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How the GOP Can Convict Trump without Voting Him Out

3 min read

I just found this story in the Washingtonian via Political Wire:

The Impeachment Loophole No One’s Talking About

The gist of it is that, according to Lawrence Tribe, there is a way, spelled out in the Constitution, that the Republicans in the Senate can let Trump be impeached AND removed from office without doing anything except NOT show up.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Art I. Sect. 3 [emphasis added]

In other words, if most Republicans stay away from the vote, then all it takes is 2/3 of the Senators who are present to take the hairpiece of the government’s head.

“The Constitution contains quorum requirements [elsewhere] and clearly distinguishes between percentages of a particular chamber and percentages of ‘members present,'” said Laurence Tribe, a professor of constitutional law at Harvard Law School and the co-author of the book To End a Presidency: The Power of Impeachment. “That language in the provision for Senate conviction on impeachment charges is quite deliberate, creating precisely the possibility” described above.

A former Senate parliamentarian agrees:

“It’s a sliding scale,” says Alan Frumin, the former Parliamentarian of the Senate who now holds emeritus status. “In other words, it’s not an absolute two-thirds, it’s two-thirds of some number. And there you get to the question of the denominator.”

Remember when former Senator Jeff Flake said that if a vote could be held in secret, 30 to 35 GOP Senators would vote to convict? (They only need 20 to do so.) Well, here’s a way they could “vote with their feet” as it  were:

But suppose those 30 senators were seeking a way, as Flake suggested, to remove Trump while avoiding the rage of his base. They might boycott the proceedings—or, when the big day of the vote arrived, mysteriously not show up. With 70 members now present, the number of senators required to convict Trump is no longer 67. It’s 47: exactly the number of seats Democrats and independents currently hold in the Senate.

Now, a quorum does require 51 Senators, so a few Republicans do have to put themselves out there.  But given the cracks that are now appearing in the Senate wall, I think we can get 4. Romney, for one; there is no political punishment Trump’s base can inflict on him. Or, as Flake suggests, just enough GOP Senators could show up to vote “No” while still allowing the 2/3 “Yes” needed to convict.

The Washingtonian article isn’t saying this will happen:

How likely is the above scenario? Not very. But as long as the country is preparing itself for any outcome, we might as well start using the correct numbers. “The rule,” says Frumin, “is pretty clear.”

But I have a suspicion that, after the latest Trump disaster with Turkey, Republicans who have been for some way to get rid of the monster without getting eaten by his henchmen will be thinking whether this might work. Some of Trump’s base will howl, of course, but they might just see that as a lesser problem than letting Trump continue to ruin everything.

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