I wonder if the decision to make this a “conscience” vote was driven by morals or by politics. The moral case is clear enough. The political case is that this is a verrrry tough issue for Republicans from purple districts. Various polls since last week show that more than 50 percent of the public supports removing Trump over the Capitol riot, an historically high percentage — assuming that any poll involving Trump can be trusted. For a few select House Republicans who have to worry about swing voters, the politics of this matter are murky. Especially if you think the GOP brand is destined to be further ruined by episodes of domestic terrorism.
Of course, voting to impeach would also come with risks. Like, say, one of your own lunatic constituents murdering you.
Part of me wants to believe that Cheney is making this a “conscience” vote — and making that known to the media — because she refuses to let her caucus members vote no while hiding behind the excuse that leadership made them do it. Here she is holding a up a neon sign: “YOU’RE FREE TO VOTE HOW YOU WISH.” If they vote to give the president impunity for inciting an attack on Congress, they’ll have to defend that decision on the merits.
House Republican leaders won’t whip their colleagues and tell them to vote against the impeachment resolution on Wednesday, according to leadership aides. Rep. Liz Cheney, the No. 3 in GOP leadership who has been sharply critical of Trump’s efforts to overturn the election, did not tell her members how to vote Monday, but she called the impeachment vote a “vote of conscience.” Cheney has not said how she will vote.
The GOP strategy is another marked departure from the approach in 2019 when Republican leaders pushed their members to fall in line and no GOP House lawmakers defected. It shows the splintering of the GOP and how the party is deeply divided over how to respond to Trump after he incited last week’s deadly Capitol riot.
Punchbowl says up to 20 House Republicans might vote for impeachment this time, but I’d bet at least half lose their nerve before tomorrow. It’s one thing to vote against Trump when the potential cost is losing your seat in a primary. It’s another to vote against him when the potential cost is having your family murdered by a terror cult. Here’s a notable quote of which I’m skeptical:
If the House acted faster and put itself in position to send impeachment articles to the Senate late last week – they may have gotten nearly 80 votes – per Republican aide to @washingtonpost
The more Pelosi/Dem leaders wasted time the harder they made it to remove Trump. 👀 pic.twitter.com/4EmSy8UxTe
— Murshed Zaheed (@murshedz) January 12, 2021
Certainly, impeaching him in the first flush of the attack when tempers were up would have drawn more Republican votes than the vote tomorrow will, after members have had time to consider the risk to their careers and their families. But 80 votes? Eighty decent people in this caucus? C’mon.
There are arguments for voting against impeachment on the merits, of course. One is time: Why bother impeaching a president who’ll be out of office before the trial even starts? Schumer is already huddling with Biden about a “bifurcated” agenda in the Senate later this month, with the chamber working on legislation in the morning and then switching over to the trial at 1 p.m., which means the new president’s term will begin disrupted by this mess. Michael Luttig, the conservative former appellate judge, told Byron York today that he thinks the Constitution simply doesn’t allow a trial in the case of an official who’s already left his position. The point of the impeachment clause is to remove bad actors, Luttig told York, not to give the Senate an opportunity to bar a person from running for future office. House GOPers could point to that and claim a good-faith constitutional objection to voting yes — even though it would be in bad faith. After all, under Luttig’s reading, a president basically can’t be disqualified from office for anything he does so long as he does it in the waning days of his term. There just won’t be enough time for the House and Senate to act before the clock runs out.
Another argument against impeachment is that Trump’s appearance at the rally last week was morally reprehensible but not legally actionable. A former federal prosecutor has already made that case in an op-ed, emphasizing that Trump never explicitly called for violence. He told the crowd to go to the Capitol but not to break in. Good grounds to oppose impeachment? Not really, says Ramesh Ponnuru. It’s never been the case that Congress’s power to impeach is limited to statutorily chargeable criminal offenses, although of course presidents always argue that way because it narrows the universe of things they can rightly be removed for.
Recall: George Mason wanted to expand the list of impeachable offenses from treason and bribery to include “maladministration.” Madison objected that the latter term was too broad, and Mason then substituted the phrase that prevailed. Nine months later, he insisted that the Constitution allowed Congress to impeach and remove a president who pardoned, or seemed likely to pardon, a confederate in misconduct.
In other words: A president could act wholly within the Constitution and the statutes — the pardon power is a notoriously expansive one — and Congress could still impeach and remove him for it. Its ability to use that authority was, Madison said, “one security” against such a presidential abuse.
Closely parsing his words at the rally also misses the point. Trump didn’t make a cameo at some generic MAGA gathering that suddenly turned into a riot after he left. That rally was the fruit of two months of “stop the steal” propaganda with the president himself as the chief propagandist. He spent hours every day working hard to convince millions of people that the presidential election had been stolen. He leaned publicly on his own vice president to refuse certification on January 6 despite having been told repeatedly that Pence didn’t have the power. He pressured officials in swing states to “find” votes for him to make up his deficit with Biden and attacked them when they refused. The incitement started on November 3. (Long before that, actually.) When several thousand of his fans came together on certification day and he told them to go to the Capitol because this was America’s last chance to stop the steal, what. did. he. think. would. happen?
Anyway. I’d set the over/under on House Republicans voting to impeach at 10 and take the under. It doesn’t matter anyway, as there are certainly enough votes in the House to impeach and almost certainly not enough in the Senate to convict. The real suspense related to this fiasco is whether House Republicans who aggressively egged on the “stop the steal” hysteria will face any consequences from leadership of the sort Steve King faced for racist remarks. My guess is that the answer is no if McCarthy remains minority leader and yes if Cheney replaces him. Not lookin’ good, although hope springs eternal.