Senate should convict Trump, UNC expert says. But will party loyalty prevail?

As members of Congress respond to a mob’s assault on the U.S. Capitol, they may find something else badly damaged under the Capitol dome – the impeachment process itself.

Michael J. Gerhardt, a law professor at the University of North Carolina and an expert on impeachment, says raw partisanship has disabled the Constitution’s mechanism for punishing presidents who abuse their power.

“The fact that people are so intensely committed to their parties has made impeachment ineffective,” he said. “You can’t get people to put party aside and look at the facts. If you can’t get people to do that, then impeachment is no longer an effective measure for addressing presidential misconduct.”

Gerhardt testified before Congress during President Bill Clinton’s impeachment and President Trump’s first. This time, the majority of House members did not need to hear from the good professor about whether an impeachable offense had occurred.

“I don’t think they needed any other fact finding for them to figure there’s a connection between what the president was doing for months – and on January 6 – was to incite a group, the mob, to attack Congress,” he said.

The reason for the House impeachment vote is clear, but the process to come remains murky. Perhaps the biggest question is whether the Senate can, or should, convict a president who will be out of office when a Senate trial begins.

For Gerhardt, the author of a leading text on impeachment, “The Federal Impeachment Process,” the answer is clear: Whether Trump is out of office or not doesn’t matter; accountability does.

“The Constitution doesn’t have a time limit about when an impeachment should be brought. It doesn’t say when any kind of impeachment or trial should start,” he said. “I think when you have a president who commits an impeachable offense right before he leaves office, it’s hard not to believe that the process should apply to that misconduct.”

Impeachment isn’t limited to presidents. The Constitution allows for impeachment of “all civil officers of the United States.” Gerhardt noted that the Senate has twice convicted federal judges who had moved on from their posts, one of whom had been out of office for more than a year.

But this case isn’t about some rogue federal judge. It’s about a president 74 million people voted to award a second term. Some members of Congress say that an impeachment trial after Trump has left office would further divide the nation.

For Gerhardt, that argument is more about Republicans acquitting themselves than it is about convicting the president. “I see it largely coming from people who up and through the morning of January 6 were encouraging people to overturn the election and trying to do that themselves. So I think those people have lost the moral authority to tell the rest of Congress what to do,” he said.

In the Senate it looks unlikely that the required two-thirds of the members will vote to convict a former Republican president who remains popular with his base and might run again in 2024. It will take 17 Republicans joining all the Senate’s 50 Democrats to find Trump guilty.

The prospect of Trump once more evading conviction in the Senate is especially galling, Gerhardt said, because the president would be getting away with the same impeachable offense twice. Both the pressuring of Ukraine to investigate Joe Biden and the push to deny the Electoral College results, he said, involved Trump trying to undermine an election.

Many of the Trump supporters who mobbed the Capitol have been arrested and will face punishment. But the president who conducted his own assault on a democratic institution – the electoral process – may elude a constitutional penalty that partisanship has rendered Congress unable to apply.

This story was originally published January 19, 2021 at 12:00 AM.