Impeachment of President Donald Trump is necessary but not enough. Conviction, too, is amply warranted but still insufficient. Congress must take that final step and use its rarely invoked constitutional power to disqualify Trump from ever again holding federal office.
If ever a case cried out for application of the disqualification power, this is it: the President of the United States inciting a mob that ransacked parts of the Capitol and resulted in five deaths.
The Constitution provides that, upon impeachment in the U.S. House of Representatives (by majority vote) and conviction in the U.S. Senate (by two-thirds vote), an official can be punished with “removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” Under Senate precedent, disqualification requires a separate vote, after and only if they have voted to convict. And while a two-thirds vote is necessary to convict, the Senate has previously used a lower standard – a simple majority – to disqualify. Over its history, the Senate has convicted and disqualified only three officeholders, including the last person who was impeached before Trump, federal Judge G. Thomas Porteous Jr. in 2010.
The disqualification power, though rarely invoked, is particularly relevant here because of the calendar. Ordinarily, impeachment and conviction carry a heavy penalty: forfeiture of a president’s remaining term in office. But because Trump’s effort to inflame his followers to storm the Capitol crested on January 6 – exactly two weeks before the end of his tenure – there is little practical chance that the House can impeach and the Senate can hold a trial and convict before the natural end of his term on January 20.
So disqualification likely will be the only real way to impose tangible punishment.
Indeed, the Constitution and historical precedent appear to permit the Senate to try a federal official after he leaves office. This has happened once before. On March 2, 1876, Secretary of War William Belknap resigned under political pressure; later that day, the House impeached him. Then, in August 1876, the Senate held Belknap’s impeachment trial (and ultimately acquitted him).
There undoubtedly is a punitive aspect to disqualification; it is necessary to deter treacherous conduct even in the final days and hours of a president’s term in office. And the looming threat of a post-presidency disqualification vote by the Senate could deter Trump from committing further potential abuses of power – from his authority as commander-in-chief to his exercise of the pardon power.
Further, the disqualification power protects against the eventual return of a president who has so seriously abused his power to warrant impeachment. Typically, impeachment and conviction alone would pose a major obstacle to a politician’s re-election. But Trump is anything but typical. He has shown an uncanny ability to hold onto his base of political support through countless scandals. Trump could well try to ride that support to another run for the presidency in 2024.
Think it’s impractical, that he’d be too old? Consider that Trump in 2024 will be nearly the same age that President-elect Joe Biden is now. And Trump has made clear throughout his career in business and politics that he does not easily accept defeat.
Of course, it’s about even more than preventing Trump from holding office again. The impending impeachment of Trump is also about the history books. It’s vital that Congress condemn Trump’s conduct not just in words but also in action – and impose meaningful punishment to stand as a marker for future generations.
Impeachment and conviction without disqualification ultimately would be toothless, permitting Trump to escape with a wag of the finger but minimal concrete consequences. But disqualification sends an unmistakable message: any president who violates the oath of office as Trump has done will be cast out of office and never permitted to return.
Source: Elie Honig, cnn.com/2021/01/12/opinions/impeaching-trump-not-enough-honig/index.html