Byron York’s Daily Memo: What if Democrats don’t go through with Trump’s trial?

WHAT IF DEMOCRATS DON’T GO THROUGH WITH TRUMP’S TRIAL? It seems nearly 100 percent certain that Senate Democrats will go ahead with the post-presidential impeachment trial of former President Donald Trump. Democrats have narrow control of the Senate, and most of them just want to do it, just like they wanted to impeach and try Trump a year ago, when he was president.

But at least one Democrat is expressing reservations about holding the trial. Senator Tim Kaine, who was the party’s vice-presidential candidate in 2016, is trying to convince Democratic colleagues that a trial would not only fail to convict Trump but also take away time needed for the Senate to pass a COVID relief bill and other urgent Biden administration priorities. Kaine is working on an alternative measure, a censure of Trump that he believes could win majority support without having to meet the two-thirds requirement for a guilty verdict in an impeachment trial.

“There has to be accountability for the actions of January 6, including accountability for the president who fomented this violent attack on the Capitol,” Kaine told CNN, but “having alternatives on the table is important.” Kaine said he has discussed the issue with dozens of Senate Democrats but has only found “some” interest in censure.

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Despite tepid interest right now, Kaine’s move might gain more momentum as Democrats consider the implications of Tuesday’s vote on Republican Senator Rand Paul’s point of order, which argued that the Senate does not have the constitutional authority to try a former president who is now a private citizen. Democrats were unanimously opposed to Paul’s point, and had hoped many Republicans would join them. But just five GOP senators joined Democrats to defeat Paul in a 55-to-45 vote. On the other side, 45 Republicans voted that a trial for a former president would violate the Constitution.

The vote was seen as a preview of an impeachment trial, and Democrats got only 55 votes for their side. That could mean they’ll get nowhere near the 67 votes they would need to convict former President Trump. After the vote, Paul pronounced impeachment “dead on arrival.”

So what now? Senate Majority Leader Charles Schumer is determined to have a trial and appears eager to use the issue against Republicans. “Only five Republican senators were willing to take a principled stand against this reckless and ill-advised effort by members of this body who are eager to excuse President Trump’s campaign to overturn the election and apparently to excuse his incitement of the mob that every one of us experienced in this Capitol,” Schumer said Wednesday. “I would simply say to all of my colleagues, make no mistake, there will be a trial, and the evidence against the former president will be presented in living color for the nation and every one of us to see once again.”

The question now is whether a majority of Senate Democrats share Schumer’s zeal. If not, there is the Kaine option. Senator Kaine is said to be working on a censure measure that would include a provision invoking the 14th Amendment to bar Trump from holding federal office in the future — essentially the same punishment as an impeachment guilty verdict.

But for the moment, Schumer’s view appears to prevail among Democrats, and a trial is on the way. But if Democrats were to choose the censure route, what would Republicans do? Many GOP lawmakers argue, with good reason, that a post-presidential impeachment is unconstitutional. But a censure resolution would certainly be within Congress’s authority. Would more than five Republicans go along?

It seems certain they would have in the days immediately after the January 6 Capitol riot, when the shock of the event was still fresh. But now, having seen the constitutional weakness of late impeachment, coupled with Schumer’s obvious desire to use impeachment as a partisan hammer against Senate Republicans, it’s not so clear. Some dismiss the question as hypothetical, given Democratic intentions to try Trump. And much would depend on how a censure resolution is worded. In particular, some in the GOP might object to applying to Trump language from the post-Civil War 14th Amendment disqualifying those who “have engaged in insurrection or rebellion against [the Constitution], or given aid and comfort to the enemies thereof.”

It’s just not clear. A trial will probably happen, constitutional defects and all. But if not, a censure debate could become an interesting test for Republicans.

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