Sen. Lee takes thoughtful approach to impeachment questions

There’s little doubt that Utah Sen. Mike Lee will vote against convicting former Pres. Donald Trump when the Senate holds its impeachment trial in several days. But it might surprise a lot of Utahns that Lee sees the issues involved as quite complex. A vote against convicting is not cut-and-dried for him.

I had a nice chat recently with Lee and he explained his thinking about the second Trump impeachment and the impending Senate trial. It was a lot of talk about constitutional text, principles and precedent. Lee is erudite and thoughtful in his analysis.

Lee said he disagrees with Trump’s refusal to accept the election results and his pressure on Congress and former Vice President Mike Pence to not certify the Electoral College results as submitted by the states. He said Congress has a narrow, ministerial role in certifying presidential elections. “We open the electoral votes and count them,” he said. It would have been a violation of constitutional duties to do anything else.

But the question is whether Trump’s actions, including his rally speech on Jan. 6, rise to the level where conviction is warranted, Lee said, especially because Trump is no longer president.

Two key issues are front and center. The first is whether it is even constitutional to try a president who has left office. The second is whether Trump’s speech and actions actually incited insurrection – caused the mob to attack the U.S. Capitol on Jan. 6.

Lee called the constitutional question “a close call”. He said the Constitution is somewhat ambiguous on Senate authority to try someone who is no longer in office. “I look at the constitutional text and ask, ‘What is our authority and the extent of it?’ Some look at text and it’s immediately clear and unambiguous that we do have jurisdiction. Others say we don’t.”

The text itself, Lee said, “could possibly be interpreted either way.” But after carefully reviewing both text and precedent, “Ultimately I come down on the side that we do not have jurisdiction, and ought not exercise impeachment, after a president has left office.”

Some pro-impeachment scholars and members of Congress note that the Constitution refers to both removal from office and a prohibition against holding future office. While they concede it is impossible to remove someone from office who is already gone, they argue that it IS possible to prohibit Trump from holding future office, and that constitutional possibility justifies holding an impeachment trial. 

But Lee agrees with scholars who posit that the word “and” ties the two actions together and one can’t be done without the other. “We arguably can’t exercise the power to disqualify someone from holding future office unless we also exercise the power to remove from office.” And because Trump is already gone, he can’t be removed from office. “There can be no disqualification from holding future office unless it is immediately preceded by removal from office. That supports the conclusion that we should not exercise jurisdiction in this matter.”

Lee also looks at precedent and notes that the U.S. Senate has never convicted anyone if the person impeached was no longer in office. He is concerned that a conviction against Trump would set a precedent, “a slippery slope,” resulting in impeachment becoming even more of a partisan tool.

Suppose a “red wave” election occurred, Lee said, and Republicans won large majorities in the House and Senate. Many Republicans believe Hillary Clinton committed grave offenses when she was secretary of state. They believe James Comey and other members of the Obama administration spied on political enemies.

“If we exercise jurisdiction here, one could argue there’s no textual reason why we couldn’t conduct impeachment trials for any number of former officials we believe behaved badly,” Lee said. “Old grievances could be brought back. This is unhealthy. It would end badly.”

Thus, Lee said, while the question of Senate jurisdiction is a close call, the safe conclusion, the one that will avoid massive future problems, is to reject the notion that the Senate should hold the trial.

On the issue of whether Trump incited insurrection, Lee is very concerned that the House never adequately addressed that question in its impeachment proceedings. There was little due process and not much debate. “They conducted a snap impeachment.” The House should have been more precise, and provided evidence, in its charge that Trump incited or induced imminent lawless action.

Lee noted that House Democratic leaders said they didn’t have time to hold hearings and conduct a more thorough investigation. But after impeaching Trump they took several days to deliver the articles to the Senate. “They had plenty of time to provide due process,” Lee said.

The Constitution clearly protects offensive speech, Lee said. The House did not show that Trump’s speech and actions rose to the level of inciting insurrection.

Lee said he will carefully listen to arguments from both sides during the trial. But despite his disappointment in Trump’s language and actions, it is doubtful the Senate has constitutional jurisdiction to try a president who has left office. And it’s doubtful it can be proven that Trump incited insurrection.