Should Remove from Office......

Congress Should Remove Trump from Office, But Let Him Run Again in 2020

Yes, that’s possible. And it might just help get Republicans—and the public—on board with impeachment.

By EDWARD B. FOLEY

Asked at the United Nations on Tuesday about the prospect of impeachment, President Donald Trump responded by accusing Democrats of trying to block him from running for reelection because they fear they cannot beat him at the polls. “They have no idea how they stop me,” he said. “The only way they can try is through impeachment.”

This echoes an argument that Trump’s Republican allies—and some Democrats, including House Speaker Nancy Pelosi, before this week—have been making for months: America’s voters should be the ones to render the verdict on Trump’s fitness for office, and Congress should not deprive voters of this right through impeachment.

But this argument lumps together two distinct functions of the impeachment process: removal from office and disqualification from serving again. Under the Constitution, Congress actually could remove the president for the rest of his term while still letting him seek reelection next year. This approach would duly punish Trump for his 2020 election interference—and take such interference off the table—while still deferring to the will of the electorate. That, in turn, might make the idea of conviction more palatable to Senate Republicans.

Wait, you might ask, isn’t the whole point of impeachment and conviction to prevent the wrongdoer from ever holding office again? No, in fact. Both the Constitution and the Senate’s procedures treat removal and disqualification from holding future office as separate punishments upon a conviction of impeachment. Article I, section 3, clause 7 of the Constitution states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

The Senate’s practice in impeachment cases has been to hold separate votes on removal and disqualification. The removal vote is the same as the vote on whether to convict on the charges presented by the House’s referral of impeachment. The Constitution’s threshold for conviction and removal is “two-thirds of the [Senators] present.” But disqualification is different. The Senate has long taken the position (not without some controversy) that the vote to disqualify an official from again seeking office requires only a simple majority vote, not the higher two-thirds threshold.

With respect to the impeachment of federal judges, the Senate has imposed the distinct punishment of disqualification sparingly—only three times in U.S. history. Somewhat more frequent is the fate of Federal District Judge Alcee Hastings, whom the Senate convicted in 1989 and removed from the bench without the separate punishment of disqualification. Hastings, in fact, went on to run for Congress—and won.

Trump’s potential impeachment represents the first time since the ratification of the 22nd Amendment, which established presidential term limits, that the United States faces the prospect of removing a first-term president who is actively seeking reelection. (Richard Nixon and Bill Clinton were both in their second terms.) That means this is also the first time the Senate can consider whether to remove the president separately from disqualifying him. And it should consider this option if Congress truly cares about empowering the voters, through the mechanism of the Electoral College, to decide whether to give the incumbent a second term.

None of Trump’s previous improprieties—as disgraceful as they are—justified preventing the voters from being the ones to remove Trump from the White House. His 2016 campaign’s “collusion” with Russia: not sufficiently attributable to him personally, and not involving conduct as an incumbent president. His obstructions of the Trump-Russia investigation: reprehensible, and perhaps even prosecutable after he leaves office, but not sufficient grounds for forcing him out of office before the end of his four-year term. Same point with his Stormy Daniels payments: maybe criminal, but not enough to negate the electoral will of the American people.

The phone call with the leader of Ukraine—during which Trump requested an investigation into his potential 2020 opponent, former Vice President Joe Biden—is different. Now, we have a first-term president who sought to use the powers of his office to tilt the electoral playing field against the opposition party’s leading challenger. Trump, in other words, has attempted to distort the very remedy that Pelosi and others have been pushing for months as an alternative to impeachment: the idea that the voters, rather than Congress, should decide the president’s fate in the 2020 election.

Removing Trump from office for the remainder of his term would disable him from abusing presidential power again and protect the integrity of the electoral process from inappropriate interference. At the same time, letting him run for a second term would permit the American electorate to decide whether Trump, despite his attempt to subvert the system, should have another chance. Put another way, removal without disqualification tailors the remedy to the precise problem: letting Trump run, as he did in 2016, without wielding the powers of incumbency, the right to which he has forfeited by his incapacity to simultaneously serve as president and run a fair reelection campaign.

If Democrats wish to appear principled and not partisan in proceeding with impeachment, they would be wise also to confine themselves to the single charge of the improper Ukraine phone call, rather than seeking to impeach Trump for a wider range of offenses. That way, they justly can say that they are employing impeachment for the sole purpose of protecting the 2020 election from an incumbent’s wrongful efforts to subvert the electorate’s freedom of choice.

Both Democrats and Republicans should be principled and patriotic when considering the grave matter of impeachment. In this hyperpolarized environment, it might be idealistic to expect Senate Republicans to elevate the integrity of elections over party loyalty. But decoupling removal from disqualification lowers the stakes and changes the constitutional calculus. As long as Trump can run again, Republicans cannot hide behind a claim that they are ones protecting voter choice by opposing impeachment. In that case, what’s the patriotic position for Republicans to take?

It would seem that if Republicans care about having presidential elections be genuinely free and fair—so that the voters themselves can decide what they want—then patriotism in service of America’s constitutional democracy leads to this conclusion: Remove Trump from office, so that he cannot abuse incumbency to subvert the electoral process, but let the American people make the judgment on whether or not he gets a second term.