After a vote suggesting that about half of the Senate has constitutional or prudential concerns over the trial of former President Trump, members are discussing censure as an alternative. I previously supported a censure resolution, but this is censure with a twist. Senator Tim Kaine would add yet another controversy to an array of constitutional issues by electorally barring Trump under the 14th Amendment. With the snap impeachment and a retroactive Senate trial, the country needs another constitutional controversy like Wall Street needs another Reddit stock tip.
Censure is not mentioned in the Constitution because it is a resolution with the view of Congress. Such a statement could allow for bipartisan condemnation. It is also now seen as a type of shadow impeachment. A Senate trial could work to the advantage of Trump if it ends in acquittal. For the first time ever, the House used a snap impeachment and sent the Senate no record to support its article. As before, the Senate can refuse to call witnesses and vote on the record or lack thereof, meaning a brief trial and about half of the Senate rejecting the case. It has led some members back to censure as the effective substitute for conviction.
Part of the controversy of this snap impeachment is using a trial solely for electoral disbarment. The Constitution refers to the trial as to decide on whether to remove “the president” and so that leads some of us to doubt any retroactive trial, while disbarment is an optional punishment for after removal. The Constitution limits the power of the Senate in impeachment trials to “removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”
Retroactive trials remain a close issue even for most scholars who have reached conclusions on either side. Now Kaine and others suggest the Senate can avoid the need for the trial but achieve the same result by a majority vote on censure. At issue is the 14th Amendment section that bars people from holding office if they “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.”
According to Kaine, his censure resolution would make two findings “that it was an insurrection and that President Trump gave aid and comfort to the insurrectionists.” While this would be a workaround of an unattainable impeachment conviction, it would be defended as part of the authority of Congress over any citizen under the 14th Amendment.
read more:
https://jonathanturley.org/2021/02/01/senate-is-playing-the-dangerous-game-with-the-14th-amendment/
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