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Drew Angerer/Getty Images The Senate could vote to remove President Trump from office, and still give his supporters an opportunity to vote for him in November.
President Donald Trump’s lawyers are trying out a rather nervy approach in the impeachment trial before the U.S Senate.
After Trump leveraged taxpayer dollars in an effort to pressure Ukraine to sabotage the integrity of the election, his lawyers are arguing that the president’s fate should be decided by voters rather than senators. This brings to mind the classic definition of chutzpah: someone who murders their parents and then begs the court for mercy because they are an orphan.
The whole point of the Ukraine scheme was that Trump was cheating in an effort to gain a personal advantage in the election. The reason it didn’t work as planned was because he got caught — though even after he was caught, he continued to call on Ukraine (and China) for electoral assistance.
If Trump is not removed from office by the Senate, he would surely keep trying the same tactics. He would have every reason to do so — because it might help him win, and because he would reasonably understand that there is no downside, no risk of meaningful consequences if he were caught again.
Trump would be free to keep reaching out to foreign governments for assistance in the election if the Senate does not hold him accountable for what we already know about.
There are multiple competing interests here. People who believe in constitutional democracy want to feel confident in the integrity of the election, and many Americans would understandably feel otherwise if Trump remains in office. They would expect him to keep trying to find ways to put pressure on foreign countries to gain an electoral advantage.
On the other hand, Trump’s supporters would argue they are being denied the opportunity to vote for their preferred candidate if Trump cannot stand for election.
There is a way to bridge the gap here.
When the Senate sits as a jury in an impeachment trial, there are two separate questions. First, the Senate decides whether to remove the impeached person (here, the president) from office. Second, if the Senate votes by a 2/3 majority for removal, it then decides in a separate vote whether to disqualify the person from holding office in the future.
It is possible to vote for removal without disqualifying the impeached person from seeking federal office again. For instance, in 1989 Alcee Hastings was removed from his lifetime position as a federal judge but not disqualified from holding office in the future. Three years after he was removed from the bench, Hastings was elected to the U.S. House of Representatives.
In a functioning system, Republican senators would be lining up with Democrats to defend our Constitution, and Republican voters would make clear that they reject Trump as a deeply corrupt man who is unqualified to hold office, making it clear he had no political future.
But Republican senators seem to steadfastly back the president, come hell or high water, and Trump voters are clearly unfazed by the damning evidence of Trump’s dishonesty and faithless execution of his duties.
Under these circumstances — with a president who has made clear he does not believe ordinary rules constrain him and Republican members of Congress who are unwilling to disabuse him of this notion — it is necessary to think creatively about what we can do to preserve our system.
We must be clear eyed about all of this. It is, as a practical matter, impossible to see 20 Republican senators joining with all 47 Democratic senators to remove Trump from office under any imaginable circumstances — no matter what offense to the constitutional order Trump commits.
In fact, it is eminently possible that every single Republican senator will line up to support the president, just as Republicans in the House signed off on the notion that the president is free to attack the election with impunity when they unanimously voted against the articles of impeachment.
Despite this stark reality, it is still worth trying.
It was essential to impeach the president — even if he is not removed from office by the Senate. Failing to impeach the president would have sent a clear message that the notion of checks on presidential power is a dead letter.
Now that the Senate trial is underway, it is essential to try everything we can think of to set some limits on Trump’s ability to use the power of his office as a way to put his thumb on the scale for November’s election.
The House impeachment managers ought to explicitly remind Senate Republicans that they can convict Trump of high crimes and misdemeanors while separately voting to allow him to stand for election.
If that fails to win any Republican votes, then Democratic senators might consider calling for a vote to formally censure the president. Gaining even one Republican vote for either removal or censure would make it harder for Trump to argue that the process has simply been a partisan witch hunt.
It is a disgrace that it has come to this — that a compromise is the best we can hope for when a corrupt president trashes our constitutional system by using the power of his office in an effort to steal an election.
The reality, however, is that we must try to find the best way forward, the best chance of setting things right — while recognizing that even this proposed compromise is unlikely to work out. Consider it a way to call Trump’s lawyers’ bluff: when they have the nerve to claim that removing the president from office after he used his power in an effort to rig the election in his favor would prevent voters from weighing in, it is worth pointing out that this need not be the case.
Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He has written two books on presidential power, and recently wrote a book chapter describing the problem of constitutional failure in the United States.
