Is the “Double Jeopardy clause” in the Constitution applicable to impeachment — meaning he can’t be impeached again?
By far, the most common question I’ve gotten over the past few days is some variation of this one. So what are the House’s options if, following impeachment, it determines Trump has done something else that warrants impeachment?
“There is nothing in the Constitution prohibiting another impeachment trial of Donald Trump,” said Sarah Burns, an impeachment expert at the Rochester Institute of Technology, in an email to me. “They could even retry him for these charges if they so choose. For example, if John Bolton (Trump’s former national security adviser) or anyone else can prove that there was a threat to national security, the House could reopen the case.”
But there is a difference between being able to do something and wanting to do something. I have a very hard time seeing how Democrats take up impeachment again. The political cost of being seen as relentlessly trying to get the president out of office, especially as the election ticks closer, is just too high. Democrats are aware that they won the majority of the House of Representatives last year not by banging on Trump but by talking about health care. Remember, the races that made the difference for them happened in districts that Trump also won in.
Finally, impeachment is different from investigations. There is some push from folks like House Judiciary Chairman Jerrold E. Nadler (D-N.Y.) to keep the Ukraine investigations going by subpoenaing Bolton to hear what he knows about Trump and Ukraine. “When you have a lawless president, you have to bring that to the fore. You have to spotlight that,” Nadler told reporters.
Other Democrats tell The Post’s Rachael Bade and Paul Kane that’s yet to be determined, because, again, the politics of continuing to pursue this aren’t great for Democrats.
“We can’t win the next election just being against Trump,” Sen. Robert Menendez (D-N.J.) told them.
Trump acknowledged it could happen in remarks at the White House Thursday and previewed his attack.
“If they find that I happen to walk across the street and maybe go against the light or something, let’s impeach him,” he said. “So we’ll probably have to do it again, because these people have gone stone cold crazy.
What are the implications on the upcoming election if the president’s acquittal emboldens him to further tamper with the electoral process?
As The Fix’s senior writer Aaron Blake pointed out, Trump has not seemed likely to be chastened by impeachment. As the House’s investigation was going on, he called for China to investigate Hunter Biden. Sen Susan Collins (R-Maine) recently had to walk back her comments saying he’s learned his lesson by clarifying her comment was “aspirational.”
Do any other actions by Trump to invite foreign interference undermine the integrity of the election itself? That’s what Democrats are worried about. But if this happens, could there also be political implications for the Republican senators who voted to acquit him? Or does it even matter, given they’re not expecting many Democrats to vote for them in the first place after voting to acquit Trump?
What precedents were set by this impeachment?
Time will help suss this out, but I think the fact Trump’s impeachment charges didn’t match up with the criminal code could be one, given how many Republicans latched onto that defense.
Also, Democrats fear that a president’s decision to just ignore Congress and its subpoena requests is a new precedent, established by Trumps’ acquittal on the obstruction of Congress charge. We saw a lot of Republican senators latch onto this as a defense for Trump, even though this extension of executive power may yet be decided by the courts.
And Chief Justice John G. Roberts Jr. set a precedent for the Supreme Court’s roles in future impeachment trials by saying he wouldn’t rule on witnesses while overseeing the trial.
How could the Republican Party kick out Sen. Mitt Romney (Utah) for voting to convict Trump?
He could be ostracized by Senate Republicans or not be put on committees. The state Republican Party in Utah could stop working with him, too. But I don’t think there’s appetite for that, though, despite a push by Donald Trump Jr. to do it. Romney’s seat won’t come up for election for four more years, and Republicans may still need his vote on certain items. On Wednesday, Senate Majority Leader Mitch McConnell (R-Ky.) literally laughed at that notion when asked by reporters.
Why did House Speaker Nancy Pelosi (D-Calif.) grant access of the House chamber to Trump for the State of the Union? Wouldn’t it have been better for Democrats if he didn’t have that podium just before his acquittal?
The State of the Union is one of those norms in national politics that increasingly feels out of place with the norm-smashing era we are in. It used to be an attempt at bipartisanship. But for this one, some liberal Democrats boycotted; others who attended said they wished they had not. And the spirit of bipartisanship was not present the night of the speech: Trump didn’t shake Pelosi’s hand; he turned it into a campaign rally; and Pelosi ripped up his speech as he was still on the podium.
If Trump wins reelection, but the Democrats take control of the House and Senate, they could impeach him again correct?
Well, they could impeach him in the House, but conviction by the Senate remains a high bar. Just retaking the Senate majority (not a sure thing for Democrats) does not mean they would have enough votes to throw him out of office. That requires 67 out of the 100 senators. Even a dream election for Democrats — where they sweep all the competitive races — would only put Democrats at about a 54-seat majority.
Can the president be prosecuted by the judiciary branch even though the Senate acquitted him?
No. Not according to decades-old Justice Department guidelines that say a sitting president can’t be indicted, though Pelosi has considered making a push to write into law the opposite: that a president can be subject to criminal charges while in office.
Who refused subpoenas to testify?
- Mick Mulvaney, the acting White House chief of staff, who has publicly said there was a political quid pro quo attempted in Trump’s dealings with Ukraine.
- John Eisenberg, the National Security Council lawyer who played in roll in moving the July 25 transcript to a secure classified server.
- White House budget officials whose emails later showed them coordinating the Ukraine aid pause.
And while the House didn’t technically subpoena former national security adviser John Bolton, that’s because his top aide asked a court to intervene when the House subpoenaed him, and Bolton indicated he’d do the same.
Why didn’t Romney vote to convict on the second count: obstruction of Congress?
Democrats’ case on this count was weakened, in the eyes of Republicans, for not following these lawsuits to force witnesses to testify all the way to the end. I think it’s plausible that Republicans like Romney would have been more willing to consider this article if the House had won those court cases and then Trump refused to hand over documents and witnesses.
Now that we’ve had three presidents impeached and zero actually removed, does this put into question the efficacy of the process?
Maybe. Or maybe not. Both sides on the winning end of a Senate trial would argue the process worked, that the high bar for impeachment prevented a president from unfairly getting kicked out of office.