual to maintain a trading post in Indian territory.8 Belknap resigned two hours before the House unanimously impeached him,9 but the Senate nevertheless conducted a trial in which Belknap was acquitted.10 During the trial, upon objection by Secretary Belknap’s counsel that the Senate lacked jurisdiction because Belknap was now a private citizen, the Senate voted 37-29 in favor of jurisdiction.11 A majority of Senators voted to convict Secretary Belknap, but no article mustered a two-thirds majority, resulting in acquittal. A number of Senators voting to acquit indicated that they did so because the Senate did not have jurisdiction over an individual no longer in office.12 the impeachment articles brought against Secretary Belknap instead charged his behavior as constituting high crimes and misdemeanors.13 Bribery was mentioned at the Senate trial, but it was not specifically referenced in the impeachment articles themselves.14

So it appears that the Republican Senators could have voted to have jurisdiction over the impeachment, but preferred to rely on the argument that they did not have jurisdiction in order to avoid offending their base of Trump supporters. Seven brave Republicans did vote to impeach, but the vote failed to reach the two-thirds majority needed to convict.

Some justice still may be done via a civil suit, filed on February 16 in the US District Court in Washington, DC, against Former President Trump, his former attorney Rudolph Giuliani, and several right wing militia groups. Other litigation and formal censure may follow soon.

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