Trump’s flattery, enticements, misrepresentations, and badgering threats may be criminal violations. They're certainly an impeachable political crime.
AUSTIN SARAT | OPINION CONTRIBUTOR
President Donald Trump seems to have trouble with telephone calls. As his infamous conversation with Ukrainian President Volodymyr Zelenskiy showed, Trump uses the phone to violate his oath of office, abuse his power and commit impeachable offenses.
The president did it again Saturday. He called Georgia’s besieged Republican secretary of state, Brad Raffensperger, from the Oval Office and pressured him to “find 11,780 votes.” Not coincidentally, President-elect Joe Biden carried Georgia by a margin of 11,779 votes, certified after three vote counts.
Congress should now muster its courage and launch a new impeachment inquiry. The president has abused his office again, a “high crime and misdemeanor” for which he was previously impeached.
This time, he used the trappings of his office and his presidential power to try to coerce a state’s highest election official to violate his oath and defraud his state’s voters for the personal benefit of Donald Trump.
Why bother to impeach a president on his way out the door? This time, impeachment would not be about removing him from office, but rather about disqualifying him from running again.
Impeaching Trump on his way out
The Constitution’s Article I, Section 3 provides for “disqualification to hold and enjoy any office of honor, trust or profit under the United States” as a penalty for an impeachable offense. And critically, while removal from office requires a two-thirds vote of the Senate, disqualification is different.
Per the Cornell Law School Legal Information Institute: "Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote, the Senate has determined that disqualification may be accomplished by a simple majority vote."
Such a judgment has never been an issue in the nation’s three presidential impeachments since none of those impeached — Andrew Johnson, Bill Clinton and Donald Trump — were convicted by the Senate.
Disqualification has been imposed as a penalty in three impeachment cases involving judges. The first occurred in 1862 when a Tennessee federal judge, West H. Humphreys, swore allegiance to the Confederacy and pronounced himself a judge of the Confederate District Court.
The Senate voted unanimously to remove him but took a separate vote to disqualify him from future office. Since the Humphreys case, the Senate rules have required a simple majority vote on disqualification.
In 1913, an associate judge of the U.S. Commerce Court, Robert Archbald, was impeached and found guilty of bribery and engaging in business dealings with people appearing before his court. The Senate found that he “willfully, unlawfully, and corruptly took advantage of his official position.” It forever barred him from holding office by a 39-35 vote.
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During the 1936 trial of Judge Halsted Ritter, the Senate did not disqualify him but did answer the question of “whether a two-thirds vote or a simple majority vote was required for disqualification ... by reference to the simple majority vote in the Archbald trial.”
In the third instance of disqualification, Louisiana Judge G. Thomas Porteous was convicted in 2010 for taking cash from lawyers who appeared before him and barred from future office by a vote of 94-2.
These cases lay the basis for impeaching Trump to make sure that he never again holds public office. While no one is eager to put the country through another impeachment drama, we cannot afford to ignore the president’s latest effort to subvert American democracy.
Oath of office means little to Trump
Saturday’s phone call left little to imagination. Trump’s flattery, enticements, misrepresentations and badgering threats have no place among those who hold office in the United States, let alone among those who occupy the highest office in the land.
Some legal experts are already calling for criminal prosecution for his acts, and he could well have committed both federal and state violations. But Trump’s latest offenses are political, so it is appropriate he suffer the Constitution’s political penalty for a crime against the country. And the pardon power is unavailable to protect him from the penalty for impeachment crimes.
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Because the president has repeatedly shown that his oath to preserve, protect and defend the Constitution of the United States means little to him, he must never be allowed to hold office again.
The Congress should use the Constitution’s disqualify provision to register its rejection of the president’s conduct and apply the penalty that Alexander Hamilton described as an "ostracism from the esteem and confidence and honors and emoluments of (this) country.”
Austin Sarat is associate provost and associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Follow him on Twitter: @ljstprof
Source: USA Today
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