The absurdities of this claim abound. The Constitution specifies two possible punishments the Senate can impose upon impeachment conviction: removal from office and disqualification from future office. The second penalty is always and only imposed on former officials, since they have just been removed from their job. And there is nothing in the text of the Constitution that requires the imposition of both punishments in every case.
The Trump team’s version of impeachment would leave the process easily gamed. Why wouldn’t every official facing the likelihood of conviction simply resign from office 10 minutes before the Senate votes? Yes, the official would lose office (by an act of his or her own will). But wouldn’t this make the second punishment — disqualification from future office — impossible to impose?
Think on this a moment. If only current officeholders can be impeached and convicted, only those officials who feel confident of Senate acquittal would choose to remain in office until the vote. The incentive structure of this system would be perverse. As a practical matter, disqualification would be imposed only on officials who think they have a chance at Senate acquittal, decide to risk a vote and then lose. Those who are confident of Senate conviction would always avoid disqualification by strategically resigning. The worst offenders would never face the full range of penalties.
The Constitution is not a perfect document. But are we really expected to believe the Framers created an impeachment process with a hole so large you could ride a buckboard through it?
The general asininity of restricting impeachment to sitting officials goes further. Wouldn’t this be a license for presidents to abuse their power in the last few months of their terms, when impeachment becomes a practical impossibility? Wouldn’t this amount to a January free pass for high crimes and misdemeanors?
Trump incited the insurrection two weeks before the end of his term, in the hope that his time in office would be unconstitutionally extended. Yet his lawyers have been shameless enough to criticize “the House of Representatives’ rush to judgment” on impeachment. If only sitting presidents can be impeached, the House and Senate would need to have a rapid, streamlined impeach-o-matic process ready at the end of every presidential term to hold abuses of power to account on a countdown clock. “It is inconceivable,” according to the House trial brief, “that the Framers designed impeachment to be virtually useless in a President’s final days, when opportunities to interfere with the peaceful transfer of power would be most tempting and dangerous.”
Many Republican senators seem to be clinging to this weak procedural case because they do not want to confront the reality of what happened on Jan. 6. That is understandable. But it isn’t an option consistent with duty.
The Capitol attack was not merely the work of an unstable, departed leader. All the mayhem and blood were the triumph of a certain kind of politics that continues and strengthens under Trump’s direction.
It was the natural outworking of an apocalyptic politics. We need to “fight like hell,” Trump told the assembled crowd in D.C., or “you’re not going to have a country anymore.”
It was the logical consequence of a politics based on lies. “States want to correct their votes,” Trump informed his supporters on Twitter. “All Mike Pence has to do is send them back to the States, AND WE WIN.”
It was the natural outcome of a politics infected with conspiracy theories. Shadowy forces, Trump maintained, were responsible for the “biggest SCAM in our nation’s history.”
It was the culmination of a militarized rhetoric, in which Trump has urged his followers to view politics as an “act of war” and to “fight to the death.”
Only one decision in the Senate trial will hold a guilty man accountable, while taking a stand for a better, nobler political ideal. And there is no plausible, procedural argument that will rescue senators from the moral choice they face.