tag:theconversation.com,2011:/uk/topics/impeachment-5663/articlesImpeachment – The Conversation2024-02-14T01:19:21Ztag:theconversation.com,2011:article/2226922024-02-14T01:19:21Z2024-02-14T01:19:21ZMayorkas impeached: Is Congress on a witch hunt? 5 ways to judge whether oversight is legitimate or politicized<figure><img src="https://images.theconversation.com/files/575507/original/file-20240214-28-hxtey7.jpeg?ixlib=rb-1.1.0&rect=44%2C8%2C5826%2C3898&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House Majority Leader Steve Scalise (R-LA), right, leaves the U.S. Capitol after the House voted to impeach Homeland Security Secretary Alejandro Mayorkas on February 13, 2024 in Washington, DC. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/house-majority-leader-steve-scalise-leaves-the-u-s-capitol-news-photo/2008968265?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p>After a failed vote to impeach him the previous week, Republicans in the House of Representatives mustered the barest majority in a second try, <a href="https://www.nytimes.com/live/2024/02/13/us/mayorkas-impeachment">214 to 213</a>, and impeached Homeland Security Secretary Alejandro Mayorkas on Feb. 13, 2024. Mayorkas is the first cabinet secretary to be impeached by the House <a href="https://www.cnn.com/2024/02/06/politics/mayorkas-impeachment-cabinet-what-matters">in almost 150 years</a>. </p>
<p>The Senate, controlled by Democrats, is <a href="https://www.nytimes.com/live/2024/02/13/us/mayorkas-impeachment">not expected to charge Mayorkas</a>, allowing him to keep his job.</p>
<p>The vote follows a series of recent moves by the House GOP to exercise Congress’ impeachment power.</p>
<p>In December 2023, the House formally authorized an impeachment investigation of President Joe Biden on <a href="https://www.nytimes.com/2023/09/12/us/politics/mccarthy-biden-impeachment-inquiry.html">potential corruption charges</a> related to his son, Hunter Biden. That investigation is continuing.</p>
<p>In January 2024, Republicans on the U.S. House Committee on Homeland Security <a href="https://www.nytimes.com/2024/01/30/us/mayorkas-impeachment-house.html">approved two articles of impeachment</a> against Mayorkas for <a href="https://www.congress.gov/bill/117th-congress/house-resolution/582/text">“presid(ing) over a reckless abandonment of border security</a> and immigration enforcement” and “releasing hundreds of thousands of illegal aliens into the interior of the United States,” among other charges. </p>
<p><a href="https://avalon.law.yale.edu/18th_century/art2.asp">The Constitution</a> grants Congress the power to impeach and remove “all civil officers of the United States,” including the president, for “treason, bribery, or other high crimes and misdemeanors.” This is part of Congress’ constitutional responsibility to check the other two branches of the federal government through investigative work, ensuring their accountability. </p>
<p>However, <a href="https://www.bu.edu/articles/2023/impeachment-meaning-and-impact/">the impeachment process</a>, <a href="https://doi.org/10.1146/annurev-polisci-072012-113747">like Congress’ oversight work more broadly</a>, is influenced by partisan considerations. Committees conduct <a href="https://www.jstor.org/stable/20680245">more investigations of the incumbent administration</a> when Congress and the presidency are controlled by opposing parties. One possible reason: congressional investigations <a href="https://press.princeton.edu/books/hardcover/9780691171852/investigating-the-president">drive down the president’s approval rating</a>. </p>
<p>How do you know when members of Congress are using investigations to damage political opponents, and when those investigations are legitimate means of enforcing good governance and the rule of law? </p>
<p>Is it possible to separate the “good” investigations from the “bad”?</p>
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<a href="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding man in a well-fitted suit stands and raises his right hand to swear an oath." src="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539565/original/file-20230726-17-5qmkg.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">U.S. Secretary of Homeland Security Alejandro Mayorkas is sworn in during a hearing on July 26, 2023, before the House Committee on the Judiciary concerning oversight of Mayorkas’ agency.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/secretary-of-homeland-security-alejandro-mayorkas-is-sworn-news-photo/1572057397?adppopup=true">Alex Wong/Getty Images</a></span>
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<h2>Politicized oversight</h2>
<p>A skirmish between the House Judiciary Committee, led by Republican Rep. Jim Jordan of Ohio, and the Manhattan District Attorney’s office is just one illustration of why these questions are so important. </p>
<p>In April 2023, as part of his committee’s probe into allegedly politically motivated prosecutions of former President Donald Trump, Jordan sent a <a href="https://judiciary.house.gov/media/press-releases/chairman-jordan-subpoenas-former-new-york-county-district-attorney-official">subpoena for sworn testimony</a> to lawyer <a href="https://www.simonandschuster.com/books/People-vs-Donald-Trump/Mark-Pomerantz/9781668022443">Mark Pomerantz</a>. Pomerantz had previously worked for Manhattan DA Alvin Bragg, whose team had recently issued 34 felony indictments against Trump for, among other charges, falsification of business records via payments <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">to adult film star Stormy Daniels</a>. </p>
<p>In return, Bragg <a href="https://www.nytimes.com/2023/04/11/nyregion/bragg-lawsuit-jim-jordan-trump-indictment.html">sued Jordan in federal court</a> for what Bragg called <a href="https://int.nyt.com/data/documenttools/bragg-v-jordan-complaint-23-cv-3032/b7f1a0e43619867d/full.pdf">an “unprecedented and unconstitutional attack</a>” by the federal government on an ongoing state-level investigation. </p>
<p>A few days later, on April 19, a federal district judge <a href="https://www.politico.com/news/2023/04/19/trump-prosecutor-pomerantz-subpoena-ruling-00092953">decided against blocking Jordan’s subpoena</a>, arguing that there were “<a href="https://www.nysd.uscourts.gov/sites/default/files/2023-04/Bragg%20v%20Jordan%20-%20Opinion.pdf">several valid legislative purposes</a>” for the committee to require Pomerantz to testify. </p>
<p>Bragg, who initially fought the decision, dropped his appeal after he and Rep. Jordan <a href="https://www.politico.com/news/2023/04/21/bragg-trump-investigator-testify-congress-00093364">reached a compromise</a>, in which Pomerantz agreed to testify before the committee. However, <a href="https://www.nytimes.com/2023/05/12/us/politics/trump-case-pomerantz-deposition.html">Pomerantz ultimately refused to answer</a> many of the committee’s questions.</p>
<p>Historically, courts have tended to respond to disputes between different branches of government with this kind of hands-off approach, preferring to let the parties <a href="https://www.everycrsreport.com/reports/R45653.html">work things out among themselves</a>. But apart from legal questions, the Jordan-Bragg dispute raises fundamental questions about the politicization of oversight.</p>
<h2>‘Legislative purpose’ required</h2>
<p>While Congress’ oversight powers are not unlimited, Congress does have the constitutional authority to investigate <a href="https://theconversation.com/congress-investigates-presidents-the-military-baseball-and-whatever-it-wants-a-brief-modern-history-of-oversight-194995">almost anything it wants</a> in the service of a “<a href="https://www.scotusblog.com/2019/07/cases-and-controversies-congress-the-subpoena-power-and-a-legislative-purpose/">legislative purpose</a>” – though Congress’ demands for information about an ongoing criminal case <a href="https://fivethirtyeight.com/features/what-can-house-republicans-actually-do-to-the-manhattan-da/">were unprecedented</a>. </p>
<p>Jordan and McCarthy have argued that the “<a href="https://twitter.com/SpeakerMcCarthy/status/1641574001934757889">weaponiz[ation] of our sacred system of justice</a>” against a political opponent demands the American people’s immediate attention. Democrats called the attacks on Bragg a “<a href="https://www.vox.com/politics/2023/4/12/23680531/jim-jordan-alvin-bragg-trump-indictment">political stunt</a>.”</p>
<p>Members on either side of the aisle aren’t in the business of admitting distasteful intentions as they sing hosannas to truth and accountability. Thus, political science scholars have proposed <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/waynlr64&div=5&id=&page=">several possible guidelines</a> by which observers might judge a congressional investigation’s quality. </p>
<h2>1. Look to the professionals</h2>
<p>The accountability community includes legislative agencies like the <a href="https://www.gao.gov/about/what-gao-does">Government Accountability Office</a>, a nonpartisan watchdog that informs Congress about the functioning of executive programs, and the independent <a href="https://www.oversight.gov/">offices of inspectors general</a> that exist within the largest executive branch agencies.</p>
<p><a href="https://theconversation.com/profiles/claire-leavitt-1351188">As a scholar of American oversight</a>, I argue in forthcoming work that one possible way to identify high-quality oversight is by measuring how well Congress responds to programs and agencies that watchdogs have already identified as particularly at risk for waste, fraud and abuse. </p>
<p>In other words, does Congress look to the corners of the government at which highly informed nonpartisan experts have shined their lights? If so, we can infer that Congress is responding to problems for which there is an established need for oversight. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits sitting at a table, with one talking and gesturing with his hands." src="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539573/original/file-20230726-25-png2p0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">On June 6, 2002, FBI Director Robert S. Mueller III, right, and Glenn A. Fine, inspector general for the U.S. Department of Justice, testify at an oversight hearing before the Senate Judiciary Committee.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/director-robert-s-mueller-iii-right-and-glenn-a-fine-news-photo/74801279?adppopup=true">Scott J. Ferrell/CQ-Roll Call, Inc. via Getty Images</a></span>
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<h2>2. Look to bipartisan cooperation</h2>
<p>If the goal is to assess how oversight is weaponized politically, the most obvious metric might appear to be: Is an investigation bipartisan? Scholars and citizens could look at whether committee reports are issued jointly by the majority and minority parties, and whether both parties sign off on subpoenas and other information requests. </p>
<p>There are problems with using bipartisanship as a sole metric for quality, however. Members of Congress might purposely refuse to work with their opposition, seeking to discredit an investigation by making it appear partisan when in principle it is not.</p>
<p>Additionally, it matters how partisanship is measured. If one Republican joins 20 Democrats on an investigative request, or vice versa, does that equate to bipartisanship? Do the parties actually work collaboratively, or separately? The lack of a specific definition of “bipartisanship” makes it a difficult standard to apply. </p>
<h2>3. Look to information sources</h2>
<p>An important, early part of the oversight process is gathering information about a particular agency or program. Considering the sources of that information is relevant to determining its credibility. Recent scholarship has shown that, under divided government, committees <a href="https://doi.org/10.1017/S0003055422000405">invite a smaller proportion of bureaucrats</a> to testify at hearings. Testimony from civil servants is particularly valuable for administrative oversight, since they are arguably the best positioned to inform Congress about the functioning of the agency programs that they administer.</p>
<p>Thus, a relative dearth of information-sharing between Congress and agency bureaucrats may affect the quality of the information the legislature receives about the government programs they oversee. </p>
<h2>4. Look to effectiveness</h2>
<p>Oversight quality may also be assessed by measuring its effects. Do oversight and investigations actually lead to measurable changes in agency behavior? Research suggests that when Congress chooses to conduct oversight hearings on specific problems in government, those <a href="https://openscholarship.wustl.edu/law_lawreview/vol95/iss5/12/">problems are significantly less likely</a> to recur.</p>
<p>However, these measures tell more about whether an investigation achieved its intended – potentially partisan – goal, and less about whether the investigation itself was rigorous, objective and rooted in facts.</p>
<h2>5. Look to the people</h2>
<p>Finally, oversight quality may simply be in the eye of the beholder. In other words, “good” oversight is whatever Congress – and, by extension, the electorate – says it is. </p>
<p>There is <a href="https://www.jstor.org/stable/2585479">little evidence</a> that voters consciously split their tickets – that is, vote for candidates from different parties on the same ballot. However, in midterm elections, <a href="https://fivethirtyeight.com/features/why-the-presidents-party-almost-always-has-a-bad-midterm/">the president’s party almost always loses seats in Congress</a>, indicating voters’ desire for balance against the incumbent administration. </p>
<p>In the 2022 midterms, the Republican takeover of the House can be largely explained by <a href="https://www.pewresearch.org/politics/2023/07/12/republican-gains-in-2022-midterms-driven-mostly-by-turnout-advantage/">higher turnout among Republican voters</a>. And <a href="https://www.cnn.com/2022/12/17/politics/popular-vote-midterms-what-matters/index.html">Republican candidates received more votes nationally</a> than Democrats. </p>
<p>These results show that citizens who were enthusiastic enough to vote wanted the GOP in charge. Before the midterms, <a href="https://www.cnn.com/2022/11/04/politics/gop-investigations-republican-plans-hunter-biden/index.html">Republicans made no secret of their intentions</a> to investigate President Biden and the Department of Homeland Security, and it is fair to say that voters anticipated this agenda. In the impeachment inquiries directed at Biden and Mayorkas, voters are getting what they were promised. In a democracy, that may be the form of legitimacy that matters most.</p>
<p><em>This article includes <a href="https://theconversation.com/is-congress-on-a-witch-hunt-5-ways-to-judge-whether-oversight-hearings-are-legitimate-or-politicized-203540">material</a> originally published July 31, 2023.</em></p><img src="https://counter.theconversation.com/content/222692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy.</span></em></p>With its impeachment of Homeland Security Secretary Alejandro Mayorkas, the House exercised its oversight power. How can you tell if it was a legitimate use of that power?Claire Leavitt, Assistant Professor of Government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205802024-01-08T19:02:22Z2024-01-08T19:02:22ZTrump’s arguments for immunity not as hopeless as some claim<figure><img src="https://images.theconversation.com/files/568063/original/file-20240105-27-bf9x5s.jpg?ixlib=rb-1.1.0&rect=20%2C0%2C6689%2C4476&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump has claimed that presidents are immune from prosecution for official acts.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiotHarassment/8742cb120b814b02a1475cc58dfd3e9f/photo">AP Photo/Toby Brusseau</a></span></figcaption></figure><p>Former President Donald Trump’s claims of immunity from criminal prosecution will be argued before the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 9, 2024 – on an <a href="https://www.law.cornell.edu/wex/interlocutory_appeal">interlocutory appeal</a> from his trial for election interference. His arguments have been <a href="https://www.nytimes.com/2023/12/01/us/politics/trump-chutkan-immunity.html">rejected by a district court judge</a>, and the Supreme Court has <a href="https://www.cbsnews.com/news/supreme-court-declines-to-fast-track-trump-immunity-dispute-in-blow-to-special-counsel/">declined to weigh in</a> – for now. </p>
<p>Commentators have described his immunity arguments as “<a href="https://www.theguardian.com/us-news/2024/jan/01/donald-trump-legal-problems-ex-president-strategy">frivolous</a>” and “<a href="https://www.msnbc.com/opinion/msnbc-opinion/donald-trump-immunity-claim-rcna119695">absurd</a>.” But such accounts underestimate the arguments’ weight and at times misconstrue them. </p>
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<a href="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in a coat and tie stands in front of an American flag." src="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Special counsel Jack Smith is leading the federal prosecutions against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiot/e5bdeb21b0e84ddf9dd175e866831b32/photo">AP Photo/J. Scott Applewhite</a></span>
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<h2>A related absolute immunity already exists</h2>
<p>Trump claims he is immune from <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf">federal charges on seeking to overturn the 2020 elections</a>.</p>
<p>His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity. Trump’s lawyers are not claiming that he couldn’t be prosecuted for, say, <a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters">shooting a pedestrian on 5th Avenue</a>. They are saying he can’t be prosecuted for so-called “official acts.”</p>
<p>A related immunity has been recognized in the past. </p>
<p>In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions. The principal rationale for this immunity was to allow the president “<a href="https://supreme.justia.com/cases/federal/us/457/731/">maximum ability to deal fearlessly and impartially with the duties of his office</a>.” The case described the president as “<a href="https://supreme.justia.com/cases/federal/us/457/731/">the officeholder [who] must make the most sensitive and far-reaching decisions</a> entrusted to any official under our constitutional system,” and held that the Constitution ensured he was not “<a href="https://supreme.justia.com/cases/federal/us/457/731/">unduly cautious in the discharge of his official duties</a>.” Presidents should not take official actions with the fear of civil liability hanging over their heads.</p>
<p>The question remained whether a president could be criminally charged for his official actions.</p>
<p>Trump claims he cannot. He argues that just as the Constitution protects presidents from civil lawsuits, it also protects them from criminal charges – and for an analogous reason: preserving the president’s ability to make official decisions free from the fear of criminal prosecution. </p>
<p>The brief of special counsel Jack Smith responded that it is actually <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">good if presidents are worried about possible criminal liability</a>. Moreover, while immunity to civil liability makes sense, because civil lawsuits can be filed by practically everyone and for myriads of petty reasons, criminal charges usually relate to weightier concerns, and their filings involve various checks and balances. </p>
<p>Nevertheless, it is conceivable that courts would recognize presidential criminal immunity for official acts. If they do, the question would become how to define “official acts,” and whether the actions forming the basis for Trump’s charges, which include <a href="https://apnews.com/article/donald-trump-investigation-2024-joe-biden-05d0d0d7a0adbec796caecdc6862588b">many interactions with state and federal officials</a>, qualify under that definition. It seems reasonable to believe that many of them do not and are better described as the acts of a candidate seeking reelection. But some of these acts might qualify. </p>
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<h2>The complication from the impeachment clauses</h2>
<p>Yet, the argument for absolute criminal immunity faced a preliminary hurdle: <a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-7">Article 1, Section 3, of the U.S. Constitution</a> states that while “Judgment in Cases of Impeachment shall not extend further than to removal from Office … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, the Constitution explicitly contemplates the criminal prosecution of a president.</p>
<p>As a brief by the special counsel put it, “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.109.0.pdf">the Impeachment Judgment Clause entirely undermines the defendant’s claim</a> that a former president’s immunity from criminal prosecution should be ‘absolute’ … because a former president who has been impeached and convicted will be liable to criminal prosecution.”</p>
<p>Trump’s response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only <a href="https://www.cnn.com/2021/02/13/politics/senate-impeachment-trial-day-5-vote/index.html">57 senators voted to convict him</a>, short of the 67 needed – he was not liable for criminal prosecution. </p>
<p>Trump’s response became the subject of much disparagement. The New York Times called it an “<a href="https://www.nytimes.com/2024/01/02/us/politics/trump-appeals-court-immunity.html">even more audacious argument</a>” than his claim of absolute immunity. But some of that criticism derives from an uncharitable interpretation of Trump’s claims. </p>
<p>Some critics construed the claim to mean that all officials who are subject to impeachment proceedings – which include “<a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-4">The President, Vice President and all Civil Officers of the United States</a>” – could not face criminal charges for official acts unless they were first impeached and convicted of them. </p>
<p>A group of former government officials and constitutional lawyers wrote in a legal brief that Trump’s argument “<a href="https://democracy21.org/wp-content/uploads/2023/12/23-3228-Amici-Br.-of-Former-Govt-Officials-and-Constitutional-Lawyers-No.-23-3228-DC-Cir.pdf">would permit countless officials to evade criminal liability</a>.” They went on to say, “Such an outcome would … contradict decades of practice in which the Executive Branch has prosecuted, and the Judicial Branch has convicted, civil officers for crimes committed while in office – regardless of whether they were first convicted in an impeachment trial.” The special counsel made <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">similar objections</a>. </p>
<p>Indeed, impeachment proceedings are <a href="https://www.loc.gov/nls/new-materials/book-lists/the-history-of-impeachment/">very rare</a>, and most eligible offenders never face an impeachment. Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office. </p>
<p>But these strike me as straw-man arguments. Trump’s claim that a president must be impeached and convicted before he can be criminally liable for official acts is premised on the background absolute immunity Trump has claimed for the presidency. To quote from Trump’s brief before the district court: “<a href="https://s3.documentcloud.org/documents/24015079/trump-motion-to-dismiss.pdf">President Trump was acquitted</a> … after trial in the Senate, and he thus remains immune from prosecution.” </p>
<p>The key word is “remains” because, in Trump’s argument, the impeachment clause provides an exception to the alleged background presidential immunity: Presidents are criminally immune for their official actions, unless they are impeached and convicted for them. In other words, nothing in Trump’s argument prevents the criminal indictment of civil officers who have not been impeached at all, because they do not enjoy absolute criminal immunity to begin with.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of a formal legislative chamber with many people standing at their desks and on a dais." src="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the U.S. Senate are sworn in Jan. 26, 2021, before beginning the second impeachment trial of Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressExplainingTrumpImpeachmentTrial/ee7eea151da8428e99603baf2320052f/photo">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Does acquittal in an impeachment proceeding create or preserve criminal immunity?</h2>
<p>In his late briefs, Trump adds a second line of defense: He claims that his impeachment acquittal independently forestalls his criminal trial because of the ban on <a href="https://constitution.congress.gov/constitution/amendment-5/">“double jeopardy</a>.” That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not. The claim would work only if Trump’s impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel. </p>
<p>But the claim, in any case, is weak and at odds with some other statements Trump’s briefs make. Indeed, since impeachment proceedings are <a href="https://www.govinfo.gov/content/pkg/CPRT-116HPRT38513/html/CPRT-116HPRT38513.htm">not limited to official acts</a>, accepting Trump’s double jeopardy argument would mean that a president could also become immune for unofficial criminal conduct – such as shooting a pedestrian on 5th Avenue – if he were impeached for that act but acquitted. </p>
<p>That argument proves too much, and would also be at odds with then-President Bill Clinton’s agreement to a five-year suspension of his Arkansas law license in a <a href="https://www.nytimes.com/2001/01/19/politics/clinton-reaches-deal-to-avoid-indictment-to-give-up-law-license.html">settlement aimed at preventing his subsequent criminal prosecution for perjury</a> – even though he was acquitted in the <a href="https://guides.loc.gov/federal-impeachment/bill-clinton">impeachment proceeding for that unofficial act</a>.</p>
<p>The stronger version of Trump’s impeachment clauses argument presumes the president’s absolute immunity for official acts. Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not. That is why Trump’s brief states, “<a href="https://www.washingtonpost.com/documents/f25cf425-77ad-4524-8101-fdfabc62ecd7.pdf">A former President is subject to criminal process for his unofficial conduct</a>; and he is subject to criminal prosecution for official acts for which he has been impeached and convicted.” Against a background of absolute immunity, Trump’s impeachment clauses argument is not unreasonable.</p>
<p>It all sounds a bit complicated, but the ensuing conclusion is simple: The impeachment clauses debate is a sideshow. The principal action in this appeal is whether presidents have absolute criminal immunity for official acts. </p>
<p><a href="https://www.newsweek.com/donald-trump-indictment-joe-biden-truth-social-1839004">In our present political culture</a>, Trump’s arguments for criminal immunity – and his corollary take on the impeachment clauses – may be seen by some judges and justices as stronger than some critics anticipate.</p><img src="https://counter.theconversation.com/content/220580/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president has raised several legal arguments that do not yet have clear answers. A constitutional scholar says they’re questions worth asking.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2200162023-12-20T13:28:04Z2023-12-20T13:28:04ZTrump claims Constitution gives him immunity − here’s why judges and the Supreme Court may not agree<figure><img src="https://images.theconversation.com/files/566349/original/file-20231218-19-h1tltf.jpg?ixlib=rb-1.1.0&rect=16%2C4%2C2707%2C1809&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump continues to campaign for president even as he faces multiple criminal indictments.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024Trump/6b19fc93d0634d3694b4adb7a297cb69/photo">AP Photo/Godofredo A. Vásquez</a></span></figcaption></figure><p>Former President Donald Trump has claimed he is <a href="https://www.pbs.org/newshour/politics/judge-pauses-court-deadlines-in-trump-2020-election-case-as-appeal-is-heard-on-presidential-immunity">immune from prosecution</a> – specifically on the federal charges that he tried to <a href="https://theconversation.com/the-most-serious-trump-indictment-yet-a-criminal-law-scholar-explains-the-charges-of-using-dishonesty-fraud-and-deceit-to-cling-to-power-210600">subvert the results of the 2020 presidential election</a>. He says that his actions in connection with the 2020 election were part of his official duties, and he also argues that <a href="https://www.documentcloud.org/documents/24088357-122-trump-reply-re-immunity">because he was not convicted during either of his impeachments</a>, he cannot be tried in a criminal court for his actions.</p>
<p>The trial judge, Tonya Chutkan, <a href="https://www.nytimes.com/2023/12/01/us/politics/trump-chutkan-immunity.html">rejected both of those arguments</a> on Dec. 1, 2023, and <a href="https://www.nytimes.com/2023/12/13/us/politics/trump-immunity-decision-election-case.html">Trump has appealed her ruling</a> to the U.S. Court of Appeals for the District of Columbia Circuit, which <a href="https://www.documentcloud.org/documents/24229331-dc-circuit-oral-arguments?responsive=1&title=1">plans to hear the case on Jan. 9, 2024</a>.</p>
<p>Special counsel Jack Smith, who is prosecuting the case, had <a href="https://www.scotusblog.com/2023/12/special-counsel-asks-justices-to-weigh-in-now-on-presidential-immunity/">asked the Supreme Court to step in</a>, even ahead of the appeals court. He argues that waiting for the appeals process – and an almost certain application afterward to the Supreme Court for review – will delay the trial too long. He says the delay would deprive both Trump of a speedy trial and the American public of a <a href="https://www.scotusblog.com/2023/12/special-counsel-asks-justices-to-weigh-in-now-on-presidential-immunity/">long-awaited resolution of the disputes around the 2020 election</a> – perhaps until after the 2024 presidential election.</p>
<p>The Supreme Court on Dec. 22, 2023 <a href="https://www.nytimes.com/2023/12/22/us/politics/trump-supreme-court-immunity.html">declined to step in</a>, allowing the normal appeals process to move forward. The appeals court’s schedule requires a <a href="https://www.nbcnews.com/politics/donald-trump/court-grants-special-counsels-request-expedite-trumps-immunity-appeal-rcna129615">third round of briefing by both parties</a> – Trump and Smith – to conclude by Jan. 2, <a href="https://www.cadc.uscourts.gov/internet/orders.nsf/279CFE3CFB2A1C7585258A8900788F28/$file/23-3228CCMN.pdf">with oral arguments slated for Jan. 9</a>.</p>
<p>What’s at stake? In broad strokes, Trump’s claim appears to suggest a way he hopes to avoid any potential legal consequences of his actions. The legal issue is more narrow, but with a similar effect: If Trump’s claims are upheld, the prosecution of a former president would still be hypothetically possible, but practically extremely difficult, and only in a very limited set of circumstances.</p>
<p>As a <a href="https://search.asu.edu/profile/3033197">scholar of constitutional law</a>, I know that both questions will have to be resolved, either by the Supreme Court or the appeals court – or both – before Trump’s trial can proceed. Let’s look at each in turn.</p>
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<h2>Official presidential election deception?</h2>
<p>First, Trump argues that the federal charges, including allegations that he defrauded the United States by promoting a conspiracy to block certification of the 2020 election results, are invalid because he was acting in his official capacity as president while taking the actions alleged in the indictment. A <a href="https://www.oyez.org/cases/1981/79-1738">long-standing Supreme Court precedent</a> provides federal officials with immunity from lawsuits for actions they took as part of their official duties.</p>
<p>The current precedent stems from a 1982 Supreme Court decision, in <a href="https://www.oyez.org/cases/1981/79-1738">Nixon v. Fitzgerald</a>, which was a civil lawsuit filed by a former Air Force analyst whom Nixon ordered fired about a year after the analyst testified to Congress about an aspect of defense spending. The ruling in that case was clear: Presidents cannot be sued for actions that fall within what the court called the “outer perimeter” of their official responsibilities. </p>
<p>The court did not define the “outer perimeter” in that case, but some clarity arises from a <a href="https://www.nbcnews.com/politics/donald-trump/federal-appeals-court-denies-trumps-presidential-immunity-defense-e-je-rcna129521">more recent case</a> in which Trump himself was sued for civil damages based on his actions on Jan. 6, 2021. A federal appeals court ruled that Trump’s campaign activities were not official presidential actions, because campaigning is done for the purpose of seeking an office – not as part of the duties of the president.</p>
<p>In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting “<a href="https://www.supremecourt.gov/docketpdf/22/22o155/163234/20201209155327055_no.%2022o155%20original%20motion%20to%20intervene.pdf">in his personal capacity as a candidate</a>,” as distinct from his official capacity as president.</p>
<p>Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.74.0_1.pdf#page=34">matters of public concern</a>” fall within the scope of his presidential duties.</p>
<p>His claim is new, legally speaking, because the Nixon v. Fitzgerald ruling involved a civil case, not a criminal one. And the Nixon case did not address whether a president’s official duties include running for reelection.</p>
<p>The remaining legal question boils down to the vague idea of an “outer perimeter” of official presidential responsibilities. There is one Supreme Court ruling that offers a clue here: In <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a> in 1973, the court ruled that the presidential privilege of confidential consultation with advisers had to yield to “the fair administration of criminal justice.” The court upheld a subpoena Nixon had been fighting.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of the floor of the U.S. Senate with a graphic showing the final vote total of 57-43, to acquit former President Donald Trump of the impeachment charge, incitement of insurrection." src="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump was acquitted by the U.S. Senate during both of his impeachment trials.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpImpeachment/7a6cb9fad80e47759ed2a500a7481652/photo">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Is impeachment acquittal relevant?</h2>
<p>Second, Trump claims the Constitution allows a <a href="https://www.documentcloud.org/documents/24088357-122-trump-reply-re-immunity">former president to be prosecuted in criminal court</a> for actions taken while in office only if he was impeached by the House of Representatives, as Trump was twice, and convicted by the Senate, which did not happen in either case.</p>
<p>The pertinent part of the Constitution says: </p>
<blockquote>
<p>“<a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-7">Judgment in Cases of Impeachment</a> shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”</p>
</blockquote>
<p>Most lawyers agree that a sitting president cannot be indicted or prosecuted while still in office. The Supreme Court has never directly addressed this question, but the Office of Legal Counsel – a part of the Justice Department – concluded in <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">1973 and 2000</a> that prosecuting a sitting president would be a distraction from nationally important duties and responsibilities, and so should be delayed until after the president leaves office.</p>
<p>Trump cannot make that argument because he is no longer president. Instead, he claims that the language of the Constitution says the framers intended potential prosecution only of <a href="https://s3.documentcloud.org/documents/24076885/mtd-const-grounds.pdf#page=18">people who were both impeached and convicted</a>. </p>
<p>However, the Office of Legal Counsel’s research made that clear too: “Neither the Impeachment Judgment Clause nor any other provision of the Constitution <a href="https://www.justice.gov/d9/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf#page=2">precludes the prosecution of a former President</a> who, while still in office, was impeached by the House of Representatives but acquitted by the Senate.” Another memo from the office came to a similar conclusion, while admitting “<a href="https://www.justice.gov/d9/olc/opinions/2000/08/31/op-olc-v024-p0110_0.pdf">the question is more complicated than it might first appear</a>.” Although these findings do not constitute legal precedent, they nevertheless carry considerable weight in legal circles.</p>
<p>In fact, the office’s analysis found that the language of the Constitution was written specifically to allow prosecutions of former federal officials, whether or not they were convicted during an impeachment trial. So, it seems to me unlikely that an appeals court, or the Supreme Court, would adopt Trump’s interpretation of the clause.</p>
<h2>Beyond this specific case</h2>
<p>The core dispute will likely focus on what the “outer perimeter” of presidential duties are, as well as how expansive presidential powers should be. Though Trump appointed three of the <a href="https://www.cadc.uscourts.gov/internet/home.nsf/Content/Judges">D.C. appeals court’s 11 active judges</a> and three of the Supreme Court’s sitting justices, they have not uniformly supported him in prior cases. In a case of this magnitude, they will know that the public is watching and wondering about the strength of that defining principle of American democracy: No person is above the law.</p>
<p><em>This story has been updated to reflect that the U.S. Supreme Court declined on Dec. 22, 2023 to take the immunity case before it is argued in a federal appeals court.</em></p><img src="https://counter.theconversation.com/content/220016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Constitution makes clear that a president who was impeached and convicted can still be prosecuted − but what about one who is acquitted in two impeachment trials?Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2131942023-09-13T12:26:47Z2023-09-13T12:26:47ZWisconsin GOP’s impeachment threat against state Supreme Court justice is unsupported by law and would undermine judicial independence<figure><img src="https://images.theconversation.com/files/547861/original/file-20230912-17-1iffo7.jpeg?ixlib=rb-1.1.0&rect=5%2C0%2C3988%2C2664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Janet Protasiewicz is sworn in as a state Supreme Court justice at the Wisconsin Capitol on Aug. 1, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/janet-protasiewicz-is-sworn-in-for-her-position-as-a-state-news-photo/1650195603?adppopup=true">Sara Stathas for The Washington Post via Getty Images</a></span></figcaption></figure><p>Wisconsin’s April 2023 state Supreme Court election was historic. It was the nation’s <a href="https://pbswisconsin.org/news-item/mega-donors-fuel-over-40-million-in-donations-for-record-shattering-2023-wisconsin-supreme-court-race/">most expensive judicial race ever</a>, with <a href="https://www.wisdc.org/news/press-releases/139-press-release-2023/7390-wisconsin-supreme-court-race-cost-record-51m">over US$50 million</a> in total spending, and it <a href="https://apnews.com/article/wisconsin-supreme-court-election-turnout-record-bac438d1d79e32f0bacdc7d5966adf75">broke turnout records</a> for an off-cycle spring election. </p>
<p>Janet Protasiewicz, a Milwaukee circuit court judge and self-described progressive, won an 11-percentage point victory, shifting the court’s <a href="https://pbswisconsin.org/news-item/2023-wisconsin-supreme-court-race-results-in-a-new-majority/">ideological balance of power</a> at a moment when major legal clashes over abortion and redistricting are looming.</p>
<p>Wisconsin’s Republican-controlled legislature is <a href="https://apnews.com/article/wisconsin-redistricting-republicans-legislature-2a528003e32c3f51f9ef036f6d13f52e">now demanding</a> that Protasiewicz recuse from – that is, excuse herself from – considering two recently filed lawsuits that challenge the state’s legislative maps, which heavily favor the GOP, as unlawful partisan gerrymanders. They argue that she cannot be fair because during her campaign in the nonpartisan judicial race, she received <a href="https://www.followthemoney.org/entity-details?eid=2983981">millions of dollars</a> from the state Democratic Party and criticized the state’s Republican-drawn maps as “<a href="https://pbswisconsin.org/news-item/janet-protasiewicz-daniel-kelly-on-wisconsin-redistricting/">rigged</a>.” </p>
<p>For their part, the state <a href="https://www.followthemoney.org/entity-details?eid=2609919&default=candidate">Republican Party</a> and <a href="https://www.wisdc.org/news/press-releases/139-press-release-2023/7390-wisconsin-supreme-court-race-cost-record-51m">its allies</a> spent millions backing Protasiewicz’s opponent, who once defended a prior version of the maps in court. </p>
<p>Legislators are <a href="https://www.thecentersquare.com/wisconsin/article_5acb7cb2-41d8-11ee-a6b7-b7ae77ba7816.html">threatening to impeach</a> Protasiewicz if she hears the cases.</p>
<p>As this controversy unfolds, it is important to know the law and practice of judicial recusal and impeachment in Wisconsin and beyond – a topic that <a href="https://scholar.google.com/citations?user=H7SA6WQAAAAJ">we</a>, <a href="https://law.wisc.edu/profiles/dclinger@wisc.edu">as scholars</a> of state courts and constitutions, have <a href="https://statedemocracy.law.wisc.edu/featured/2023/explainer-judicial-recusal-in-wisconsin-and-beyond/">studied closely</a>. </p>
<p>In short, recusal is rare, and impeachment is even rarer.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue blazer, blue shirt and tie speaking in front of a flag." src="https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547863/original/file-20230912-17-d0dwof.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Wisconsin Assembly Speaker Robin Vos and fellow members of the GOP want Justice Janet Protasiewicz to recuse herself on gerrymandering cases.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WisconsinSupremeCourt/46c7dbd35909461fbc0933b3f920608e/photo?Query=Wisconsin%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=533&currentItemNo=48">AP Photo/Andy Manis, File</a></span>
</figcaption>
</figure>
<h2>Judges rarely recuse based on campaign activity</h2>
<p>The U.S. Constitution <a href="https://www.law.cornell.edu/constitution/sixth_amendment">guarantees the right to an impartial judge</a>. Additionally, every state has binding rules that prohibit judges from hearing cases involving situations deemed to pose an unacceptable risk of bias, such as when the judge is related to a party in the case or has a personal financial stake in the outcome. </p>
<p>Judges, however, are rarely required to recuse because of views expressed while campaigning or because they received campaign support from someone interested in a case.</p>
<p>When it comes to campaign statements, the U.S. Supreme Court <a href="https://www.oyez.org/cases/2001/01-521">held in 2002</a> that judicial candidates have a First Amendment right to offer their opinions on disputed legal and political issues. Judges, the court recognized, are not blank slates. Whether on the campaign trail or elsewhere, they commonly develop and express views on issues, including ones they later encounter in court. Yet the law presumes that they remain able to adjudicate evenhandedly. Judicial candidates go too far only when they directly promise to make a particular ruling in a case.</p>
<p>As for campaign funds, the U.S. Supreme Court has <a href="https://www.nytimes.com/2009/06/09/us/politics/09scotus.html">only once held</a> that a judge violated due process – the Constitution’s guarantee of fundamental fairness – by hearing a case involving a financial backer. That 2009 case involved a West Virginia Supreme Court justice whose campaign received most of its support from the head of a coal company who had recently lost a $50 million jury verdict. Shortly after taking office, the justice cast the deciding vote to wipe out that verdict on appeal. </p>
<p><a href="https://www.oyez.org/cases/2008/08-22">Dividing 5-4, the U.S. Supreme Court concluded</a> that, taken together, those facts required recusal. But the majority repeatedly stressed that it was “an exceptional case” involving “an extraordinary situation” with facts that were “extreme by any measure.” </p>
<p>The decision has turned out to be one of a kind. We are not aware of any subsequent case, in any court, finding that due process barred a judge from hearing a case because an interested party supported the judge’s campaign. </p>
<p>Wisconsin’s <a href="https://www.wicourts.gov/sc/rules/chap60.pdf">judicial ethics code</a> – essentially the official, legally enforceable rule book for the state’s judges – confirms that judges are generally allowed to hear cases involving campaign supporters. It states that “a judge shall not be required to recuse … based solely on … the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.” The Wisconsin Supreme Court <a href="https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=5794">added this language</a> to the code in 2010, after two of the largest financial backers of the state’s conservative justices filed petitions proposing the change. The court <a href="https://www.jsonline.com/story/news/politics/2017/04/20/wisconsin-supreme-court-weighs-recusal-rules-when-campaign-donors-litigants/100644698/">rejected calls</a> to revisit this rule in 2017. </p>
<p>In Wisconsin and nationwide, <a href="https://statedemocracy.law.wisc.edu/featured/2023/explainer-judicial-recusal-in-wisconsin-and-beyond/">judges have repeatedly declined to recuse</a> themselves based on their campaign statements and financial supporters. </p>
<p>In Wisconsin’s five most recent contested Supreme Court elections, the winning candidates all had <a href="https://www.wisdc.org/follow-the-money/31-nonpartisan-candidates/656-wisconsin-supreme-court-finance-summaries">million-dollar backers</a>. Yet none of those justices has ever recused on that basis, or even been formally asked to do so. In <a href="https://statedemocracy.law.wisc.edu/featured/2023/explainer-judicial-recusal-in-wisconsin-and-beyond/#Other">redistricting cases specifically</a>, justices in North Carolina, Ohio, Pennsylvania and elsewhere have participated despite financial and other ties to one or the other major political party.</p>
<h2>Judicial impeachment uncommon, reserved for serious wrongdoing</h2>
<p>At <a href="https://www.uscourts.gov/judges-judgeships/about-federal-judges">the federal level</a> and <a href="https://www.ncsl.org/about-state-legislatures/separation-of-powers-impeachment">in nearly every state</a>, lawmakers have the power to impeach judges. That authority, however, is traditionally limited to extreme circumstances and has been exercised sparingly.</p>
<p>In Wisconsin, judges – and other officials – can be impeached only for “<a href="https://docs.legis.wisconsin.gov/2011/related/wiscon/_17">corrupt conduct in office, or for crimes and misdemeanors</a>.” The state Assembly can impeach by majority vote, but it takes a two-thirds majority in the state Senate to convict. Republicans currently hold nearly two-thirds of the seats in the Assembly and exactly two-thirds in the Senate. </p>
<p>Only once in Wisconsin’s 175-year history has <a href="https://statedemocracy.law.wisc.edu/research/2023/research-materials-on-1853-impeachment-of-judge-levi-hubbell/">a judge been impeached</a>. That was in 1853, when Milwaukee Circuit Court Judge Levi Hubbell faced 11 articles of impeachment. Allegations ranged from accepting a $200 bribe – about $8,000 today – from a litigant to ruling on loans and debts he purchased through middlemen and taking the court’s money for personal use. Following a trial, the state Senate acquitted him.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An antique photo of a white-haired man with a white beard." src="https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=785&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=785&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=785&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=986&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=986&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547864/original/file-20230912-15-fscnui.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=986&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The one Wisconsin judge impeached in the state’s history: Milwaukee Circuit Court Judge Levi Hubbell, who faced 11 articles of impeachment. Following a trial, the state Senate acquitted him.</span>
<span class="attribution"><a class="source" href="https://www.wicourts.gov/courts/supreme/justices/retired/hubbell.htm">Wisconsin Court System</a></span>
</figcaption>
</figure>
<p>Most states have likewise had no more than one or two judicial impeachments in their histories, and Congress has impeached only <a href="https://www.fjc.gov/history/judges/impeachments-federal-judges">15 federal judges</a>. Since the 1990s, <a href="https://www.nytimes.com/1994/10/05/us/pennsylvania-senate-convicts-a-state-justice.html">Pennsylvania</a>, <a href="https://www.nytimes.com/2000/10/11/us/new-hampshire-supreme-court-justice-is-acquitted-in-his-impeachment-trial.html">New Hampshire</a> and <a href="https://www.nytimes.com/2018/08/14/us/west-virginia-impeach-supreme-court.html">West Virginia</a> are the only states to have impeached a judge, and only the Pennsylvania judge was convicted and removed.</p>
<p>Most past judicial impeachments, whether they have resulted in conviction or not, have involved allegations of criminal acts or other flagrant misdeeds. None rested on a judge’s nonrecusal from a case involving campaign statements or supporters.</p>
<p>Impeachment threats have been <a href="https://www.brennancenter.org/our-work/analysis-opinion/impeachment-and-removal-judges-explainer">more common</a> than actual impeachments, so it remains to be seen whether Wisconsin lawmakers will indeed follow through. </p>
<p>Protasiewicz or her allies could challenge an attempted impeachment in state court, as has happened in <a href="https://www.theatlantic.com/politics/archive/2018/10/impeachment-west-virginias-supreme-court/574495/">some other states</a>. <a href="https://www.jsonline.com/story/news/politics/2023/09/11/lawsuit-seeks-to-block-gop-from-impeaching-protasiewicz/70827248007/">One lawsuit</a> has already been filed. With little governing precedent, it is uncertain exactly how events might unfold.</p>
<p>The stakes could hardly be higher. The impeachment of a recently elected justice based on lawful campaign conduct and a legally grounded decision not to recuse would negate the people’s votes for Protasiewicz, in our view striking a blow to the principle of judicial independence. </p>
<p>It could also be a setback for efforts to overhaul Wisconsin’s electoral maps, which <a href="https://planscore.org/wisconsin/#!2020-plan-statehouse-eg">standard gerrymandering metrics</a> rate as among the <a href="https://statedemocracy.law.wisc.edu/featured/2022/explainer-wisconsins-new-state-legislative-maps-compare-unfavorably-to-other-court-adopted-maps-on-partisan-equity/">most politically skewed</a> in the country.</p><img src="https://counter.theconversation.com/content/213194/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Impeaching a recently elected Wisconsin Supreme Court justice for conduct neither criminal nor corrupt would negate the people’s votes – and strike a blow at judicial independence.Robert Yablon, Associate Professor of Law, Co-Director of the State Democracy Research Initiative, University of Wisconsin-MadisonDerek Clinger, Senior Staff Attorney, State Democracy Research Initiative, University of Wisconsin-MadisonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2134322023-09-12T19:58:20Z2023-09-12T19:58:20ZRepublicans call for impeachment inquiry into Biden – a process the founders intended to deter abuse of power as well as remove from office<p>Yielding to pressure from <a href="https://www.bloomberg.com/news/articles/2023-09-12/mccarthy-hardliner-dilemma-resounds-from-impeachment-to-ukraine">hard-line members of the GOP House</a> caucus, on Sept. 12, 2023, U.S. House Speaker Kevin McCarthy directed the top Republicans in Congress to open a <a href="https://www.theguardian.com/us-news/2023/sep/11/biden-impeachment-inquiry-abject-failure-report">formal impeachment inquiry</a> into President Joe Biden. The Republicans allege that the president committed financial wrongdoing with foreign businesses.</p>
<p>GOP-led congressional <a href="https://www.nytimes.com/2023/09/12/us/politics/mccarthy-biden-impeachment-inquiry.html">inquiries of presidential son Hunter Biden’s records</a> to date <a href="https://www.theguardian.com/us-news/2023/sep/11/biden-impeachment-inquiry-abject-failure-report">have not shown any foreign payment</a> to his father, Joe Biden, or any other evidence of wrongdoing. </p>
<p>But McCarthy said in brief remarks on Sept. 12, 2023, “Taken together, these allegations paint a picture of a culture of corruption.”</p>
<p>Although impeachment inquiries can be misused, those concerned about McCarthy’s actions should consider words spoken at the Constitutional Convention, when the founders explained that impeachment was intended to have many important purposes, not just removing a president from office. </p>
<p>A critical debate took place on July 20, 1787, which resulted in adding the impeachment clause to the U.S. Constitution. Benjamin Franklin, the oldest and probably wisest delegate at the convention, said that when the president falls under suspicion, a “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">regular and peaceable inquiry</a>” is needed.</p>
<p>In my work as a <a href="http://www.clarkcunningham.org/">law professor</a> studying <a href="https://www.washingtonpost.com/politics/2019/01/29/big-trump-case-hinges-definition-emoluments-new-study-has-bad-news-him/">original texts</a> about the U.S. Constitution, I’ve found statements made at the Constitutional Convention explaining that the founders viewed impeachment as a regular practice with three purposes: </p>
<ul>
<li>To remind both the country and the president that he is not above the law. </li>
<li>To deter abuses of power. </li>
<li>To provide a fair and reliable method to resolve suspicions about misconduct.</li>
</ul>
<p>The convention delegates repeatedly agreed with the assertion by George Mason of Virginia that “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">no point is of more importance</a> … than the right of impeachment” because no one is “above justice.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason of Virginia.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason_portrait.jpg">Library of Congress/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Need for deterrence</h2>
<p>One of the founders’ greatest fears was that the president would abuse his power. George Mason described the president as the “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">man who can commit the most extensive injustice</a>.” </p>
<p>James Madison thought the president might “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">pervert his administration</a> into a scheme of stealing public funds or oppression or <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">betray his trust to foreign powers</a>.” Edmund Randolph, governor of Virginia, said the president “will have <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=70">great opportunitys of abusing his power</a>; particularly in time of war when the military force, and in some respects the public money will be in his hands.” </p>
<p>Gouverneur Morris of Pennsylvania worried that the president “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">may be bribed by a greater interest to betray his trust</a> and no one would say that we ought to expose ourselves to the danger of seeing him in foreign pay.” James Madison, himself a future president, said that in the case of the president, “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">corruption was within the compass of probable events</a> … and might be fatal to the Republic.” </p>
<p>William Davie of North Carolina argued that impeachment was “an essential security for the good behaviour” of the president; otherwise, “he will spare no efforts or means whatever to <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=67">get himself re-elected</a>.” Elbridge Gerry of Massachusetts pointed out that a good president will not worry about impeachment, but a “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">bad one ought to be kept in fear</a>.” </p>
<h2>Creating a powerful oversight procedure</h2>
<p>Until the very last week of the convention, the founders’ design was for the impeachment process to <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=432">start in the House of Representatives and conclude with trial in the Supreme Court</a>. </p>
<p>It was not until Sept. 8, 1787, that the convention <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=557">voted to give the Senate instead the power to conduct impeachment trials</a>. </p>
<p>This is clear evidence that the convention at first wanted to combine the authority and resources of the House of Representatives to conduct the impeachment investigation – a body they called “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=159">the grand Inquest of this Nation</a>” – with the fairness and power exemplified by trial in a court. </p>
<p>Even though trial of impeachments was moved from the Supreme Court to the Senate, Congress can still draw on the example of court procedures to accomplish an effective inquiry, especially if they are trying to get information from uncooperative subjects. In many of the investigations that are now part of the House’s impeachment inquiry, the <a href="https://www.washingtonpost.com/graphics/2019/politics/trump-blocking-congress/">Trump administration has refused</a> to hand over documents and blocked officials from testifying to Congress.</p>
<p>The Constitution makes clear that impeachment is not a criminal prosecution: “<a href="https://www.law.cornell.edu/constitution/articlei">Judgment in cases of impeachment shall not extend further than to removal from office</a>.” </p>
<p>If impeachment trials had remained at the Supreme Court, the court could therefore have consulted the rules it has approved for civil cases. It makes sense that when the convention at the last minute decided Congress would have complete power over impeachment, the delegates intended Congress would have at least the same powers the Supreme Court would have exercised.</p>
<h2>When courts are stonewalled</h2>
<p>In civil cases, courts have powerful tools for dealing with someone who blocks access to the very information needed to judge the allegations against him.</p>
<p>The most commonly known method is the rule that says that once a person is legally served with a lawsuit against them, they must respond to the complaint. If they don’t, the court can <a href="https://www.law.cornell.edu/rules/frcp/rule_55">enter a judgment</a> against them based on the allegations in the complaint. But there are other processes as well.</p>
<p>One court tool that could easily be adapted to the impeachment process comes from the federal rules of civil procedure. In a process called “<a href="https://www.law.cornell.edu/rules/frcp/rule_36">request for admission</a>,” one party to a lawsuit can give their opponents a list of detailed factual allegations with a demand for a response.</p>
<p>If the party does not respond, the court can treat each allegation as if it were true, and proceed accordingly. If the respondent denies one or more particular allegations, there is a follow-up procedure called a <a href="https://www.law.cornell.edu/rules/frcp/rule_34">request for production</a>, demanding any documents in their possession or control supporting the denial. If the respondent refuses, again the court has the power to order that the alleged fact be taken as true. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=734&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=734&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=734&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=923&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=923&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=923&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Benjamin Franklin of Pennsylvania.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Benjamin_Franklin_by_Joseph_Duplessis_1778.jpg">Joseph Duplessis/National Portrait Gallery/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Good for the president and the country</h2>
<p><a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=70">Benjamin Franklin told his fellow delegates the story</a> of a recent dispute that had greatly troubled the Dutch Republic. </p>
<p>One of the Dutch leaders, William V, the Prince of Orange, was suspected to have secretly sabotaged a critical alliance with France. The Dutch had no impeachment process and thus no way to conduct “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">a regular examination</a>” of these allegations. These suspicions mounted, giving rise to “the <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71&">most violent animosities & contentions</a>.”</p>
<p>The moral to Franklin’s story? If Prince William had “been impeachable, a regular & peaceable inquiry would have taken place.” The prince would, “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">if guilty, have been duly punished – if innocent, restored to the confidence of the public</a>.”</p>
<p>Franklin concluded that impeachment was a process that could be “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">favorable</a>” to the president, saying it is the best way to provide for “the <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">regular punishment</a> of the Executive when his misconduct should deserve it and for his <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">honorable acquittal</a> when he should be unjustly accused.”</p>
<p><em>Editor’s note: This is an updated version of an article originally published Sept. 26, 2019.</em></p><img src="https://counter.theconversation.com/content/213432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The founders of the United States viewed impeachment as a way to remind the country and president that he is not above the law and to deter abuses of power.Clark D. Cunningham, Professor of law and ethics, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092622023-07-16T09:58:13Z2023-07-16T09:58:13ZSouth Africa’s public protector has a vital watchdog role. Researcher offers tips on how the selection process can be improved<figure><img src="https://images.theconversation.com/files/536831/original/file-20230711-23-s0daqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Public protector Busisiwe Mkhwebane at her impeachment hearing in Cape Town.
</span> <span class="attribution"><span class="source"> Lombard/Gallo Images via Getty Images</span></span></figcaption></figure><p>The end of apartheid in South Africa in 1994 made it necessary to establish several institutions to underpin the country’s new constitutional democracy.</p>
<p>The office of the public protector was one of them. It was established in 1995 to exercise oversight over governmental power. The constitution grants the public protector autonomy to <a href="https://www.oxford.co.za/book/9780195991376-south-african-constitutional-law-in-context">investigate</a> improper government conduct and maladministration. The aim is to enhance government accountability and responsibility, thus safeguarding the public interest. </p>
<p>The term of the third incumbent, Busisiwe Mkhwebane, who was appointed in 2016, has been mired in <a href="https://theconversation.com/a-public-protectors-job-is-to-make-sure-people-stick-to-the-law-not-to-change-it-79931">controversy</a>. She has faced serious criticism and calls for her removal amid allegations of <a href="https://www.dailymaverick.co.za/article/2019-07-23-now-that-the-concourt-has-found-the-public-protector-both-dishonest-and-incompetent-will-parliament-axe-her/">dishonesty and incompetence</a>. She was suspended on 9 June 2022 and is the subject of an <a href="https://pmg.org.za/committee-meeting/36572/">impeachment inquiry</a>. </p>
<p>It’s not the first time the office has been caught up in controversy. Lawrence Mushwana, the second public protector (2002-2009), was <a href="https://www.corruptionwatch.org.za/sas-public-protectors-the-legacies-part-two/">perceived</a> by some as biased towards the governing African National Congress. This raised doubts in some quarters about the institution’s independence and impartiality.</p>
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<strong>
Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>The controversies and their impacts show how important it is to make the right appointment to the position. </p>
<p>I have been teaching and <a href="https://journals.co.za/doi/abs/10.10520/EJC-1a7adf489e">conducting research</a> in organisational psychology and theory for the past decade. My diverse research interests in the areas of professional employee recruitment and selection have provided me with valuable insights into best practices.</p>
<p>In a joint <a href="https://sajhrm.co.za/index.php/sajhrm/article/view/1207">2021 study</a> we examined the recruitment and selection process of South Africa’s <a href="https://www.pprotect.org/">public protector</a>. In our view the <a href="https://www.parliament.gov.za/press-releases/media-statement-committee-nominate-next-public-protector-calls-nominations-or-applications">process</a> is deeply flawed. It needs an overhaul to ensure it is transparent, professional and free from political bias. </p>
<p>In particular, enlisting the expertise of professionals would make the recruitment and selection process more robust, transparent and fair. </p>
<p>Our analysis highlights the need for a comprehensive approach to the process. It must involve multiple stakeholders and expertise from fields such as law, human resources, and work or organisational psychology.</p>
<p>Fixing the flaws will improve competence and public trust in the public protector’s office.</p>
<h2>The public protector</h2>
<p>The public protector is one of six institutions created by <a href="https://openbooks.uct.ac.za/uct/catalog/download/25/32/1275?inline=1">Chapter 9</a> of the South African constitution. The office investigates improper conduct in state affairs and public administration.</p>
<p>It is <a href="https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap24A.pdf">entrusted</a> with monitoring state officials and agencies to promote an effective, ethical and accountable public service. The office plays a vital “<a href="https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap24A.pdf">government watchdog</a>” role in safeguarding the public interest.</p>
<p>Given the public protector’s crucial role in combating corruption and maladministration, the selection of a <a href="https://pmg.org.za/committee-meeting/22629/">“fit and proper”</a> candidate is paramount. Making the <a href="https://journals.co.za/doi/full/10.4102/sajhrm.v19i0.1207">right appointment is key</a> for the institution’s effectiveness and integrity.</p>
<h2>Flaws in the recruitment process</h2>
<p>The constitution <a href="https://journals.co.za/doi/pdf/10.4102/sajhrm.v19i0.1207">outlines</a> the appointment procedures for and functions of the public protector. But it lacks specific guidelines for the recruitment and selection of a suitable candidate. This raises concerns about the fairness of the process and potential political influence. </p>
<p>The <a href="https://journals.co.za/doi/pdf/10.4102/sajhrm.v19i0.1207">Public Protector Act, 1994</a> also outlines the requirements for appointment. But it too does not provide a clear definition of what constitutes a “fit and proper” person for the role. It lists qualifications such as legal expertise, administrative knowledge and cumulative experience of 10 years in the administration of justice, public administration or public finance.</p>
<p>It doesn’t explain why it emphasises 10 years of experience, or why these specific criteria are important. </p>
<p>The act does not promote transparency in the appointment process. Instead of following a professional recruitment and selection approach, it leaves this to a committee of the national assembly. The committee consists of representatives of various political parties. </p>
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<strong>
Read more:
<a href="https://theconversation.com/ghanas-new-chief-justice-gertrude-tokornoo-faces-challenges-but-could-help-transform-the-countrys-courts-208595">Ghana's new chief justice: Gertrude Tokornoo faces challenges, but could help transform the country's courts</a>
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<p>Filling the committee with politicians compromises the professional ethics of recruitment and selection. The committee lacks qualifications in human resources or recruitment. It has no training on the process. Yet, it recommends a candidate to be appointed by the president.</p>
<p>The committee has no clear guidelines or criteria for choosing a fit and proper person for the position. It relies on interviews and personal judgments, leaving room for bias and subjective decision making. The committee does not provide its rationale for the qualities considered during the shortlisting of candidates. </p>
<h2>What needs to happen</h2>
<p>Clear guidelines, competencies and expert input should be established so that a qualified and suitable candidate is appointed for this important role.</p>
<p>The recruitment process should adhere to best practices in human resources. It should use scientific methods to assess candidates’ knowledge, skills and abilities. </p>
<p>Human resources experts can provide insights and expertise in developing the selection criteria, based on job analysis and competency frameworks. They can help develop standardised methods of assessment, including competency-based behavioural assessments. These can be used to evaluate candidates’ qualifications, integrity, reliability, diligence and other required characteristics.</p>
<p>Work or organisational psychology experts would use structured interviews, comprehensive reference checks, and blind or anonymous assessments.</p>
<h2>Effectiveness and integrity</h2>
<p>The recruitment and selection process for a new public protector <a href="https://www.parliament.gov.za/press-releases/media-statement-committee-nominate-next-public-protector-calls-nominations-or-applications">started in May</a>. The current incumbent’s term expires in October. The public protector is appointed for a non-renewable seven-year term. </p>
<p>The appointment directly affects the country’s governance and accountability of public officials. </p>
<p>Selection of unsuitable candidates compromises the effectiveness and integrity of the office. </p>
<p>Our research highlights the urgency of addressing these procedural issues so that the public protector can fulfil its role of protecting the public interest, promoting transparency and upholding democratic principles.</p><img src="https://counter.theconversation.com/content/209262/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandiso Bazana does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Past controversies and their impacts show how important it is to make the right appointment to the position.Sandiso Bazana, PhD Candidate/Research & Teaching Assistant, Grenoble Ecole de Management/Lecturer in Organisational Psychology, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977782023-01-13T20:38:07Z2023-01-13T20:38:07ZVoters have few options to remove George Santos from Congress – aside from waiting until the next election<figure><img src="https://images.theconversation.com/files/504483/original/file-20230113-14-zq62bx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rep. George Santos leaves the U.S. Capitol on Jan. 12, 2023, followed by reporters. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1456010393/photo/embattled-newly-elected-rep-george-santos-is-sought-after-by-reporters-on-capitol-hill.jpg?s=1024x1024&w=gi&k=20&c=5qWU_1KtaUqMVDo7LvMqkWfmL8qHJmVE7XwbaG2rkn8=">Win McNamee/Getty Images</a></span></figcaption></figure><p>There are <a href="https://www.yahoo.com/now/congressman-george-santos-resists-growing-173207994.html">mounting calls</a> from both politicians and voters to force the newly elected apparent fabulist U.S. Rep. George Santos from Congress following revelations he fabricated his background and other details of his life. </p>
<p>But New York’s 3rd Congressional District voters, who elected Santos as their representative in November 2022, cannot directly force him out of office until the next election, in November 2024. </p>
<p>It appears that Santos, who beat Democrat Robert Zimmerman during the 2022 midterm election, has woven a web of lies about his personal and professional background, some of them touching on on major historical and tragic events. <a href="https://forward.com/news/529130/george-santos-jewish-lie-genealogy-records/">Santos falsely claimed</a>, for example, to have Jewish ancestry and said that his maternal grandparents fled to Brazil during the Holocaust. He also said that the Sept. 11, 2001, terrorist attacks seemingly “<a href="https://www.washingtonpost.com/politics/2022/12/29/george-santos-mother-911-death/">claimed” the life</a> of his mother – who actually died in 2016.</p>
<p>Santos said he graduated from Baruch College in the top 1% of his class and from NYU’s Stern School of Business – but <a href="https://www.nytimes.com/2022/12/26/nyregion/george-santos-interview.html?searchResultPosition=3">he never attended</a> either institution, nor did he graduate from college. </p>
<p>He also lied about his work experience, <a href="https://fortune.com/2022/12/27/george-santos-admits-lies-college-graduation-citigroup-goldman-sachs-jewish-long-island-queens/">falsely claiming</a> Citigroup and Goldman Sachs as former employers. </p>
<p><a href="https://www.nytimes.com/2022/12/26/nyregion/george-santos-interview.html">Santos has since admitted</a> to embellishing parts of his résumé and said that he has not worked for CitiGroup or Goldman Sachs – and does not have a college degree. </p>
<p>Although a <a href="https://dankennedy.net/2022/12/23/a-long-island-weekly-had-the-goods-on-santos-several-weeks-before-election-day/">local weekly newspaper</a> raised questions about his background in September, the story did not gain traction until <a href="https://www.washingtonpost.com/media/2022/12/29/north-shore-leader-santos-scoop/">The New York Times published its</a> own story in December 2022. If the voters had known about these lies before the election, Santos might have lost. </p>
<p>As a scholar of <a href="https://case.edu/law/our-school/faculty-directory/jonathan-l-entin-0">constitutional law</a> and public policy, I think it is important to understand that voters have limited options at this point. Forty states provide for <a href="https://ballotpedia.org/Laws_governing_recall">the recall of state and local elected officials</a>. But there is no <a href="https://www.everycrsreport.com/reports/RL30016.html">federal recall law</a> that could lead to the removal of someone like Santos from Congress.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits raise their hands, surrounded by other men and one women in formal clothing." src="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">George Santos and other members of Congress are sworn into office on Jan. 7, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246172509/photo/fourth-day-of-118th-congress.jpg?s=1024x1024&w=gi&k=20&c=VZpuLG0oZTTghKfdWqOBYoM59EJ6k8tiiCECK5mYY9c=">Elizabeth Frantz/For The Washington Post via Getty Images</a></span>
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<h2>There are few federal options to remove Santos</h2>
<p>The Nassau County Republican Committee and other local offices in Santos’ Long Island district <a href="https://www.aljazeera.com/news/2023/1/11/local-ny-republicans-call-on-disgraced-congressman-santos-to-quit">are calling for</a> him to step down. Several Republican House members have joined the chorus.</p>
<p>Santos, meanwhile, has said that he will not resign. </p>
<p>“I was elected by 142,000 people. Until those same 142,000 people tell me they don’t want me, we’ll find out in two years,” <a href="https://www.reuters.com/world/us/us-rep-santos-opens-door-resignation-if-142-people-ask-2023-01-12/">Santos recently said</a>. </p>
<p>He may be right.</p>
<p>The Constitution says that members of Congress can <a href="https://constitution.congress.gov/browse/article-2/section-4/">be impeached and removed</a> for treason, bribery or other offenses. <a href="https://constitution.congress.gov/browse/article-1/section-5/clause-2/">The Constitution does not</a> specify grounds for expulsion – or actually removing someone from office – leaving that to each chamber of Congress to determine. </p>
<p>The Constitution also says nothing about recall elections. </p>
<p>The Supreme Court has also never specifically addressed the legality of a federal recall, but two other rulings suggest that such a law would be unconstitutional. The court first <a href="https://www.oyez.org/cases/1968/138">determined in 1969</a> that Congress may not refuse to seat a duly elected member who meets the constitutional qualifications for office. And it also <a href="https://www.oyez.org/cases/1994/93-14565">ruled in 1995</a> that states may not impose term limits on members of Congress, because that would add an additional qualification for membership beyond the citizenship, age and residency requirements mentioned in the Constitution. </p>
<p>Even if a federal law authorizing the recall of members of Congress were adopted and survived a legal challenge, the legislative and legal processes would consume virtually all of Santos’ two-year term. So recalling Santos is not a promising option, even if it were legal.</p>
<p>Critics might also try to get the House to expel Santos. But expulsion is exceedingly rare. The House has expelled only five members in its entire history, most for joining the Confederacy <a href="https://www.usatoday.com/story/news/factcheck/2021/01/02/fact-check-14-congressmen-expelled-1861-supporting-confederacy/4107713001/">during the Civil War</a>. </p>
<h2>Ethics concerns are at play, though</h2>
<p>Santos would not be committing any crime simply by telling lies. Maybe he did other things that violated the law – state, federal and Brazilian authorities <a href="https://www.nytimes.com/2022/12/28/nyregion/george-santos-long-island-investigation.html?searchResultPosition=8">are currently investigating</a> whether he used campaign funds for personal expenses, and whether he committed fraud in Brazil by using someone else’s checkbook to pay his bills. </p>
<p>But Santos will not automatically lose his office even if he is convicted of any crime. The House does not require members to forfeit their office in those circumstances – or even if they go to prison. </p>
<p>Santos’ case, however, does raise ethics concerns that members of Congress can address. Two House Democrats from New York <a href="https://www.axios.com/2023/01/10/george-santos-ethics-committee-complaint">have filed ethics complaints</a> against Santos with the House Ethics Committee regarding incomplete financial disclosure forms. </p>
<p>This bipartisan committee investigates alleged law violations by Congress members and makes recommendations to <a href="https://ethics.house.gov/about">the full House</a>. Ethics Committee recommendations are not legally binding. The House itself must consider them, though. In any event, this process probably would extend far into or beyond Santos’ term. </p>
<p>Santos might also resign if the Ethics Committee recommended his expulsion. That has happened on several occasions. In 1986, Sen. <a href="https://www.senate.gov/artandhistory/history/common/expulsion_cases/140HarrisonWilliams_expulsion.htm">Harrison Williams</a> resigned when facing an Ethics Committee’s recommendations that he be expelled because of corruption. In 1995, Sen. <a href="https://www.nytimes.com/1995/09/08/us/packwood-case-overview-packwood-says-he-quitting-ethics-panel-gives-evidence.html">Robert Packwood</a> left his post for the same reason. </p>
<p>Rep. Mario Biaggi of New York also stepped down before an expulsion vote <a href="https://www.nytimes.com/1988/08/06/nyregion/biaggi-quits-will-not-seek-an-11th-term.html">in 1988</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands and leans into a voting box in a gymnasium." src="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=350&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=350&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=350&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=439&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=439&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=439&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Voters in Garden City, New York, vote in October 2020.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1284810362/photo/early-voting-booth-in-nassau-county-new-york.jpg?s=1024x1024&w=gi&k=20&c=u6UksNYbIqqwN8dQxcsXn00wqi7f2czC53Zb79jhBJ0=">Chris Ware/Newsday via Getty Images</a></span>
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<h2>No clear exit ahead</h2>
<p>In short, Santos would be able to serve most or all of his term even if the House did ultimately vote to expel him. But there are additional complications. <a href="https://www.archives.gov/founding-docs/constitution-transcript">The Constitution requires</a> a two-thirds vote to expel a member of Congress. Such a supermajority is unlikely, especially in a House with <a href="https://www.npr.org/2022/12/31/1146453695/republicans-turn-to-2023-with-narrow-house-majority">a narrow majority</a> in which every vote counts and when Republicans might be hard-pressed to win a special election to fill Santos’ vacancy.</p>
<p>Voters who are appalled by George Santos’ apparent lies have little direct leverage to force him out of office quickly. Their first and best opportunity will come in 2024 if Santos decides to seek another term. Voters could defeat him in the Republican primary, where he surely would face opposition. And if he somehow survived the primary, he would still have to face a Democrat in the general election.</p><img src="https://counter.theconversation.com/content/197778/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Entin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is no federal recall law that could lead to another election for Santos’ seat. But Santos’ case presents ethics concerns that the House may review.Jonathan Entin, Professor Emeritus of Law and Adjunct Professor of Political Science, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968512022-12-19T21:11:18Z2022-12-19T21:11:18ZEven if Jan. 6 referrals turn into criminal charges – or convictions – Trump will still be able to run in 2024 and serve as president if elected<figure><img src="https://images.theconversation.com/files/501993/original/file-20221219-26-noptxz.jpg?ixlib=rb-1.1.0&rect=0%2C190%2C7935%2C5012&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Looming large over proceedings.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-of-former-president-donald-trump-is-displayed-as-news-photo/1245731847?phrase=January%206&adppopup=true">Jim Lo Scalzo-Pool/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.washingtonpost.com/national-security/2022/12/19/jan-6-committee-hearings-live-updates/?itid=hp-top-table-main_p001_f001">criminal referral of Donald Trump to the Department of Justice</a> by a House committee investigating the Jan. 6 attack <a href="https://www.npr.org/2022/12/19/1143415487/the-jan-6-committee-is-about-to-have-its-last-hearing-heres-what-to-expect">is largely symbolic</a> – the panel itself has no power to prosecute any individual.</p>
<p>Nonetheless, the recommendation that Trump be investigated for four potential crimes – obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and inciting, assisting or aiding or comforting an insurrection – raises the prospect of an indictment, or even a conviction, of the former president.</p>
<p>It also poses serious ethical questions, given that Trump has already <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced a 2024 run for the presidency</a>, especially in regards to the referral over his alleged inciting or assisting an insurrection. Indeed, a <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Department of Justice investigation</a> over Trump’s activities during the insurrection is already under way.</p>
<p>But would an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
<figure class="align-left ">
<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
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<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection …</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol. And one of the four criminal referrals made by the Jan. 6 House committee was over Trump’s alleged role in inciting, assisting or aiding and comforting an insurrection.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
<figure class="align-right ">
<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
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<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. </p>
<p>But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office. Of course, managing a presidency from a prison cell would in itself raise myriad issues in regards the handling of sensitive or classified documents.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p>
<p><em>Editor’s note: This is an updated version of an <a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">article originally published</a> on Nov. 16, 2022.</em></p><img src="https://counter.theconversation.com/content/196851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A House panel made four criminal referrals in relation to Donald Trump’s alleged role in the attack on the Capitol. Convictions might make him an unpalatable candidate but wouldn’t bar him from running.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1966732022-12-15T14:46:13Z2022-12-15T14:46:13ZIs South Africa better off with or without Cyril Ramaphosa?<figure><img src="https://images.theconversation.com/files/501305/original/file-20221215-17-13xluz.jpg?ixlib=rb-1.1.0&rect=10%2C57%2C974%2C621&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>President Cyril Ramaphosa came to the helm of South Africa’s governing party, the African National Congress (ANC) <a href="https://theconversation.com/who-is-cyril-ramaphosa-a-profile-of-the-new-leader-of-south-africa-89456">in 2017</a> on an anti-corruption, or anti-state capture, platform. The ANC’s 54th elective conference gave him a mandate of renewing the party, and simultaneously reversing the <a href="https://pari.org.za/betrayal-promise-report/">state capture</a> phenomenon that had characterised much of the country 10 years under his predecessor Jacob Zuma. </p>
<p>But, now, he himself has been caught up in controversy over the theft of thousands of American dollars allegedly kept in contravention of foreign exchange rules at his <a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Phala Phala farm</a> in Limpopo in 2020. He also allegedly failed to properly report the theft to the police.</p>
<p>This sparked an attempt to have him impeached for allegedly violating the country’s constitution. But, the ANC’s overwhelming majority in parliament saw the impeachment motion being <a href="https://www.news24.com/citypress/politics/drama-defiance-retraction-mps-back-ramaphosa-against-impeachment-20221213">defeated</a>.</p>
<p>This has led to many to ask whether the country would be better off with or without Ramaphosa. </p>
<p>This is not an easy question. But it is one that has been on the minds of many in the country since the eruption <a href="https://www.timeslive.co.za/news/south-africa/2022-06-01-arthur-fraser-lays-criminal-charges-against-ramaphosa-says-he-stole-4m/">in June</a> of the Phala Phala scandal.</p>
<p>Given that South Africa runs a party political system at a national level, Ramaphosa emerges through the organisational culture of the governing ANC. The party, specifically its successive leadership after the <a href="https://mg.co.za/article/2007-12-18-zuma-is-new-anc-president/">2007 Polokwane conference</a>, has presided over the weakening of state institutions and a <a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">general collapse of state capacity</a>.</p>
<p>These have had eroded social cohesion in South African society as seen by accelerated levels of <a href="https://theconversation.com/pandemic-underscores-gross-inequalities-in-south-africa-and-the-need-to-fix-them-135070">inequality</a>, <a href="https://theconversation.com/xenophobia-is-on-the-rise-in-south-africa-scholars-weigh-in-on-the-migrant-question-181288">xenophobia</a> and ethnic chauvinism. To ask, therefore, whether South Africa would better off with or without Ramaphosa is to also ask whether the country would be better off without the ANC.</p>
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<strong>
Read more:
<a href="https://theconversation.com/anc-in-crisis-south-africas-governing-party-is-fighting-to-stay-relevant-5-essential-reads-196580">ANC in crisis: South Africa's governing party is fighting to stay relevant - 5 essential reads</a>
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<p>For a period the ANC <a href="https://www.eisa.org/wep/sou1994results1.htm">represented</a> the aspirations of many black people in reversing the political and economic design of colonialism and apartheid. To this extent, it can be said to have encompassed the South African nation. But it has become too inward-looking, at the expense of the development aspirations of the nation <a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">it claims to lead</a>. </p>
<p>Interestingly Ramaphosa straddles these transitions of the ANC. At the beginning of the democratic dispensation in 1994, as a trade unionist, he was an important architect of the country’s constitutional framework. But, now as president of both the party and the republic, he’s embroiled in a scandal over his private business interests. </p>
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Read more:
<a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">The ANC insists it's still a political vanguard: this is what ails democracy in South Africa</a>
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<p>Its an untenable position to be in given the anti-corruption ticket that catapulted him to the helm of the party. </p>
<p>I’ve been researching and observing the ANC and its governance performance over 15 years. My view on these questions is that given the organisational culture that comes with the ANC, and its impact on both government and on South African society, the country would indeed be better off without Ramaphosa. This is regardless of his <a href="https://ewn.co.za/2022/12/02/ramaphosa-s-ability-to-fight-corruption-now-questionable-corruption-watch">anti-corruption campaign</a> which has, in any case, been <a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">weakened by Phala Phala</a>. </p>
<h2>Of Phala Phala and the ANC</h2>
<p>Given that the Phala Phala matter weakens his anti-corruption campaign, the party can either save the president, as it did when it <a href="https://www.reuters.com/world/africa/south-africas-parliament-debate-ramaphosa-farmgate-report-2022-12-13/">voted this week against tabling</a> the report of the parliamentary panel on Phala Phala for discussion. Or, it can hang him out to dry, thus beginning a series of events that weakens the electoral fortunes of the party altogether. </p>
<p>The decision to save him is, of course, premised on the idea that the South African “nation” is inseparable from the ANC. And that equally, the ANC is inseparable from the state. These assumptions increasingly don’t hold true in the country. Voters, especially in urban South Africa, are <a href="https://www.timeslive.co.za/politics/2022-07-29-if-the-anc-becomes-a-rural-party-it-will-be-the-end-of-the-anc-makwetla/">diversifying their votes</a>.</p>
<p>I agree with the Director of the New South Institute, Ivor Chipkin when <a href="https://www.dailymaverick.co.za/opinionista/2022-12-04-phala-phala-is-not-a-crisis-for-south-africa-it-is-a-crisis-for-cyril-ramaphosa-and-the-anc/">he says:</a>.</p>
<blockquote>
<p>the ANC is not the nation…the party is not the state {and} institution matter more than individuals.</p>
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<p>It has become increasingly clear that the country needs to start thinking of life without the ANC in charge. And that coalitions, albeit unstable in the immediate run, might be desirable to avoid the cliff edge that South Africa stands on.</p>
<h2>Looking forward</h2>
<p>I think that the ANC will continue to be a strong political force in the foreseeable future, even though it has <a href="https://www.nytimes.com/2019/05/10/world/africa/south-africa-election.html">weakened in successive election</a> at local, provincial and national level. </p>
<p>There are now real prospects that the party will poll just above 50% needed to form a national government in 2024. This puts the prospect of a <a href="https://theconversation.com/a-stable-national-coalition-government-in-south-africa-possible-but-only-if-elites-put-countrys-interests-first-193828">national coalition government</a> within view. </p>
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Read more:
<a href="https://theconversation.com/can-the-anc-survive-the-end-of-south-africas-heroic-epoch-57256">Can the ANC survive the end of South Africa's heroic epoch?</a>
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<p>The ANC should now show leadership by providing the necessary architecture – including new laws and regulations – to manage coalitions so that they can serve the country well. </p>
<p>This would complement the recent amendment of the Electoral Act enabling independent candidates to run for elections at national and <a href="https://www.iol.co.za/news/politics/cabinet-approves-law-to-allow-independent-candidates-to-contest-as-mps-and-mpls-f8f496d7-39c0-4733-8f71-dfaea11c2a8f">provincial level</a>.</p>
<p>Of course, this possibility is not without its weakness: legislative access or easier entry for independent candidates to contest elections is a zero-sum game for the ANC. But the development of South Africa requires, not the renewal of the ANC, but the enablement of coalitions. </p>
<p>Coalitions are a necessary part of diversifying South Africa’s political culture. This is not about bringing contestation for its own sake, but to find a party political culture that aligns with the country’s constitutional framework. </p>
<p>The future of South Africa hangs in the balance. The country can either continue on its current downward spiral, with a <a href="https://businesstech.co.za/news/lifestyle/598212/young-people-plan-to-leave-south-africa-as-brain-drain-concerns-grow/">growing brain drain</a>, or it can change direction to upward development trajectory. </p>
<p>Either way, this is about much more than the ANC. </p>
<p>Too much time has been spent discussing the societal spill overs from the party’s organisational and <a href="https://theconversation.com/vacuum-of-ideas-at-anc-policy-conference-bodes-ill-for-south-africas-governing-party-188259">intellectual problems</a>.</p><img src="https://counter.theconversation.com/content/196673/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thapelo Tselapedi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It has become increasingly clear that the country needs to start thinking of life without Ramaphosa - and the ANC - in charge.Thapelo Tselapedi, Politics lecturer, Rhodes UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1957382022-12-01T12:22:26Z2022-12-01T12:22:26ZSouth Africa’s President Ramaphosa could be impeached - 3 essential reads on the Phala Phala scandal<figure><img src="https://images.theconversation.com/files/498464/original/file-20221201-24-bknlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Cyril Ramaphosa.
</span> <span class="attribution"><span class="source">Photo by JUSTIN TALLIS/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s President Cyril Ramaphosa may have <a href="https://www.dailymaverick.co.za/article/2022-11-30-sa-politics-in-turmoil-as-panel-says-president-ramaphosa-must-face-impeachment/">an impeachment case to answer</a>. This was the finding of the independent parliamentary panel probing the scandal over the theft of thousands of US dollars stashed illegally on his farm, Phala Phala. The three person panel, headed by former chief justice <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Sandile Ngcobo</a>, found that the president might have breached the constitution and engaged in corrupt activities.</p>
<p>The panel handed its report to the speaker of parliament for the National Assembly to debate ahead of the president’s possible impeachment at a special sitting of parliament. </p>
<p>The Phala Phala affair threatens to derail Ramaphosa’s chances of winning a second term as president of the African National Congress (ANC) at its <a href="https://www.anc1912.org.za/#">national conference</a> in December – and then becoming national president again. </p>
<p>Academics writing for The Conversation Africa have explored the issues.</p>
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<p>Dirk Kotze argues that the Phala Phala scandal has seriously dented Ramaphosa’s credibility. He sets out how Ramaphosa’s business interests are threatening to jeopardise his presidency, with dire consequences for the country given the important economic and political reforms he is pursuing. </p>
<p>Ramaphosa’s first reform agenda is an economic reconstruction and <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-south-africa%E2%80%99s-economic-reconstruction-and-recovery-plan-15-oct">recovery plan</a>. This includes solving persistent power cuts that have devastated the country’s economy. The second task is to unite the highly <a href="https://www.dailymaverick.co.za/article/2018-01-09-ancs-106th-ramaphosas-push-for-unity-continues/">factionalised governing party</a>, the African National Congress, which he leads. </p>
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Read more:
<a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">South African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy</a>
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<p>The Phala Phala scandal is not just a threat for Ramaphosa, but could seriously hurt his party’s prospects as it faces gruelling national and provincial elections in 2024. </p>
<p>Support for the party, which has dominated South Africa’s politics since democracy in 1994, has been sliding steadily in the last two decades. According to Susan Booysen, the ANC contested the last general elections in 2019 with only Ramaphosa as the trump card. “The ANC built its 2019 election campaign around Ramaphosa, after polls showed that he was the only leader who continued to enjoy substantial credibility among voters.” </p>
<p>But his image as anti-corruption champion – and vote winner – is now in doubt because of the Phala Phala scandal. </p>
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Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
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<p>Richard Calland says this is a historic moment for the country. It would be the first time a president’s fitness for office was assessed since parliament adopted the rules for impeachment in 2018, following a Constitutional Court judgment. He explains the impeachment process, observing that the way the panel applies the law will set an important precedent. </p>
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Read more:
<a href="https://theconversation.com/how-to-impeach-a-president-ramaphosa-case-puts-new-rules-to-the-test-in-south-africa-195390">How to impeach a president: Ramaphosa case puts new rules to the test in South Africa</a>
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<img src="https://counter.theconversation.com/content/195738/count.gif" alt="The Conversation" width="1" height="1" />
The impeachment process could derail Ramaphosa’s political career and seriously hurt the governing ANC’s electoral prospects in 2024.Thabo Leshilo, Politics + SocietyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1953902022-11-25T21:26:17Z2022-11-25T21:26:17ZHow to impeach a president: Ramaphosa case puts new rules to the test in South Africa<figure><img src="https://images.theconversation.com/files/497400/original/file-20221125-14071-mujdhp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cyril Ramaphosa</span> <span class="attribution"><span class="source">Photo by Xabiso Mkhabela/Xinhua via Getty Images</span></span></figcaption></figure><p><em>South Africa’s President Cyril Ramaphosa <a href="https://www.iol.co.za/the-star/news/atm-welcomes-impeachment-process-against-ramaphosa-98e69a75-5a82-4f79-9063-9b98cdf5fd1f">faces possible impeachment</a> in the country’s parliament over the illegal stashing of thousands of US dollars at his farm <a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">in 2020</a>. This is not the first time there’s been a threat of impeachment of a president in post-democratic South Africa. His scandal-prone predecessor, Jacob Zuma, <a href="https://www.ndtv.com/world-news/south-african-president-jacob-zuma-defeats-impeachment-vote-1339127">survived an impeachment vote in 2017</a> over the illegal use of public money to renovate his private residence. There is, however, a difference in the process being followed this time. It is the first since parliament adopted rules to guide the process for the impeachment of a president in 2018, following a Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2017/47.html">judgment</a>. Richard Calland explains.</em></p>
<h2>First steps</h2>
<p>This is the first time a process of a motion being tabled and an independent panel being established has been used. That alone makes it a very significant moment. How the panel interprets and then applies “the law” will set an important precedent. It may be subject to judicial review, especially if the panel finds that there is insufficient evidence for the impeachment process to proceed to a full parliamentary inquiry. </p>
<p>The process is triggered when a party with parliamentary representation tables a motion in the National Assembly requesting impeachment.</p>
<p>In this instance, this was done by a small party with <a href="https://www.parliament.gov.za/national-assembly">only two seats</a>, the African Transformation Movement (<a href="https://www.pa.org.za/organisation/atm/">ATM</a>), in terms of section 89 of the <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996">constitution</a>. </p>
<p>Section 89 is one of two parliamentary routes by which a sitting president (or their government) can be removed from office. The other is in terms of section 102 of the constitution, which is a vote of no confidence – a purely political, and, therefore, subjective matter. Several such motions of no confidence were tabled against Jacob Zuma, but he survived them all, as the ruling <a href="https://www.britannica.com/topic/African-National-Congress">African National Congress</a> whip held the line. </p>
<p>Section 89 contains three specific grounds for “impeachment” (although the section does not use the word). The National Assembly may remove the president from office (with a supporting vote of at least two thirds of its members), only when the president: </p>
<ul>
<li><p>has committed a serious violation of the constitution or law </p></li>
<li><p>has committed serious misconduct </p></li>
<li><p>or suffers from an inability to perform the functions of office. </p></li>
</ul>
<p>The fact that this is a parliamentary process, triggered by a particular section 89 motion, and that it requires an objective test to be met, is of very great significance because it requires that an evidence-based finding be made in relation to one or other of the three grounds. </p>
<p>The <a href="https://www.dailymaverick.co.za/article/2018-11-22-house-approves-rules-on-impeaching-a-president/">new rules</a> now provide for a two-stage process to establish whether such evidence exists to justify the removal of the president from office. </p>
<p>The first step is that after the motion has been tabled in parliament, the National Assembly must set up a panel to conduct a “preliminary enquiry relating to a motion proposing a section 89 enquiry.”</p>
<p>The underlying purpose of the panel is to prevent spurious or vexatious impeachment attempts to proceed without any proper evidential basis. </p>
<p>Accordingly, the panel must be composed of “three fit and proper, competent, experienced and respected South Africans, which may include a judge, and who collectively possess the necessary legal competence and experience.” </p>
<p>Parties represented in parliament can nominate people to serve on the panel, whereafter the Speaker of the National Assembly makes the appointment. In this case, the Speaker has appointed former Chief Justice Sandile Ngcobo as the chair.</p>
<p>The motion tabled by the African Transformation Movement seeking Ramaphosa’s impeachment, as leading law reporter Franny Rabkin <a href="https://www.timeslive.co.za/sunday-times/opinion-and-analysis/insight/2022-11-20-an-impeachment-case-to-answer-for-phala-phala-saga/">has pointed out</a>, provides tramlines within which the panel must stay when performing its mandate. This limits the evidence and the allegations that the panel is authorised to consider. </p>
<p>The motion is relatively limited in its target area. It confines itself to the specifics of the mysterious theft of money at Ramaphosa’s Phala Phala farm, and his immediate response to the theft. </p>
<p>Hence, <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Ngcobo</a> is likely to be fastidious with regard to confining the panel’s deliberations. Any evidence or allegation relating to a matter not rooted in the original motion is likely to be disregarded. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
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<p>The panel’s overriding legal responsibility is <em>not</em> to determine whether there is a “prima facie” case – meaning that “at face value” there would appear to be a case to answer. Rather, it is whether there is “sufficient evidence” of one or other of the three grounds for removal from office set out in section 89. </p>
<p>In this case, the third ground – incapacity – does not arise. Instead, the question for the panel is whether there is sufficient evidence of serious misconduct or a serious violation of the law. </p>
<p>The word “serious” here is very significant. If Ramaphosa has broken the law or behaved inappropriately or unwisely in his response to the theft, that will not be enough to meet the test, unless it is “serious”. </p>
<h2>A high bar</h2>
<p>It seems to me that the test of “sufficient evidence” is a subtle but qualitatively higher one than “prima facie”, because the panel is required to consider the evidence presented by the African Transformation Movement and then the president’s response, and to make a finding. </p>
<p>In turn, this means that the chair of the panel and his two colleagues face a rather tricky task because the rules place severe limits on the scope of their investigation. </p>
<p>What the rules say is “in considering the matter” <a href="https://pmg.org.za/tabled-committee-report/3467/">the panel</a> </p>
<blockquote>
<p>may, in its sole discretion, afford any member an opportunity to place relevant written or recorded information before it within a specific timeframe.</p>
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<p>It is clear that the panel has done this, and that the African Transformation Movement, at least, has responded by placing what they claim is <a href="https://www.iol.co.za/the-star/news/atm-to-supplement-its-impeachment-motion-4c57ac76-3f6e-41f0-9419-700c7d0b31a2">further evidence</a> before the panel. But unless it is relevant to the motion, and falls within the tramlines that it set, the other, extraneous evidence will and should be disregarded by the panel. </p>
<p>Having sought evidence from members of parliament – this being a parliamentary process – the panel has also been required to give the president an opportunity to respond. This may explain the delay in the panel concluding its work and the need for a two week extension to <a href="https://www.citizen.co.za/news/phala-phala-deadline-extended-november-2022/">30 November</a>. </p>
<p>After that date, parliament has rightly <a href="https://www.parliament.gov.za/press-releases/national-assembly-consider-independent-panel-report-6-december">postponed rising for the year</a> so that the panel’s report can be debated in early December. </p>
<p>The report is required to make findings and provide reasons for its conclusion, but it can only do so based on the written evidence adduced before it. </p>
<h2>Implications</h2>
<p>Given the threshold test that the rules establish for the performance of its mandate, it is more likely than not that the panel will determine that there is not sufficient evidence. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">South African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy</a>
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<p>Even then, the words the panel uses will be weighed heavily in the balance politically. At the very least, a lot more information is going to be in the public domain about the curious events of that February night in 2020 at the president’s farm, and how he handled the matter.</p>
<p>It could have enormous implications, not just for Ramaphosa’s immediate political future and as well as his long-term legacy, but for constitutional accountability in South Africa.</p><img src="https://counter.theconversation.com/content/195390/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is employed by the University of Cape Town, is a member of the Advisory Council for the Council for the Advancement of the South African Constitution, and is a partner in political risk consultancy The Paternoster Group. </span></em></p>The new process of impeachment requires an objective test to be met.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1944252022-11-16T13:29:52Z2022-11-16T13:29:52ZNo, an indictment wouldn’t end Trump’s run for the presidency – he could even campaign or serve from a jail cell<figure><img src="https://images.theconversation.com/files/495552/original/file-20221116-21-l1o2i3.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C2000%2C1320&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former US President Donald Trump speaks in Palm Beach, Florida, on Nov.15, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-speaks-at-the-mar-a-lago-news-photo/1244812333?phrase=trump&adppopup=true">Photo by Alon Skuy/AFP via Getty Images.</a></span></figcaption></figure><p>Donald Trump <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced his 2024 run for the presidency on Nov. 15</a>. In his address he railed against what he perceived as the “persecution” of himself and his family, but made scant mention of his legal woes.</p>
<p>Confirmation of Trump’s White House bid comes at a curious time – a week after a <a href="https://www.politico.com/news/2022/11/09/2022-election-results-analysis-and-takeaways-00065878">lackluster Republican midterm performance</a> that <a href="https://www.nbcnews.com/politics/2022-election/trump-hurt-republicans-2022-elections-numbers-point-yes-rcna56928">many blamed on him</a>. Moreover, it comes as the former president faces <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">multiple criminal investigations</a> over everything from his <a href="https://www.theguardian.com/us-news/2022/nov/14/donald-trump-handled-records-marked-classified-after-presidency-court-filing-alleges">handling of classified documents</a>, to allegations of <a href="https://theconversation.com/trump-properties-arent-the-only-ones-to-see-wild-valuations-putting-a-price-on-real-estate-isnt-straightforward-191228">falsifying the value of New York properties</a>. There is also the not-so-small matter of a <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">Justice Department investigation</a> into the Jan. 6 storming of the Capitol.</p>
<p>The announcement has led some to speculate that Trump may be hoping that becoming a presidential candidate will in some way <a href="https://www.theguardian.com/us-news/2022/jul/05/trump-2024-run-us-elections-prosecution">shield him from prosecution</a>.</p>
<p>So, does an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age, and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
<figure class="align-left ">
<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted Congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection…</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
<figure class="align-right ">
<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
</figcaption>
</figure>
<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p><img src="https://counter.theconversation.com/content/194425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president made little mention of his personal legal battles as he announced his bid to retake the White House.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1943502022-11-11T14:37:28Z2022-11-11T14:37:28ZPresidential term limits will be hard to scrap in Kenya – here’s what it would take<figure><img src="https://images.theconversation.com/files/494625/original/file-20221110-26-6ww6p8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President William Ruto inspects a guard of honour in Nairobi, Kenya in September 2022. </span> <span class="attribution"><span class="source">Simon Maina/AFP via Getty Images</span></span></figcaption></figure><p>A member of parliament in Kenyan president William Ruto’s governing coalition created a firestorm by suggesting that there was a plan to remove presidential term limits in the country. </p>
<p>Kenya’s constitution sets a <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/130-chapter-nine-the-executive/part-2-the-president-and-deputy-president/310-142-term-of-office-of-president">two-term presidential limit</a>. </p>
<p>The extent of support for the plan within the president’s party, the United Democratic Alliance, is not clear. In early November 2022, the member of parliament, Salah Yakub, mentioned only that there had been “closed-door discussions” on it. </p>
<p>Yakub is a <a href="https://nairobinews.nation.africa/quick-facts-about-fafi-mp-salah-yakub-who-wants-to-scrap-presidential-term-limits/">first-time member of parliament</a>. His statement drew <a href="https://www.kenyans.co.ke/news/81461-uda-issues-statement-over-extending-rutos-term-limit">public rebuke</a> from senior lawmakers aligned to the president’s party. This appears to indicate that Yakub is neither part of the president’s inner circle nor a policy stalwart within the party. It’s possible that his proposal is an ambitious effort to improve his standing within the party.</p>
<p>The United Democratic Alliance distanced itself from Yakub’s statement on the day it was reported.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1589910785584955392"}"></div></p>
<p>If, however, the idea was ever realised, it would mean that Ruto, who is 55 years old, could potentially seek re-election for three additional terms. His main political adversary, <a href="https://theconversation.com/odinga-is-running-his-fifth-presidential-race-why-the-outcome-means-so-much-for-kenya-180605">Raila Odinga</a> of the Orange Democratic Movement party, would effectively be prevented from ever running for president again – he is 77.</p>
<p>Kenya’s term limit was introduced before the 1992 elections and retained in the country’s 2010 constitution. The country is still considered a <a href="https://www.nytimes.com/2022/08/15/world/africa/kenya-election-william-ruto.html">beacon of democracy</a> in a region pervaded by dysfunctional and non-democratic regimes. </p>
<p><a href="https://www.citizen.digital/news/fafi-mp-salah-yakub-wants-presidential-term-limit-removed-age-reduced-to-75-n309014">Yakub’s view</a> is that: </p>
<blockquote>
<p>if a president is doing a good job, then he or she should not be limited by terms.</p>
</blockquote>
<p>This mis-states the function of term limits. </p>
<p>They’re not designed to discourage poor performance. The Kenyan constitution provides other ways of dealing with presidents who engage in gross misconduct. This includes <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/130-chapter-nine-the-executive/part-2-the-president-and-deputy-president/313-145-removal-of-president-by-impeachment">impeachment</a>. </p>
<p>The purpose of term limits is to minimise corruption and abuse of office, open the government to new people and ideas, and infuse the government with more innovative and creative ways to solve national problems. </p>
<p>Most importantly, term limits reinvigorate the country’s democracy and curb the potential for monopoly. They protect the democratic system from turning into a de facto dictatorship, and prevent the incumbent from becoming a president-for-life. </p>
<p>Term limits are especially important in a country such as Kenya where most citizens still believe that an incumbent administration will favour the <a href="https://www.reuters.com/article/us-kenya-election-kibaki-news-idUSGOR34261320071223">president’s ethnic group</a>.</p>
<p>Fortunately for Kenya and its democracy, it will be difficult for any government to get rid of term limits. </p>
<p>The constitution provides <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/160-chapter-sixteen-amendment-of-this-constitution/424-255-amendment-of-this-constitution">complex mechanisms</a> for amending certain fundamental provisions, including the term limit for presidents. One of the requirements is that the proposal would have to be approved by Kenyans in a referendum. Voters are <a href="https://www.theelephant.info/features/2019/08/22/bbi-and-the-referendum-another-false-start/">unlikely to accept</a> any efforts to interfere with what is a robust and effectively functioning constitutional system.</p>
<h2>What stands in the way of changing term limits</h2>
<p>Kenya’s constitution sets down the process for amending its provisions. Changing the president’s term requires:</p>
<ul>
<li><p>securing the votes of two-thirds of both houses of parliament – the senate and national assembly</p></li>
<li><p>and the support of a simple majority of the citizens of Kenya voting in a referendum.</p></li>
</ul>
<p>These provisions show that the drafters of the 2010 constitution were aware of the importance of constitutional stability and predictability. They were also alive to the value of certain provisions in the proper and effective functioning of the country’s democratic institutions, and the rule of law. </p>
<p>This explains why the drafters adopted more stringent mechanisms for amending democracy-enhancing provisions, which, apart from the presidential term, include those protecting judicial independence and those protecting fundamental freedoms as set out under the <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/112-chapter-four-the-bill-of-rights/part-2-rights-and-fundamental-freedoms">bill of rights</a>.</p>
<p>The conditions for securing changes to the constitution are designed to allow Kenyans to participate fully in amendments that could radically alter the nature of their democratic governance architecture.</p>
<p>The 2010 constitution was expected to provide more peaceful mechanisms for dealing with election-related disagreements. A dispute over the presidential results following the 2007 election led to <a href="https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse">widespread violence</a> that killed more than 1,000 people and displaced hundreds of thousands. After elections in 2013, 2017 and 2022, Kenyans made use of constitutional mechanisms to <a href="https://www.aljazeera.com/news/2022/9/5/odinga-accepts-but-disagrees-wi-court-decision-on-kenya-election">peacefully resolve</a> related disputes. Thus, Kenyans have gradually come to accept and respect the rule of law.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-kenyas-judiciary-can-break-the-cycle-of-electoral-violence-182710">How Kenya's judiciary can break the cycle of electoral violence</a>
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<p>It’s not likely that a constitutional amendment to change the presidential term would garner the two-thirds majority in parliament. </p>
<p>First, the ruling party doesn’t hold a two-thirds majority in either house and would need the support of the opposition. The opposition is not likely to grant it, considering the amendment could significantly enhance the president’s ability to remain in power for more than two terms. </p>
<p>Second, Kenyans would probably see the amendment as a naked power grab and a danger to their constitutional order. They could punish the proposal’s supporters during future elections. </p>
<p>Third, the complex and prolonged process involved in amending the constitution could derail Ruto’s policy agenda and reduce his re-election prospects. </p>
<h2>Low chances of success</h2>
<p>This is not the first time that politicians have proposed amendments to presidential term limits. It came up when former president Mwai Kibaki wound up his term of office in 2012. It was inferred in the failed <a href="https://www.bbi.go.ke/">2020 effort</a> to amend the constitution. There were also those who thought that at 61, former president Uhuru Kenyatta was <a href="https://www.capitalfm.co.ke/news/2022/05/atwoli-says-uhuru-just-going-on-leave-hes-young-expect-him-back/">too young</a> to leave office in 2022. </p>
<p>None of these efforts moved beyond politicians’ wishes. Opportunistic constitutional changes are unlikely to succeed, given the <a href="https://www.bbc.com/news/world-africa-60941860">scrutiny from the courts</a> and Kenya’s robust civil society. </p>
<p>In my view, the main party in the ruling coalition should have issued a much stronger statement than it did against the suggestion to increase the president’s term limit. It should have condemned the effort as undemocratic, and designed to weaken Kenya’s relatively robust democratic institutions and the rule of law.</p><img src="https://counter.theconversation.com/content/194350/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Mukum Mbaku receives funding from Weber State University.</span></em></p>The purpose of term limits is to minimise corruption and open the government to new ideas that could solve national problems.John Mukum Mbaku, Professor, Weber State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1898022022-09-07T08:24:16Z2022-09-07T08:24:16ZSouth African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy<figure><img src="https://images.theconversation.com/files/482732/original/file-20220905-12-6ckntm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa came to power promising to revitalise the economy and end corruption.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>South African president Cyril Ramaphosa’s business interests are threatening to derail his presidency and stall his economic and political reform agenda.</p>
<p>Ramaphosa’s reform agenda has two elements. The first is an <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-south-africa%E2%80%99s-economic-reconstruction-and-recovery-plan-15-oct">economic reconstruction and recovery plan</a>. This includes his latest <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-address-nation-energy-crisis-25-jul-2022-0000">energy plan</a> and <a href="https://african.business/2021/06/trade-investment/cheers-and-fears-as-ramaphosa-accelerates-reform/">restructuring</a> of Eskom, the power utility, as well as infrastructure development.</p>
<p>The second is to reunite the governing African National Congress (ANC) after his predecessor Jacob Zuma <a href="https://www.dailymaverick.co.za/article/2018-01-09-ancs-106th-ramaphosas-push-for-unity-continues/">factionalised</a> the party. </p>
<p>Both the economic and political reforms depend on his credibility and his success in overcoming resistance to his agenda. But a number of controversies relating to his business interests have raised questions about his credibility. </p>
<p>The <a href="https://www.timeslive.co.za/politics/2022-06-08-phala-phala-cyril-ramaphosa/">Phala Phala controversy</a> – regarding the theft of foreign currency from his Phala Phala farm in 2020 – is the latest complication caused by his relationship with the private sector. Opposition parties have latched on to it, calling for his impeachment by parliament.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
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<p>It could be argued that Phala Phala has the potential to <a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">seriously harm his public credibility</a> and the international support for his economic reforms. It could also embolden his political opponents within the party, making it difficult to reform and unite it. A closer look at these dynamics is required.</p>
<h2>A reform approach</h2>
<p>Reform is a gradual, incremental programme of change or restructuring. Its intention is to change the status quo by restructuring ineffective state institutions, replacing officials, and reconstructing economic policies and practices. It should not destabilise the situation. </p>
<p>The reformer must enjoy credibility and sufficient popularity, and must have a strategic vision and unwavering commitment to the reform. They must be strong enough to overcome resistance. Successful reformers are, accordingly, regularly accused of being autocratic. </p>
<p>Reform depends on astute strategies, and that is why it is a <a href="https://www.socialwatch.org/node/841">rare phenomenon</a>. </p>
<p>The recent death of <a href="https://theconversation.com/mikhail-gorbachev-southern-africans-have-a-special-reason-to-thank-him-189741">Mikhail Gorbachev</a>, the last leader of the Soviet Union, brings to mind the impediments he <a href="https://www.reuters.com/world/gorbachevs-tragedy-flawed-reformer-an-impossible-mission-2022-08-30/">had to deal with</a> as a reformer and why reform is such a delicate political approach. </p>
<p>The contexts of the Soviet Union and South Africa are very different, but the types of problems a reformer encounters are often similar. Resistance from <a href="https://theconversation.com/mikhail-gorbachev-the-contradictory-legacy-of-soviet-leader-who-attempted-revolution-from-above-189681">inside a party or government</a> is the most pronounced one. For Ramaphosa, success depends on the support of a strong core in the ANC.</p>
<p>Herein lies a big problem: the success of his reform project requires that he also reform the ANC – which is factionalised and <a href="https://www.news24.com/news24/opinions/voices/cyril-ramaphosa-the-anc-is-accused-number-one-for-corruption-20200823">highly corrupt</a> – to make it attractive to voters. </p>
<p>But reforming the party itself involves irreconcilable issues: building party unity versus promoting the values of integrity, ethical conduct, anti-corruption and a service orientation. Greater focus on values will mean that some people, among them leaders, must leave the ANC. Many are resisting and <a href="https://africacenter.org/spotlight/the-challenging-path-to-reform-in-south-africa/">fighting back</a>. </p>
<p>Part of Ramaphosa’s general reform agenda is a reconstruction and <a href="https://www.reuters.com/world/africa/south-africas-ramaphosa-proposes-new-compact-grow-jobs-economy-2022-02-10/">renewal of the economy</a>, which is <a href="https://theconversation.com/south-africas-fiscal-squeeze-warning-signs-ignored-for-too-long-177188">ailing</a>. His direction is not supported by the Left and the more dogmatic party members. </p>
<p>His economic reforms includes a focus on infrastructure development and foreign direct investment, which needs international and private sector support. Hence his drive for a <a href="https://ewn.co.za/2022/07/25/cyril-ramaphosa-social-compact-for-growth-and-jobs-must-make-a-lasting-difference">social compact</a> – public-private partnership – and sectoral master plans. These initially gained some traction, but not sufficient progress has been made to solicit enough public confidence in this approach.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africa-is-trapped-again-what-kind-of-leaders-can-set-the-country-free-187704">South Africa is trapped again: what kind of leaders can set the country free</a>
</strong>
</em>
</p>
<hr>
<p>The COVID pandemic and global economic problems also put the brakes on Ramaphosa’s plans. To maintain support in his party, he has to present his reforms as a continuation of the ANC’s economic philosophy while their content is significantly different. His outreach to the private sector is just as important. The sector is waiting for overt policy changes before the social compact can become reality.</p>
<p>Reform depends on success stories and tangible results. Successes create momentum for more successes and it builds more confidence in the reform approach itself. Ramaphosa struggles to communicate effectively his successes to the public, probably fearing counter-moves by his opponents. They are announced in an ad hoc manner, and therefore lack impact.</p>
<h2>Risks for Ramaphosa</h2>
<p>Prior to the Phala Phala saga, another business related complication arose when John Steenhuizen, the leader of the main opposition Democratic Alliance, <a href="https://www.vocfm.co.za/ramaphosa-refuses-to-disclose-value-of-sons-bosasa-contract/">asked Ramaphosa in parliament a question</a> about his son’s financial relationship with the private company Bosasa. The Zondo commission of inquiry investigating state capture has <a href="https://www.gov.za/sites/default/files/gcis_document/202203/judicial-commission-inquiry-state-capture-reportpart-3-vii.pdf">linked Bosasa</a> to corrupt deals with some ANC leaders. </p>
<p>Ramaphosa’s answer was misinformed and incorrect. He later corrected it in a letter to the speaker of parliament. But the public protector took it further and investigated the funding of his campaign to become ANC president. (Her report was ultimately <a href="https://www.parliament.gov.za/press-releases/parliament-statement-constitutional-court-leave-appeal-application-review-high-court-findings-public-protectors-bosasa-report">set aside</a> by the courts.)</p>
<p>The first of the controversies to dog Ramaphosa regarding his private sector role was related to the massacre of striking mineworkers at Marikana <a href="https://www.sahistory.org.za/article/marikana-massacre-16-august-2012">in 2012</a> and his role as a <a href="https://www.iol.co.za/dailynews/news/cyril-ramaphosa-is-responsible-for-marikana-3fe5271b-160c-45d1-8f8c-ed7575f9ddda">director</a> of the mining company, Lonmin. His detractors used it to question his suitability as a government leader. It continues to <a href="https://www.news24.com/news24/southafrica/news/he-never-sets-foot-in-marikana-widows-want-ramaphosa-to-apologise-commemoration-of-massacre-20220811">haunt him today</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africas-marikana-10-years-on-survey-shows-knowledge-of-massacre-is-low-188777">South Africa's Marikana 10 years on: survey shows knowledge of massacre is low</a>
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<p>Phala Phala came at the worst possible time for Ramaphosa’s reform initiative. Because of it, he is facing an impeachment process in terms of the <a href="https://www.iol.co.za/the-star/news/atm-welcomes-impeachment-process-against-ramaphosa-98e69a75-5a82-4f79-9063-9b98cdf5fd1f">constitution’s section 89</a>. </p>
<p>The <a href="https://www.dailymaverick.co.za/article/2022-08-11-what-lies-beneath-excavating-phala-phala-investigations-and-their-runup-from-mud-and-murk/">public protector and the police’s priority crimes unit, the Hawks</a>, are also investigating it.</p>
<p>The impeachment process will most probably fail in the National Assembly because of the ANC’s majority. But the issue will not disappear before the 2024 general elections. Opposition parties will ensure that it becomes a <a href="https://businesstech.co.za/news/government/118174/anc-admits-zumas-nkandla-has-hurt-its-image/">perennial thorn in the flesh for Ramaphosa</a>.</p>
<p>As any reform strategy depends on the reformer’s credibility and integrity, Phala Phala has seriously dented Ramaphosa’s public credibility, and he may face even more risks ahead of the ANC’s elective national conference in December.</p><img src="https://counter.theconversation.com/content/189802/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ramaphosa’s presidency has been dogged by several controversies related to his business interests.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1657862021-08-06T19:52:15Z2021-08-06T19:52:15ZWhy Andrew Cuomo’s job is more vulnerable to scandal than Donald Trump’s was<figure><img src="https://images.theconversation.com/files/415036/original/file-20210806-15-13zk4r1.jpeg?ixlib=rb-1.1.0&rect=11%2C5%2C3943%2C2620&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York Gov. Andrew Cuomo at a press conference in June, 2021.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/new-york-governor-andrew-cuomo-holds-a-event-to-announce-news-photo/1233470459?adppopup=true">Timothy A. Clary/AFP via Getty Images</a></span></figcaption></figure><p>Riding high in politics frequently means you simply have further to fall – just ask sitting New York Gov. Andrew Cuomo.</p>
<p>Cuomo went from being talked about as a <a href="https://www.cnn.com/2020/03/31/politics/andrew-cuomo-2024-2028-president/index.html">potential presidential candidate</a> in the spring of 2020 – thanks in large part to <a href="https://www.cnn.com/2020/03/24/opinions/thank-god-for-andrew-cuomo-filipovic/index.html">his handling of the COVID-19 pandemic in New York state</a> – to media ridicule and possible <a href="https://www.thecity.nyc/2021/8/4/22610263/cuomo-how-to-impeach-a-governor">state senate impeachment</a> now, due to allegations of repeated sexual harassment occurring over several years.</p>
<p>According to the <a href="https://poll.qu.edu/poll-release?releaseid=3816">Quinnipiac University Poll</a>, Cuomo’s job approval rating among registered voters in New York fell 44 percentage points between May 2020 and August 2021 – to just 28% in a newly released poll, his lowest recorded rating since taking office in 2011.</p>
<p>New York Attorney General Letitia James <a href="https://ag.ny.gov/sites/default/files/2021.08.03_nyag_-_investigative_report.pdf">issued a report</a> on August 3, 2021 finding that Cuomo’s behavior runs afoul of state and federal definitions of sexual harassment. That likely bodes further erosion of his support and may provide the final blow.</p>
<p>Despite the loss of public approval, the pillorying by the press, and <a href="https://www.cnn.com/2021/08/03/politics/andrew-cuomo-democrats-reaction-report/index.html">abandonment by most of his political allies</a>, Cuomo is behaving as though he can hold onto his office, <a href="https://apnews.com/article/cuomo-how-would-impeachment-work-a112f846cbcf7cfad6e72574670105ed">rejecting the charges and excusing his behavior by claiming he’s just a warm kind of guy</a>. He seems to be betting that he is personally stronger than this scandal, a ploy he may have learned from former President Donald Trump. </p>
<p>The nation watched in awe as Trump survived scandal after scandal, <a href="https://www.cnn.com/2016/10/14/politics/trump-women-accusers/index.html">including those of a sexual nature</a>, throughout his presidency and yet remained in office, seemingly untouchable. </p>
<p>With roughly 17 months left in office, the question is: Can Andrew Cuomo do the same? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Crowd on the street, wearing face masks, with a woman holding a 'Resign or Impeach' sign" src="https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415034/original/file-20210806-21-1v2u30v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A protest against Cuomo outside his New York City office on Aug. 4, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-participate-in-a-protest-against-n-y-governor-andrew-news-photo/1234460024?adppopup=true">Stephanie Keith/Getty Images</a></span>
</figcaption>
</figure>
<h2>Trouble at home</h2>
<p>Cuomo has been, and still is, following the overarching Trump playbook for dealing with scandal: if you simply deny having done anything wrong, eventually it will blow over.</p>
<p><a href="https://scholar.google.com/citations?user=0UmsWdAAAAAJ&hl=en">As a scholar of public opinion and polling</a>, I believe that Cuomo faces three big obstacles, however, that Trump did not face: </p>
<ol>
<li><p>He is not Donald Trump, who had a cult of personality behind him that was virtually unshakeable; </p></li>
<li><p>The real force of the <a href="https://metoomvmt.org/">#MeToo movement</a> – the wave of allegations regarding sexual harassment and other forms of misconduct that <a href="https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html">brought down some powerful figures in fields like entertainment, news and politics</a> – only began in late 2017, after much of Trump’s, but before most of Cuomo’s, dirty laundry had aired; and </p></li>
<li><p>Cuomo is a Democratic officeholder, in a Democratic state, and as such is held to a higher standard by his constituency than Trump was when it comes to sexual harassment. </p></li>
</ol>
<p>In other words, Cuomo is in a more vulnerable position, he is facing a public much more attuned to women’s harassment claims, and, most importantly, his constituency is naturally predisposed to judge him harshly on this issue.</p>
<h2>Fallout on both sides</h2>
<p>Being a Democrat, and therefore relying on Democrats as a base for support, is the most difficult obstacle for Cuomo to overcome. </p>
<p>According to a national December 2019 <a href="https://www.cbsnews.com/news/metoo-and-times-up-most-think-the-movements-are-making-progress-cbs-news-poll/">CBS News Poll</a>, 89% of Democrats say sexual harassment and misconduct is a serious problem, including 49% who say the problem is very serious. </p>
<p>Compare this to the lower 64% of Republicans who say it is serious, including only 17% who view the problem as very serious (32 percentage points lower than Democrats). </p>
<p>This means that Cuomo’s problems are not just typical partisan problems. He is facing fallout not just from the opposing party, <a href="http://maristpoll.marist.edu/marist-poll-results-analysis-governor-andrew-cuomo/#sthash.QKcOjYVf.QWFhi1Z3.dpbs">but on both sides of the aisle</a>. And for this particular behavior he is <a href="https://www.cnn.com/2021/08/03/politics/andrew-cuomo-democrats-reaction-report/index.html">especially facing it on his own side</a>.</p>
<p>This special feature of his Democratic constituency accounts for the dilemma Cuomo is currently facing trying to hold onto office amid public and political outcry over his actions. </p>
<p>Cuomo has never been an angel in the eyes of New Yorkers. In April 2020, Politico ran the following headline for a story about Cuomo’s fame during the pandemic: “<a href="https://www.politico.com/news/magazine/2020/04/02/i-just-hope-this-thing-ends-soon-so-i-can-go-back-to-hating-andrew-cuomo-again-162215">I Just Hope This Thing Ends Soon So I Can Go Back to Hating Andrew Cuomo Again</a>.”</p>
<p>But, Democrats are not forgiving him for the sexual harassment scandal, especially after years of learning how pervasive and destructive that kind of behavior is. According to a <a href="http://maristpoll.marist.edu/marist-poll-results-analysis-governor-andrew-cuomo/#sthash.QKcOjYVf.dpbs">Marist Poll</a> conducted on the evening following Letitia James’ report release, a 52% majority of registered New York Democrats say Cuomo should resign from office. Only 41% of New York Democrats think he should serve out his term. Even non-white New York voters, a key Democratic constituency, favor Cuomo resigning by a six-percentage-point margin. While sometimes initial reactions can be tempered by time, if this drags out, which it appears likely to do, Cuomo is unlikely to recover his base.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="James, center, at a podium with two people flanking her. An American flag and New York State flag are behind them" src="https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415031/original/file-20210806-27-19kvv9u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New York Attorney General Letitia James, with investigators Anne L. Clark and Joon H. Kim, present the findings of their sexual harassment probe into Cuomo, Aug. 3, 2021, in New York City.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/new-york-attorney-general-letitia-james-and-independent-news-photo/1234430445?adppopup=true">David Dee Delgado/Getty Images</a></span>
</figcaption>
</figure>
<h2>Wishful thinking vs. reality</h2>
<p>How does Cuomo think he can soldier on in the face of losing his base of support? After all, it appears if he does not resign, the state assembly and Senate, along with the members of New York’s highest court, the Court of Appeals, <a href="https://www.politico.com/states/new-york/albany/story/2021/08/03/heres-how-impeachment-works-in-new-york-1389410">who preside with the Senate as a High Court of Impeachment</a>, will take matters into their own hands and impeach and convict him, thereby removing him from office.</p>
<p>With the Republican U.S. Senate, this was never a real threat for Trump – <a href="https://www.reuters.com/article/us-usa-election-trump-fraud-insight/why-republican-voters-say-theres-no-way-in-hell-trump-lost-idUSKBN2801D4">Republican constituents never lost their faith in Trump</a>. But if Cuomo is counting on the New York state legislature not to impeach and convict, he is not reading the poll numbers. </p>
<p>Having lost his public constituency, Cuomo has also lost support in the legislature. It is a law of politics that few sitting members would be willing to buck their own home constituents to defend a publicly unpopular executive. </p>
<p>Cuomo may, as many think Trump did, believe in his own mind that his behavior did not cross lines of unethical or illegal conduct, but the majority of New York voters and his former political allies now disagree with that.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a></em>.]</p><img src="https://counter.theconversation.com/content/165786/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Monika L. McDermott is affiliated with brilliant corners Research and Strategy as a part-time consultant. </span></em></p>New Gov. Andrew Cuomo is in big trouble after an official state report documented 11 cases of sexual harassment by him. He seems to think he can survive the scandal, but a longtime pollster disagrees.Monika L. McDermott, Professor of Political Science, Fordham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1547262021-02-18T19:13:36Z2021-02-18T19:13:36ZAfter Trump, what is the future of the Republican Party?<p>In the <a href="https://theconversation.com/trump-evades-conviction-again-as-republicans-opt-for-self-preservation-155283">second impeachment trial of Donald Trump</a>, <a href="https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/15/967878039/7-gop-senators-voted-to-convict-trump-only-1-faces-voters-next-year">seven out of 50 Republican senators</a> voted to convict the former president of <a href="https://www.npr.org/sections/trump-impeachment-effort-live-updates/2021/01/11/955631105/impeachment-resolution-cites-trumps-incitement-of-capitol-insurrection">inciting insurrection</a>. This has raised more questions than it has answered about where the Republican Party is going.</p>
<p>It still looks like Trump’s party, but for how long? Bill Cassidy, one of the seven Republican senators who voted to <a href="https://twitter.com/SenBillCassidy/status/1360697544293183488">convict</a> Trump, says Trump’s power over the party will “<a href="https://edition.cnn.com/2021/02/14/politics/cassidy-trump-impeachment-louisiana-gop-censure/index.html">wane</a>”. He will certainly hope so. The Republican Party of Louisiana has already <a href="https://apnews.com/article/donald-trump-censures-bill-cassidy-impeachments-trump-impeachment-76bdbd322bcc1e1a6af1919a66f66505">censured</a> Cassidy for his disloyalty to Trump. </p>
<p>On the other hand, Lindsey Graham, one of Trump’s <a href="https://www.businessinsider.com.au/graham-slams-impeachment-implies-mcconnell-making-the-problem-worse-2021-1?r=US&IR=T">top allies</a>, believes Trump and his supporters are <a href="https://www.rollingstone.com/politics/politics-news/lindsey-graham-trump-fox-news-interview-1128305/">so important</a> to the future of the party that Republicans should nominate his <a href="https://www.scotsman.com/news/politics/lara-trump-who-donald-trumps-daughter-law-and-could-she-take-richard-burrs-senate-seat-3135254">daughter-in-law</a> to replace retiring Senator Richard Burr (who voted to <a href="https://www.burr.senate.gov/press/releases/senator-burr-statement-on-vote-to-convict-former-president-trump-on-article-of-impeachment">convict</a>).</p>
<p>Some in the party see Trump as a <a href="https://www.businessinsider.com.au/republicans-privately-call-trump-a-liability-who-lost-election-2020-11?r=US&IR=T">major liability</a> who will only get <a href="https://theconversation.com/a-second-impeachment-is-just-the-start-of-trumps-legal-woes-153036">more toxic</a>. He is the <a href="https://www.washingtonpost.com/politics/2021/01/06/trump-set-be-first-president-since-1932-lose-reelection-house-senate/">first president since 1932</a> to oversee the loss of the White House and both houses of Congress in a single term. Joe Biden got the <a href="https://www.newsweek.com/joe-biden-donald-trump-popular-vote-1547483">highest vote share of any presidential challenger since 1932</a> in the highest-turnout election since <a href="https://fortune.com/2020/11/04/record-voter-turnout-2020-election-youth-vote-vote-by-mail/">1900</a>, earning <a href="https://edition.cnn.com/2020/12/04/politics/biden-popular-vote-margin-7-million/index.html">7 million more votes</a> than Trump. </p>
<p>However much Trump energised his supporters, he <a href="https://www.npr.org/2020/11/18/935730100/how-biden-won-ramping-up-the-base-and-expanding-margins-in-the-suburbs">energised more of his opponents</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384897/original/file-20210218-15-7ed761.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">However much Trump energised his supporters, he energised his opponents more.</span>
<span class="attribution"><span class="source">Kamil Krzaczynski/EPA/AAP</span></span>
</figcaption>
</figure>
<p>Despite all this, Republicans came within <a href="https://www.washingtonpost.com/politics/2021/02/09/republicans-came-within-90000-votes-controlling-all-washington/">90,000 votes</a> of winning both houses of Congress and the presidency in 2020. <a href="https://www.nbcnews.com/politics/meet-the-press/poll-trump-approval-remains-stable-republicans-unmoved-after-capitol-violence-n1254457">Many Republicans</a> believe Trump is an <a href="https://www.republicanleader.gov/about-last-night/">electoral asset</a> who helped them <a href="https://www.npr.org/2020/11/11/933435840/the-2020-election-was-a-good-one-for-republicans-not-named-trump">outperform expectations</a> and <a href="https://cookpolitical.com/analysis/house/house-overview/house-republicans-defy-polls-narrow-democrats-majority">narrow the Democrats’ margins</a> nationwide.</p>
<p>Unlike in 2012, there won’t be a Republican Party <a href="https://abcnews.go.com/Politics/OTUS/rnc-completes-autopsy-2012-loss-calls-inclusion-policy/story?id=18755809">autopsy</a> of the election defeat. Large numbers of Republicans <a href="https://www.vox.com/2021/1/11/22225531/joe-biden-trump-capitol-inauguration">doubt the outcome of the election</a>, and most of the party’s legislators are <a href="https://www.washingtonpost.com/graphics/2020/politics/congress-republicans-trump-election-claims/">unwilling to tell them otherwise</a>.</p>
<p>In any case, the party went in the <a href="https://www.politico.com/story/2016/03/donald-trump-gop-party-reform-220222">opposite direction</a> from the <a href="https://talkingpointsmemo.com/dc/6-big-takeaways-from-the-rnc-s-incredible-2012-autopsy">path of moderation</a> that the last autopsy recommended, and within four years they were back in control of the whole federal government.</p>
<p>So what might the future hold? </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trumpism-in-australia-has-been-overstated-our-problems-are-mostly-our-own-154949">'Trumpism' in Australia has been overstated – our problems are mostly our own</a>
</strong>
</em>
</p>
<hr>
<h2>The party is unlikely to split</h2>
<p>The Republican Party has a huge and energetic <a href="https://www.politico.com/news/2021/01/07/trumps-grip-on-gop-grassroots-456062">pro-Trump base</a> that controls the <a href="https://www.theguardian.com/us-news/2021/jan/30/republicans-radical-extreme-state-parties">grassroots</a> <a href="https://www.nytimes.com/2020/11/22/us/politics/trump-gop-control.html">machinery</a> of the party. It also represents a formidable primary voting bloc.</p>
<p>It has a much smaller but high-profile faction that wants to leave Trump behind, with significant representation among <a href="https://www.politico.com/news/2021/02/14/mcconnells-next-chapter-guiding-the-post-trump-gop-469014">legislators</a>, <a href="https://www.nytimes.com/2020/10/12/us/politics/never-trump-republicans.html">donors</a> and <a href="https://www.washingtonpost.com/opinions/now-begins-mcconnells-project-to-shrink-trumps-gop-influence/2021/02/14/ff7201de-6eed-11eb-93be-c10813e358a2_story.html">media commentators</a>. </p>
<p>For now, the two sides are stuck with each other.</p>
<p>In the past few weeks, figures on <a href="https://www.reuters.com/article/us-usa-trump-facebook-extremists-idUSKBN2A21SP">both</a> <a href="https://www.reuters.com/article/us-usa-trump-party-exclusive-idUSKBN2AB07P">sides</a> have threatened to form new parties if they can’t control the direction of the GOP. </p>
<p>These threats have <a href="https://www.theguardian.com/us-news/2021/jan/26/trump-campaign-distances-itself-from-new-patriot-party">quickly</a> <a href="https://www.reuters.com/article/us-usa-trump-third-party-insight-idUSKBN2AC053">evaporated</a>. The most a new conservative party could achieve is to damage the electoral prospects of Republicans (something Trump <a href="https://www.wsj.com/livecoverage/trump-impeachment-biden-inauguration/card/90pPMzFPqr5fMzg1Bkbs">might have contemplated</a> in the face of the impeachment threat).</p>
<p>The American electoral system, which is <a href="https://www.nytimes.com/2021/01/28/opinion/trump-republicans-third-party.html">winner-takes-all from top to bottom</a>, is <a href="https://fivethirtyeight.com/features/why-a-trump-led-third-party-is-unlikely/">notoriously unforgiving to would-be third parties</a>. Even people who feel alienated from their own parties are better off <a href="https://www.theatlantic.com/ideas/archive/2021/01/even-now-republicans-will-stick-together/617803/">staying and fighting for power</a> rather than forming a new party, which would never get anywhere near power.</p>
<p>It has been more than 160 years since divisions over slavery destroyed <a href="https://www.smithsonianmag.com/history/what-can-collapse-whig-party-tell-us-about-todays-politics-180958729/">major</a> <a href="https://www.smithsonianmag.com/history/immigrants-conspiracies-and-secret-society-launched-american-nativism-180961915/">parties</a> in the United States. The Republican and Democratic parties have survived since the Civil War despite <a href="https://www.smithsonianmag.com/history/1912-republican-convention-855607/">numerous</a> <a href="https://www.smithsonianmag.com/history/1964-republican-convention-revolution-from-the-right-915921/">fractures</a> and even <a href="https://blog.dlg.galileo.usg.edu/?p=3793">violent</a> <a href="https://www.smithsonianmag.com/history/1968-democratic-convention-931079/">conflicts</a>. </p>
<p>Congressional outcasts <a href="https://www.reuters.com/article/us-usa-senate-specter-snap-sb-idUSTRE53R5HD20090428">occasionally</a> <a href="https://www.reuters.com/article/us-usa-congress-house-van-drew-idUSKBN27D1DK">defect</a> to the other major party. But, more often, members at odds with their party <a href="https://www.vanityfair.com/news/2019/09/texas-republican-retirements-congress">eventually retire</a> and are replaced by new members more <a href="https://www.washingtonpost.com/opinions/2021/01/22/want-understand-gops-problem-look-its-newly-elected-extremists/">closely aligned</a> with its direction. This process is one of the factors leading to the current <a href="https://scholar.harvard.edu/files/rogowski/files/npat-paper-july2019.pdf">polarisation</a> of Congress. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/can-fox-news-survive-without-trump-in-the-white-house-155298">Can Fox News survive without Trump in the White House?</a>
</strong>
</em>
</p>
<hr>
<h2>Moderates are being policed more harshly than extremists</h2>
<p>Newly elected representative Marjorie Taylor Greene has become the focus of concerns about <a href="https://edition.cnn.com/2021/02/14/politics/republican-extremism-trump-impeachment/index.html">right-wing extremism</a> in the Republican Party. Greene has a <a href="https://edition.cnn.com/2021/02/04/politics/kfile-marjorie-taylor-greene-history-of-conspiracies/index.html">long history of amplifying dangerous conspiracy theories</a> on social media. </p>
<p>Senate minority leader Mitch McConnell <a href="https://slate.com/news-and-politics/2021/02/mitch-mcconnell-conspiracy-theories-marjorie-taylor-greene-cancer-republican-party.html">warned</a> that “loony lies and conspiracy theories” are “a cancer for the Republican Party and our country”. Greene <a href="https://twitter.com/mtgreenee/status/1356403160751943680">fired back</a>: “The real cancer for the Republican Party is weak Republicans who only know how to lose gracefully. This is why we are losing our country.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384891/original/file-20210217-17-1wkd1ho.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Newly elected representative Marjorie Taylor Greene has a long history of amplifying conspiracy theories.</span>
<span class="attribution"><span class="source">Shawn Thew/EPA/AAP</span></span>
</figcaption>
</figure>
<p>House Democrats moved to <a href="https://www.abc.net.au/news/2021-02-05/marjorie-taylor-greene-stripped-of-house-committee-roles/13125216">strip Greene of her membership of congressional committees</a> after Republican leader Kevin McCarthy <a href="https://www.abc.net.au/news/2021-02-04/majorie-taylor-greene-comments-condemned-by-republican-leader/13120138">refused to discipline her</a>.</p>
<p>Greene has been forced to back down from her support of <a href="https://www.vanityfair.com/news/2021/02/marjorie-taylor-greene-fake-mea-culpa">QAnon</a> and <a href="https://reason.com/2021/02/04/school-shootings-are-absolutely-real-and-9-11-absolutely-happened-says-marjorie-taylor-greene/">some conspiracy theories</a> that congressional Republicans consider beyond the pale.</p>
<p>But Greene’s <a href="https://www.poynter.org/fact-checking/2021/what-rep-marjorie-taylor-greene-has-said-about-election-fraud-qanon-and-other-conspiracy-theories/">central conspiratorial grievance</a> – that Trump was robbed of a rightful victory in the 2020 election – is an <a href="https://www.americansurveycenter.org/research/after-the-ballots-are-counted-conspiracies-political-violence-and-american-exceptionalism/">article of faith</a> and a politically energising force for much of the Republican base. Trump raised <a href="https://www.nytimes.com/2021/01/31/us/politics/trump-voter-fraud-fundraising.html">US$255 million dollars off it</a> in the weeks after the election.</p>
<p>Many Republicans in Congress <a href="https://www.reuters.com/article/us-usa-trump-lawmakers-special-report-idUSKBN2A41CP">acquiesced</a> to the “stolen election” fantasy, <a href="https://www.washingtonpost.com/politics/2020/12/16/how-republicans-are-spinning-their-unproven-election-fraud-claims-now-that-many-are-acknowledging-bidens-win/">some with the excuse</a> that they are faithfully representing their constituents. Even McConnell <a href="https://edition.cnn.com/2020/12/15/politics/mitch-mcconnell-congratulates-joe-biden/index.html">waited weeks</a> before acknowledging Biden’s victory.</p>
<p>Republicans who openly acknowledged Biden’s victory and dismissed claims of widespread election fraud faced <a href="https://www.npr.org/sections/biden-transition-updates/2020/12/01/940961602/someones-going-to-get-killed-ga-official-blasts-gop-silence-on-election-threats">anger</a> and <a href="https://edition.cnn.com/2021/01/23/politics/arizona-gop-censure-mccain-flake-ducey/index.html">censure</a> from <a href="https://www.nytimes.com/2021/02/16/us/politics/michigan-republicans-trump.html?action=click&module=Top%20Stories&pgtype=Homepage">state party organisations</a>, as well as from <a href="https://www.fox5atlanta.com/news/trump-says-he-will-campaign-against-kemp-raffensperger">Trump himself</a>. Republicans who backed impeachment saw <a href="https://www.voanews.com/usa/us-politics/republican-groups-censure-party-lawmakers-who-voted-impeach-convict-trump">immediate</a> <a href="https://www.vanityfair.com/news/2021/02/adam-kinzingers-family-calls-him-disappointment-to-god-for-standing-up-to-trump">retribution</a>, and will almost certainly have to defeat <a href="https://www.wsj.com/articles/primary-challenges-proliferate-against-republicans-who-voted-to-impeach-11612521001">well-supported primary challengers</a> in the future. </p>
<p>The historical willingness of American conservatives to police extremism has been <a href="https://static1.squarespace.com/static/540f1546e4b0ca60699c8f73/t/5c3e694321c67c3d28e992ba/1547594053027/Long+New+Right+Jan+2019.pdf">overstated</a>. It doesn’t matter that Trump and Greene are <a href="https://fivethirtyeight.com/features/what-do-americans-think-of-marjorie-taylor-greene-liz-cheney-josh-hawley/">poison</a> to the <a href="https://www.pewresearch.org/fact-tank/2021/01/20/how-we-know-the-drop-in-trumps-approval-rating-in-january-reflected-a-real-shift-in-public-opinion/">larger electorate</a>. Neither election losses nor the stigma of “extremism” are enough to kill right-wing political movements in America.</p>
<p>Accepting the Republican nomination in 1964, Barry Goldwater declared that “<a href="https://www.niskanencenter.org/on-the-saying-that-extremism-in-defense-of-liberty-is-no-vice/">extremism in defence of liberty is no vice</a>”. Goldwater went on to one of the <a href="https://www.presidency.ucsb.edu/statistics/elections/1964">largest electoral defeats in history</a>, but within 15 years his movement, led by Ronald Reagan, had <a href="https://newrepublic.com/article/158680/republican-party-resentment-reaganland-rick-perlstein-book-review">thoroughly conquered the Republican Party, taken the White House and reshaped American political culture</a>. Trump’s followers have similar ambitions.</p>
<h2>‘Trumpism’ without Trump could be tough to pull off</h2>
<p>No one knows yet what role Trump will play in future Republican politics. His recent <a href="https://edition.cnn.com/2021/02/16/politics/trump-mcconnell/index.html">attack on McConnell</a> suggests he at least wants to continue to punish Republicans he sees as disloyal. The <a href="https://www.npr.org/2021/01/30/961919674/could-trump-make-a-comeback-in-2024">possibility</a> Trump could run again will make politics awkward for Republicans eager to <a href="https://www.afr.com/world/north-america/will-trumpism-outlast-trump-20210103-p56re0">claim his mantle</a> for their own presidential ambitions.</p>
<p>The prospect of “<a href="https://fivethirtyeight.com/features/the-gop-might-still-be-trumps-party-but-that-doesnt-mean-theres-room-for-him/">Trumpism without Trump</a>” has <a href="https://www.nytimes.com/2017/11/14/opinion/trump-republicans-douthat.html">enticed conservatives</a> and <a href="https://www.theguardian.com/commentisfree/2020/jun/09/think-donald-trump-is-bad-president-tom-cotton-would-be-even-more-terrifying">worried liberals</a> ever since the Trump phenomenon began. Republicans have learned to rail against “<a href="https://twitter.com/HawleyMO/status/1139589816595755008">globalism</a>” and the “<a href="https://www.rollcall.com/2019/09/03/ted-cruz-takes-deep-state-gospel-to-establishment-washington/">deep state</a>”. They are unlikely to return to <a href="https://www.nbcnews.com/politics/immigration/senate-republicans-throw-cold-water-biden-s-immigration-proposal-n1255232">comprehensive immigration reform</a> any time soon.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1139589816595755008"}"></div></p>
<p>Trump has breathed new life into old conservative staples such as <a href="https://www.themarshallproject.org/2020/10/07/what-trump-really-means-when-he-tweets-law-order">law and order</a> and the <a href="https://www.dw.com/en/trump-popular-among-vietnamese-americans/a-55702032">perils</a> of <a href="https://www.tampabay.com/news/florida-politics/2020/11/20/invisible-campaign-and-the-specter-of-socialism-why-cuban-americans-fell-hard-for-trump/">socialism</a>. But Trump’s relationship with his supporters goes far beyond his political positions, or even the <a href="https://www.politico.com/news/magazine/2020/12/12/trump-grievance-addiction-444570">grievances</a> and <a href="https://bearistotle.substack.com/p/the-apophenic-thrall">emotions</a> he harnessed.</p>
<p>Trump’s appeal was based on the perception that he had unique gifts that <a href="https://www.cnbc.com/video/2016/07/21/trump-i-alone-can-fix-the-system.html">no politician ever had</a>. He cultivated a media image that made him <a href="https://www.vox.com/the-goods/22243022/donald-trump-lawsuits-future-brand">synonymous</a>, <a href="https://www.nytimes.com/interactive/2020/09/27/us/donald-trump-taxes.html">however incorrectly</a>, with business success. His tireless verbal output, whether through Twitter or at endless rallies, created an <a href="https://www.forbes.com/sites/andrewsolender/2020/10/27/all-the-ways-trumpworld-is-crafting-an-alternate-reality-in-the-elections-final-days/?sh=5c3a49c41afb">alternative reality</a> for his followers. Many saw him as <a href="https://religionnews.com/2019/11/25/how-many-americans-believe-trump-is-anointed-by-god/">chosen by God</a>. </p>
<p>That kind of <a href="http://relpubs.as.virginia.edu/trump-the-charismatic-by-vincent-lloyd/">charismatic magic</a> will be extremely difficult for any career politician to recapture. Republicans may discover that Trumpism is not a political movement but a business model, a model only ever designed for one benefactor.</p><img src="https://counter.theconversation.com/content/154726/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Smith does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With bitter divisions and sniping in the wake of an election defeat and Donald Trump’s second impeachment, the Republicans are trying to find a way forward – with or without him.David Smith, Associate Professor in American Politics and Foreign Policy, US Studies Centre, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1550942021-02-12T21:09:44Z2021-02-12T21:09:44ZWhy the British abandoned impeachment – and what the US Congress might do next<figure><img src="https://images.theconversation.com/files/383888/original/file-20210211-21-3fcsz6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The impeachment trial of Warren Hastings in 1788.</span> <span class="attribution"><a class="source" href="https://www.loc.gov/resource/pga.02382/">Library of Congress</a></span></figcaption></figure><p>Impeachment was <a href="https://www.theguardian.com/law/2019/oct/03/impeachment-roots-medieval-14th-century-england">developed in medieval England</a> as a way to discipline the king’s ministers and other high officials. The framers of the U.S. Constitution took that idea and applied it to presidents, judges and other federal leaders.</p>
<p>That tool was in use, and in question, during the second impeachment trial of Donald Trump. Republicans raised questions about both the <a href="https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/09/965970361/senate-votes-its-constitutional-to-try-former-president-donald-trump">constitutionality</a> and the <a href="https://www.magnoliastatelive.com/2021/02/11/sen-wicker-says-trumps-second-impeachment-trial-is-pointless/">overall purpose</a> of impeachment proceedings against a person who no longer holds office.</p>
<p>Democrats responded that the framers <a href="https://theweek.com/speedreads/965904/democrats-theres-no-january-exception-impeachment">expected impeachment to be available</a> as a way to deliver consequences to a former official, and that refusing to convict Trump could <a href="https://www.cnbc.com/2021/02/11/trump-impeachment-trial-live-updates-day-3.html">open the door to future presidential abuses</a> of power.</p>
<p>An impeachment case that was active in Britain while the framers were writing the Constitution in Philadelphia helped inform the new American government structure. But the outcome of that case – and that of another impeachment trial a decade later – signaled the end of impeachment’s usefulness in Britain, though the British system of government offered another way to hold officials accountable.</p>
<h2>Impeachment in Britain</h2>
<p>During the 17th century, the English <a href="https://www.britannica.com/topic/impeachment">Parliament used impeachment repeatedly against the royal favorites of King Charles I</a>. One, Thomas Wentworth, Earl of Strafford, went to the gallows in 1641 for subverting the laws and attempting to raise an Irish army to subdue the king’s opponents in England. Although kings couldn’t be impeached, Parliament eventually <a href="https://www.history.com/this-day-in-history/king-charles-i-executed-for-treason">tried King Charles I for treason too</a>, sentencing him to death by public beheading on Jan. 30, 1649.</p>
<p>A century later, impeachment no longer carried a risk of execution, but in 1786 the House of Commons launched what would become the most famous – and longest – <a href="https://indianexpress.com/article/explained/explained-why-the-failed-attempt-to-impeach-warren-hastings-is-relevant-to-donald-trumps-trial-6228587/">impeachment trial in British history</a>. </p>
<p>The lower house of Parliament, the House of Commons, impeached Warren Hastings, who had retired as governor-general of British India and was back in England, for corruption and mismanagement. That action provides a direct answer to one current legal question: The charges were based on what Hastings had done in India, making clear that a <a href="https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089">former official could be impeached and tried</a>, even though he was no longer in office. </p>
<p>Future U.S. president John Adams, who was in London at the time, predicted in a letter to fellow founder John Jay that <a href="https://founders.archives.gov/documents/Adams/99-02-02-0038">although Hastings deserved to be convicted, the proceedings would likely end with his acquittal</a>. Nevertheless, Adams and Jay were among those who supported the new U.S. Constitution, whose drafters in 1787 included impeachment, even though that method of accountability was close to disappearing from Britain.</p>
<h2>Nearing the end of its usefulness</h2>
<p>The trial of Hastings, in Parliament’s upper house, the House of Lords, didn’t actually begin until 1788, and took seven years to conclude. The prosecution included Edmund Burke, one of the most gifted orators of the age. Eventually, though, the House of Lords proved Adams right, acquitting Hastings in 1795.</p>
<p>This stunning loss could have been the death knell for impeachment in Great Britain, but Hastings was not the last British political figure to be impeached. That dubious honor goes to <a href="https://www.edinburghnews.scotsman.com/news/people/who-was-henry-dundas-why-edinburgh-statue-scottish-advocate-being-changed-reflect-his-links-slavery-2880569">Henry Dundas, Lord Melville</a>, Scottish first lord of the admiralty, who was charged in 1806 with misappropriating public money. Dundas was widely assumed to be guilty, but, as with Hastings, the House of Lords voted to acquit. </p>
<p>These examples showed that impeachment, even when the accused government official had done the things that he was accused of doing, was a blunt, cumbersome weapon. With both Hastings and Dundas, the House of Commons was willing to act, but the House of Lords – which was (and is) not an elected body and therefore less responsive to popular opinion – refused to go along. As a tool for checking the actions of ministers and other political appointees, impeachment no longer worked, and it fell out of use.</p>
<h2>A new method of accountability</h2>
<p>The decline of impeachment in Britain coincided with the rise of another, more effective process by which high officials there could be held accountable. </p>
<p>British prime ministers answer to Parliament, doing so literally during the now-weekly <a href="https://www.parliament.uk/about/how/business/questions/">question time in the House of Commons</a>. Leaders who for whatever reason <a href="https://www.bbc.com/news/uk-politics-46890481">lose the support of a simple majority in the lower house</a>, including through a vote of no confidence, can be forced to resign. The last time a British prime minister lost a vote of no confidence was in 1979, when the <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/march/28/newsid_2531000/2531007.stm">minority Labour government of James Callaghan was defeated</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A packed House of Commons" src="https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=340&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=340&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=340&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=428&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=428&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383892/original/file-20210211-14-1fjkgkc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=428&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.K. prime minister’s ‘question time’ is one key method by which the government’s leader can be held to account by other lawmakers.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Prime_Minister%27s_Questions_(Full_Chamber).jpg">U.K. Parliament via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>If a prime minister receives a vote of no confidence, there is an alternative to resignation: call an election for a new Parliament, which is what Callaghan did, and let the people decide whether the current government gets to stay or has to go. If the prime minister’s party loses, he or she is generally out, and the leader of the party with the new majority takes over. In 1979, the defeat of Callaghan and the Labour Party <a href="https://www.theguardian.com/politics/2009/mar/22/james-callaghan-labour-1979-thatcher">paved the way for the Conservative government of Margaret Thatcher</a>, Britain’s first female prime minister.</p>
<p>This provides an immediate course of action for those who oppose a British government for any reason, including allegations of official wrongdoing, and delivers a rapid decision.</p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p>
<p>In the United States, by contrast, a president can be accused of corruption or even sedition but face no real consequences, so long as one more than a third of the Senate declines to convict. </p>
<p>Now that Trump has been acquitted, then the Constitution’s <a href="https://theconversation.com/founders-removal-from-office-is-not-the-only-purpose-of-impeachment-124254">bulwark against presidential malfeasance</a> could become yet another mechanism of <a href="https://www.motherjones.com/politics/2020/01/gop-senators-representing-a-minority-of-americans-are-preventing-a-fair-impeachment-trial/">minority government</a>.</p>
<h2>Another path</h2>
<p>If impeachment is rendered useless in the U.S., as it was in Britain two centuries ago, the Constitution does offer another remedy: <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rep. Jamie Raskin gestures during the Trump impeachment trial" src="https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383891/original/file-20210211-16-1ogagbd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">If Rep. Jamie Raskin and the other House managers of the impeachment case don’t prevail, that may not be the end of possible accountability for former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpImpeachment/79da9eb8dfd94e4f8343e6f087bc9a31/photo">Senate Television via AP</a></span>
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<p>Originally intended to prevent former Confederates from returning to power after the Civil War, Section 3 bars people who have “engaged in insurrection or rebellion” against the U.S. from serving in state or federal governments, <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">including in Congress or as president or vice president</a>.</p>
<p>The language in the amendment could justify barring Trump from future office – and the resolution to do so may require only a majority vote in both houses of Congress, though enforcement would likely also need a <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">ruling from a judge</a>.</p><img src="https://counter.theconversation.com/content/155094/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eliga Gould does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the early 19th century, the British – who had invented impeachment centuries before – decided it no longer served its purpose. Instead, they found a more effective way to handle a bad leader.Eliga Gould, Professor of History, University of New HampshireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1549972021-02-09T20:15:11Z2021-02-09T20:15:11ZDonald Trump impeachment trial: how the process will unfold in the US Senate<p>Despite US president Joseph Biden’s concern over making the most of any honeymoon period to pass his legislative agenda, Congress is now consumed by the <a href="https://www.theguardian.com/us-news/2021/feb/09/donald-trump-impeachment-trial-begins-us-senate">second impeachment trial</a> of Donald Trump. Impeachment itself is a vague process with few concrete rules. This makes the importance of understanding these rules and the procedure for this unprecedented Senate impeachment trial of a former president extremely significant and of great historic consequence. </p>
<p>While each impeachment is uniquely confined to a particular context or controversy, the process itself has been consistently defined by the same vague references contained in the constitution. The <a href="https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm#:%7E:text=The%20Senate%20sits%20as%20a,or%20convict%20the%20impeached%20official.&text=The%20Constitution%20requires%20a%20two,conviction%20is%20removal%20from%20office.">constitution</a> confines impeachment to cases of what it refers to as “treason, bribery, or other high crimes and misdemeanours”. </p>
<p>While this phrase had precedent in <a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">British common law</a>, the issue of defining an impeachable offence has often revolved around investigating a suspected abuse of power. We saw this, for example, in Trump’s <a href="https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html">first impeachment trial</a>. In that case, Congress examined whether Trump had encouraged Ukraine to interfere in the US election campaign by investigating Biden – his anticipated opponent. The Senate, with a small Republican majority at the time, <a href="https://www.nytimes.com/interactive/2020/02/05/us/politics/impeachment-vote-results.html">voted largely along party lines</a> to acquit the president.</p>
<p>Under the Constitution, the House of Representatives “has the sole power” to consider impeachment. If a simple majority from the House votes in favour of even one article of impeachment, the president is impeached. They must then be tried by the Senate.</p>
<p>Too often, the term impeachment is only understood as the removal of a politician from office. But while three US presidents have been impeached by the House of Representatives (<a href="https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm">Andrew Johnson in 1868</a>, <a href="https://www.washingtonpost.com/politics/clinton-impeachment/senate-acquits-president-clinton/">Bill Clinton in 1998</a> and Donald Trump in both 2019 and 2021), none has been convicted by the Senate. </p>
<p>Richard Nixon, the 37th president, resigned from office in 1974 <a href="https://www.washingtonpost.com/news/answer-sheet/wp/2017/05/29/richard-nixon-was-not-impeached-despite-what-hillary-clinton-and-others-say/">to avoid an impeachment trial</a> that seemed certain to remove him from office. But the full consequences of a successful impeachment process itself have never occurred and debate over the role of partisanship continues with increasing concern over the potential for impeachment to become an <a href="https://www.politico.com/news/2019/10/06/murphy-trumprepublicans-blind-partisan-loyalty-033079">exercise in partisan loyalty</a>.</p>
<p>The House passed a single article of impeachment against Trump, for “<a href="https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html">incitement of insurrection</a>”, the charge now being considered by the Senate. There is no standard process for an impeachment trial. The guidelines for the trial are agreed by senators to reflect the particular circumstances. </p>
<p>In this case, Trump has <a href="https://www.latimes.com/politics/story/2021-02-04/house-democrats-ask-trump-to-testify-senate-trial">declined to speak in his own defence</a> and, while there is an option to include witnesses, it is not compulsory. This case is particularly suited to first-person testimony from members of Congress, as the lawmakers themselves were witnesses to the alleged crime as it unfolded at the Capitol. There is also video footage that could provide evidence in the trial.</p>
<h2>Impartial justice</h2>
<p>Senators are sworn in to act in the capacity of jurors. Duty to country and constitution is intended to come first over party loyalty, with <a href="https://eu.usatoday.com/story/news/politics/2020/01/16/impeachment-senators-pledge-impartial-justice-trump-trial/4488539002/">senators swearing</a> to “do impartial justice according to the Constitution and laws”. The House impeachment managers act as prosecutors, while the president has a team of lawyers for his defence. </p>
<p>Nine Democrats <a href="https://www.nytimes.com/2021/01/12/us/pelosi-impeachment-managers.html">have been chosen</a> by the House speaker, Nanci Pelosi, to act as impeachment managers, led by Representative <a href="https://edition.cnn.com/2021/01/25/politics/jamie-raskin-impeachment-manager/index.html">Jamie Raskin</a> of Maryland. </p>
<p>As we saw in Trump’s first impeachment, the chief justice of the Supreme Court is meant to oversee a president’s trial in the Senate, as stipulated by the constitution. But, as Trump is no longer in office, Chief Justice John Roberts <a href="https://www.npr.org/2021/01/25/960389715/sen-patrick-leahy-to-preside-over-trumps-senate-impeachment-trial">has passed this responsibility</a> over to president <em><a href="https://www.senate.gov/artandhistory/history/common/briefing/President_Pro_Tempore.htm">pro-tempore</a></em> of the Senate, Patrick Leahy. The senior senator from Vermont was chosen by his fellow senators to act as the presiding officer, in respect for his longstanding public service in office. </p>
<p>The Senate impeachment trial culminates in a vote on whether to convict. A successful impeachment requires a two-thirds majority of senators – 67 votes – to convict. This final vote will be preceded by closing arguments limited to four hours and followed by deliberations. The unlikelihood of the almost evenly divided Senate (50 Republicans, 48 Democrats and two Independents), convicting Trump has obscured the debate over what convicting a politician who has already left office would look like. </p>
<p>Partisanship has already been apparent in 45 Republican senators <a href="https://www.nytimes.com/live/2021/01/26/us/biden-trump-impeachment">voting against</a> holding an impeachment trial in the first place. The argument over the whether the trial is constitutional has become part of the process – the first day of debate in the trial has been devoted <a href="https://www.nytimes.com/2021/02/08/us/politics/trump-impeachment-constitutional.html">to the matter</a>. The impeachment trial proceeds if there is a majority of 51 votes in favour. According to the constitution, the vice president, Kamala Harris, can only vote in the Senate in cases of a 50-50 impasse.</p>
<p>With a majority in favour, the trial should begin in earnest with each side presenting their arguments. It has been agreed that this process should not exceed four days. Following this, there will be four hours for senators to ask questions, succeeded by two hours debating motions subpoenaing documents and witnesses, as called for by House managers. The trial will be extended to include discovery and witnesses, if the Senate votes in favour of these motions.</p>
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Read more:
<a href="https://theconversation.com/impeaching-a-former-president-4-essential-reads-153821">Impeaching a former president – 4 essential reads</a>
</strong>
</em>
</p>
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<p>David Schoen, Trump’s lawyer, <a href="https://www.theguardian.com/us-news/2021/feb/07/trump-impeachment-trial-lawyer-sabbath-david-schoen">initially asked</a> for the trial not to continue through the Jewish Sabbath. It was decided that the trial would pause through Friday evening and Saturday, continuing on Sunday February 14. However, Schoen has <a href="https://edition.cnn.com/2021/02/08/politics/sabbath-request-withdrawn-david-schoen/index.html">now withdrawn this request</a> giving the trial potential to go through the weekend. Despite this being Valentine’s Day weekend, the current hyper-partisanship in Congress is unlikely to inspire many sentiments of affection or congeniality.</p><img src="https://counter.theconversation.com/content/154997/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Ellyn Smith does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The rules of impeachment in the US Constitution are vague, but here’s how the trial of Donald Trump in the US Senate will work.Laura Ellyn Smith, Adjunct Assistant Professor, Richmond The American International University in London, & Doctoral Candidate, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1546152021-02-05T18:10:31Z2021-02-05T18:10:31ZImpeachment trial: Research spanning decades shows language can incite violence<figure><img src="https://images.theconversation.com/files/382346/original/file-20210203-17-1xdygu.jpg?ixlib=rb-1.1.0&rect=8%2C25%2C5584%2C3709&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Capitol, which was besieged by insurrectionists on Jan. 6, and where the Trump impeachment trial takes place in the Senate.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jan-25-2021-photo-taken-on-jan-25-2021-shows-the-u-s-news-photo/1230793888?adppopup=true">Xinhua/Liu Jie via Getty Images</a></span></figcaption></figure><p>Senators, acting in the impeachment trial of former President Donald Trump that begins on Feb. 9, will soon have to decide whether to convict the former president for inciting a deadly, violent insurrection at the Capitol building on Jan. 6. </p>
<p>A majority of House members, <a href="https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump">including 10 Republicans</a>, took the first step in the two-step impeachment process in January. They <a href="https://www.congress.gov/bill/117th-congress/house-resolution/24/text">voted to impeach Trump</a>, for “incitement of insurrection.” Their resolution states that he “willfully made statements that, in context, encourage – and foreseeably resulted in – lawless action at the Capitol, such as: ‘if you don’t <a href="https://www.govinfo.gov/content/pkg/CREC-2021-01-13/html/CREC-2021-01-13-pt1-PgH165.htm">fight like hell you’re not going to have a country anymore</a>.’” </p>
<p>Impeachment proceedings that consider incitement to insurrection are rare in American history. Yet dozens of legislators – including some <a href="https://www.adn.com/politics/2021/01/08/alaska-sen-lisa-murkowski-calls-on-president-trump-to-resign-questions-her-future-as-a-republican/">Republicans</a> – say that Trump’s actions leading up to the Jan. 6 attack on the Capitol contributed to an attempted insurrection against American democracy itself. </p>
<p>Such claims against Trump are complicated. Rather than wage direct war against sitting U.S. representatives, Trump is accused of using language to motivate others to do so. <a href="https://www.wsj.com/articles/no-trump-isnt-guilty-of-incitement-11610303966">Some have countered</a> that the connection between President Trump’s words and the violence of Jan. 6 is too tenuous, too abstract, too indirect to be considered viable. </p>
<p>However, <a href="https://tinyurl.com/reasonedactiontheory">decades of research</a> on social influence, persuasion and psychology show that the messages that people encounter heavily influence their decisions to engage in certain behaviors.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/lBH7ql34Ex0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Donald Trump’s speech on Jan. 6 at the “Save America March.”</span></figcaption>
</figure>
<h2>How it works</h2>
<p>The research shows that the messages people consume affect their behaviors in three ways. </p>
<p>First, <a href="https://psycnet.apa.org/record/2005-04648-005">when</a> <a href="https://doi.org/10.1080/14792779943000116">a person</a> encounters a message that advocates a behavior, that person is likely to believe that the behavior will have positive results. This is particularly true if the speaker of that message is liked or trusted by the target of the message.</p>
<p>Second, <a href="https://journals.sagepub.com/doi/abs/10.1177/0093650205275385">when these messages communicate</a> <a href="https://academic.oup.com/ct/article-abstract/13/2/184/4110437">positive beliefs or attitudes about a behavior</a> – as when our friends told us that smoking was “cool” when we were teenagers – message targets come to believe that those they care about would approve of their engaging in the behavior or would engage in the behavior themselves.</p>
<p><a href="https://doi.org/10.1177/0002716211423500">Finally, when those messages</a> <a href="https://doi.org/10.1177/0146167292181001">contain language that highlights</a> the target’s ability to perform a behavior, as when a president tells raucous supporters that they have the power to overturn an election, they develop the belief that they can actually carry out that behavior. </p>
<p>Consider something we have all encountered in a more lighthearted context – messages designed to motivate exercise. These messages often tell us one (or more) of three things. They tell us that exercise will lead to positive outcomes – “You will get physically fit!” They tell us that others exercise or would approve of our taking part in exercise – “Work out with a friend!” And they tell us that it is within our power to begin an exercise program – “Anybody can do it!” </p>
<p>In this context, these messages are likely to increase the message target’s likelihood of exercising.</p>
<p>Unfortunately, as we saw on Jan. 6, these principles of persuasion apply to less benign behaviors as well.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Members of Congress were forced to evacuate the House Chambers to evade protesters." src="https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=497&fit=crop&dpr=1 754w, https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=497&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/378434/original/file-20210112-17-edz2dz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=497&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of Congress evacuating the House as it was being attacked by protesters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-congress-evacuate-the-house-chamber-as-news-photo/1294933192">Drew Angerer/Getty Images via Getty Images</a></span>
</figcaption>
</figure>
<h2>How Trump did it</h2>
<p>Now let us return to what happened in Washington on Jan. 6.</p>
<p>Even in the weeks before the election, Trump’s rhetoric was belligerent. His campaign solicited supporters to “enlist” in the “<a href="https://web.archive.org/web/20210111123637/https://www.armyfortrump.com/">Army for Trump</a>” to help reelect him. Following the election and in the lead-up to the attack on the Capitol, <a href="https://www.washingtonpost.com/politics/2020/11/05/president-trumps-false-claims-vote-fraud-chronology/">President Trump made repeated false claims of election fraud</a>, arguing that something needed to be done to remedy the alleged fraud. His language often took an aggressive tone, suggesting that his supporters must “<a href="https://www.independent.co.uk/news/world/americas/us-election-2020/trump-election-voter-fraud-arizona-detroit-b1622400.html">fight</a>” to preserve the integrity of the election. </p>
<p>By inundating his supporters with these lies, Trump made two key beliefs acceptable to his followers. First, that aggression against those accused of trying to undermine his “<a href="https://www.npr.org/2016/12/11/505182622/fact-check-trump-claims-a-massive-landslide-victory-but-history-differs">victory</a>” is an acceptable and useful means of political action. Second, that aggressive, possibly violent attitudes against Trump’s political adversaries are common among all his supporters. </p>
<h2>Words have consequences</h2>
<p>In the weeks following the election, allies of President Trump, <a href="https://news.yahoo.com/giuliani-calls-trial-combat-d-180408746.html">including Rudy Giuliani</a>, <a href="https://weartv.com/news/local/gaetz-defends-president-trump-suggests-antifa-could-be-behind-us-capitol-attack">Republican U.S. Rep. Matt Gaetz</a>, GOP Sens. <a href="https://www.theguardian.com/us-news/2021/jan/10/capitol-attack-republican-senators-josh-hawley-ted-cruz-face-resign">Ted Cruz and Josh Hawley</a> and others, only reinforced these beliefs among Trump supporters by perpetuating his lies. </p>
<p>With these beliefs and attitudes in place, Trump’s <a href="https://factba.se/transcript/donald-trump-speech-campaign-rally-the-ellipse-january-6-2021">Jan. 6 speech outside the White House</a> served as a key accelerant to the attack by sparking the raucous crowd to action. </p>
<p>In his pre-attack speech, Trump said that he and his followers should <a href="https://www.nytimes.com/2021/01/10/us/trump-speech-riot.html">“fight like hell” against “bad people</a>.” He said that they would “walk down Pennsylvania Avenue” to give Republican legislators the boldness they need to “take back the country.” He said that “this is a time for strength” and that the crowd was beholden to “<a href="https://www.nytimes.com/2021/01/10/us/trump-speech-riot.html">very different rules</a>” than would normally be called for. </p>
<p>Less than two hours after these words were spoken, violent insurrectionists and domestic terrorists breached the Capitol. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>In the case of Donald Trump, the relationship between words and actions never seems clear. But make no mistake, there is a scientifically valid case for incitement.</p>
<p>Decades of research have demonstrated that language affects our behaviors – words have consequences. And when those words champion aggression, make violence acceptable and embolden audiences to action, incidents like the insurrection at the Capitol are the result. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/at-impeachment-hearing-lawmakers-will-deliberate-over-a-deadly-weapon-used-in-the-attack-on-capitol-hill-president-trumps-words-153074">an article</a> originally published on Jan. 12, 2021.</em></p><img src="https://counter.theconversation.com/content/154615/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kurt Braddock receives funding from The U.S. Department of Homeland Security to perform research on disinformation and right-wing violent extremism. </span></em></p>Language affects behavior. When words champion aggression, make violence acceptable and embolden audiences to action, incidents like the insurrection at the Capitol are the result.Kurt Braddock, Assistant Professor of Public Communication, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1538212021-02-05T13:06:53Z2021-02-05T13:06:53ZImpeaching a former president – 4 essential reads<figure><img src="https://images.theconversation.com/files/382345/original/file-20210203-19-44pm4n.jpg?ixlib=rb-1.1.0&rect=15%2C0%2C5144%2C3442&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House of Representatives members and staff walk the article of impeachment against Donald Trump across the Capitol.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PicturesoftheWeekPhotoGallery-NorthAmerica/f3230c6ed74d43e182e3423a227cd308/photo">AP Photo/Susan Walsh</a></span></figcaption></figure><p>As the U.S. Senate takes up the second impeachment trial of former President Donald Trump, there are a lot of questions about the process and legitimacy of trying someone who is no longer in office, including what the point is and how impeachment works. The House has passed an article of impeachment, charging him with “incitement of insurrection” in connection with the Jan. 6 Capitol riot, and now the process turns to the Senate.</p>
<p>The Conversation has published several articles from scholars explaining aspects of the situation, as well as describing more generally what the purpose of impeachment was for the founders when they wrote the Constitution. This is a selection of excerpts from those articles.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump, 'Stop The Steal' Rally" src="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump greets the crowd at the ‘Stop the Steal’ rally Jan. 6 in Washington, D.C., shortly before the Capitol riot.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-greets-the-crowd-at-the-stop-the-news-photo/1294918250?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Does it matter that Trump is out of office?</h2>
<p>The previous three impeachment trials of presidents – of Andrew Johnson in 1868, Bill Clinton in 1998 and Trump himself, the first time, in early 2020 – were conducted while the accused were still in office. Some Republicans have questioned whether it’s even constitutional to conduct an impeachment trial of a former president.</p>
<p>But <a href="https://phil.washington.edu/people/michael-blake">Michael Blake</a>, a political philosopher at the University of Washington, explains that trying him is useful morally and politically, setting a boundary around the powers of the presidency, even if Trump can no longer be expelled from office: </p>
<blockquote>
<p>“<a href="https://theconversation.com/is-impeaching-president-trump-pointless-revenge-not-if-it-sends-a-message-to-future-presidents-153063">The impeachment of President Trump is an indication</a> that there is a need to mark out, through a definitive statement, what no president ought to do. It will also set the moral limits of the presidency – and, thereby, send a message to future presidents.”</p>
</blockquote>
<h2>2. What happens if Trump is convicted?</h2>
<p>Though Trump can no longer be removed from office, he may still face consequences. <a href="https://law.wayne.edu/profile/ew9862">Kirsten Carlson</a>, a law professor at Wayne State University, explains that there is an additional step:</p>
<blockquote>
<p>“<a href="https://theconversation.com/federal-leaders-have-two-options-if-they-want-to-rein-in-trump-152880">The Senate also has the power to disqualify a public official</a> from holding public office in the future. If the person is convicted …, only then can senators vote on whether to permanently disqualify that person from ever again holding federal office. … A simple majority vote is all that’s required then.”</p>
</blockquote>
<h2>3. What if he is not convicted?</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Snap shot of the text of the articles of impeachment" src="https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/380263/original/file-20210122-17-9an1oi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Article 1 of the impeachment charges against Donald Trump invokes the 14th Amendment.</span>
<span class="attribution"><span class="source">U.S. House of Representatives</span></span>
</figcaption>
</figure>
<p>It is possible that two-thirds of the senators may not vote to convict Trump. But there is another way Congress might seek to bar Trump from holding office in the future.</p>
<p><a href="https://mckinneylaw.iu.edu/faculty-staff/profile.html?id=40">Gerard Magliocca</a>, a law professor at IUPUI, describes that approach, which would use Section 3 of the 14th Amendment. He writes that the amendment, created after the Civil War, <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">bars people</a> “from serving in a variety of government offices if they ‘shall have engaged in insurrection or rebellion’ against the United States Constitution.” </p>
<p>However, it’s not enough for a majority of Congress to vote to declare Trump is ineligible to serve in office again, Magliocci explains: “only the courts, interpreting Section 3 for themselves, can bar someone from running for president.”</p>
<h2>4. What is the real purpose of impeachment?</h2>
<p>Even if immediate consequences are uncertain, the founders still understood that impeachment sent a powerful message, writes <a href="http://www.clarkcunningham.org/">Clark Cunningham</a>, a legal scholar at Georgia State University.</p>
<p>Based on his research into the people who wrote the Constitution and the statements they made at the Constitutional Convention in 1787, Cunningham explains that “<a href="https://theconversation.com/limiting-senate-inquiry-ignores-founders-intent-for-impeachment-130922">the founders viewed impeachment as a regular practice</a> with three purposes:</p>
<ul>
<li>To provide a fair and reliable method to resolve suspicions about misconduct;</li>
<li>To remind both the country and the president that he is not above the law;</li>
<li>To deter abuses of power.”</li>
</ul>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/153821/count.gif" alt="The Conversation" width="1" height="1" />
There are a lot of questions about the point of putting on trial someone who is no longer in office.Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1539192021-02-01T18:05:45Z2021-02-01T18:05:45ZFact check US: Could Donald Trump be convicted in his second impeachment trial?<p>On January 13, 2021, President Donald Trump was impeached for the second time, charged with <a href="https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html">“incitement of insurrection:</a> in the <a href="https://theconversation.com/how-donald-trumps-populist-narrative-led-directly-to-the-assault-on-the-us-capitol-153277">January 6 attack on the US Capitol</a>. Less than two weeks later, on January 25, the House of Representatives sent the articles of impeachment to the US Senate, setting up a second trial. </p>
<h2>Grave charges, but serious doubts of bipartisan support</h2>
<p>Given the gravity and clarity of the charges against Trump, some Democrats have expressed hope that the Senate could vote to convict. Rhode Island representative <a href="https://edition.cnn.com/2021/01/11/politics/house-democrats-impeachment-plans/index.html">David Cicilline</a> stated, "I expect that we’ll have Republican support”. At the very least, the President’s actions represent a serious attack on the Senate, the second wing of Congress. </p>
<p>In his description of checks and balances, (<a href="https://www.gradesaver.com/the-federalist-papers/study-guide/summary-essay-50"><em>Summary Essay 50 of the Federalist Papers</em></a>), the fourth President of the United States, James Madison, stated that the ambition of elected representatives is counteracted by the extent of their own power. Senators’ interests are tied up with the institutions they represent. The physical and symbolic insult and injury to Congress were so egregious as to require a response.</p>
<p>But impeachment requires a two-thirds majority and there is currently no way of knowing how many Republican senators might vote in favor. At the time of certification, prior to the assault on the Capitol, 18 refused to recognize Biden’s victory. That number fell to 8 after the attack but, in the House, <a href="https://www.washingtonpost.com/graphics/2021/politics/congress-electoral-college-count-tracker/">two-thirds of Republican representatives</a> (139), including minority leaders Kevin McCarthy (California) and Steve Scalise (Louisiana), objected to the election results. On January 13, <a href="https://www.pbs.org/newshour/politics/10-house-republicans-voted-to-impeach-trump-heres-what-they-said">only 10 House Republicans voted for impeachment</a>, meaning that 84% voted against the motion.</p>
<p>Could 17 Republicans be persuaded to vote for impeachment in the Senate? As mentioned, the Republicans currently make up exactly half of the Senate, with Vice President Kamala Harris being the tie-breaker vote, giving control to the Democrats. Only one Republican, Mitt Romney (Utah), who ran against Barack Obama in 2012, voted to convict Trump in the <a href="https://eu.usatoday.com/story/news/politics/2020/02/05/senate-impeachment-trial-mitt-romney-votes-remove-president-trump/4669734002/">first impeachment last February</a>. This time around, <a href="https://thehill.com/homenews/senate/532955-romney-trump-caused-this-insurrection">Romney was again the first</a> to squarely blame Trump for inciting the attack and to take a stand in favor of impeachment.</p>
<p>Other Republican Senators called for Trump’s immediate resignation (which was not forthcoming): Lisa Murkowski (Alaska), Susan Collins (Maine), Liz Cheney (Wyoming), Patrick J. Toomey (Pennsylvania), Ben Sasse (Nebraska) and Roy Blunt (Missouri). In addition, two of Trump’s most ardent supporters appear to have thrown in the towel since the January 6 attack: <a href="https://edition.cnn.com/videos/politics/2021/01/07/lindsey-graham-capitol-certification-sot-vpx.cnn">Lindsay Graham</a> (South Carolina), who famously said “enough is enough,” but was seen traveling to Texas with the <a href="https://www.forbes.com/sites/andrewsolender/2021/01/12/lindsey-graham-travels-with-trump-to-texas-a-week-after-renouncing-him/">president on Air Force One</a> just days later. Far more significant is the position of Mitch McConnell (Kentucky), now the minority leader. He refused to join the objectors in December and forthrightly <a href="https://www.youtube.com/watch?v=6PdjAuzszSc">confirmed Biden’s victory on January 6-7</a>.</p>
<p>According to sources close to the senator, McConnell supported Trump’s second impeachment. But in his public statement, he <a href="https://edition.cnn.com/2021/01/12/politics/mcconnell-impeachment-trump-capitol-riot/index.html">did not specifically state that he would vote guilty</a> in a Senate trial. A total of eight Republican Senators could vote in favor of impeachment. </p>
<p>Conversely, an equal number of 8 Republican senators have defended Trump’s actions. These are the same ones now being accused of <a href="https://www.nytimes.com/2021/01/07/opinion/trump-consequences-republicans.html">perpetuating lies</a> about electoral fraud in the hope that they will harvest some of the support of the 74 million Americans who voted for Trump: the far-right Josh Hawley (Missouri) and Ted Cruz (Texas), as well as six like-minded senators: Rick Scott (Florida), John Neely Kennedy (Louisiana), Tommy Tuberville (Alabama), Cindy Hyde-Smith (Mississippi), Cynthia Lummis (Wyoming) and Roger Marshall (Kansas). </p>
<p>Which of these two groups most closely represents the private opinions of the majority of Republicans? Likely the latter, especially taking into account the 20 or so Republican senators who are up for reelection in 2022.</p>
<p>Under these circumstances, the Democrats will have to convince at least nine Republican senators to vote to convict Trump to secure a guilty verdict. This may prove difficult, or even impossible, to achieve. On January 26, only <a href="https://www.nytimes.com/live/2021/01/26/us/biden-trump-impeachment">five voted to proceed with Trump’s impeachment trial</a>, standing with their 50 Democratic colleagues. McConnell, Blunt and Graham voted against, as did the other Republican senators. That does not make the odds of Trump’s being convicted particularly high. </p>
<hr>
<p><em>The Fact check US section received support from <a href="https://craignewmarkphilanthropies.org/">Craig Newmark Philanthropies</a>, an American foundation fighting against disinformation.</em></p>
<p><em>Translated from the French by Alice Heathwood for <a href="http://www.fastforword.fr/en">Fast ForWord</a>.</em></p><img src="https://counter.theconversation.com/content/153919/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Blandine Chelini-Pont ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>Donald Trump is now the subject of a second impeachment trial. Although Democrats were initially optimistic, it is unlikely to succeed given the position of Republicans.Blandine Chelini-Pont, Professeur des Universités en histoire contemporaine, Aix-Marseille Université (AMU)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1543702021-02-01T03:10:56Z2021-02-01T03:10:56ZPolls say Labor and Coalition in a 50-50 tie, Trump set to be acquitted by US Senate<p>The <a href="https://www.news.com.au/national/politics/newspoll-scott-morrison-support-dips-labors-best-result-in-six-months/news-story/02ea1cdc15379603da6c3c625e7f4177">first Newspoll of 2021</a> has the major parties tied at 50-50 on two-party preferred, a one-point gain for Labor since the <a href="https://theconversation.com/morrison-remains-very-popular-in-newspoll-as-the-coalition-easily-retains-groom-in-byelection-151094">final 2020 Newspoll</a> in late November. The <a href="https://www.pollbludger.net/2021/01/31/newspoll-50-50-19/">poll</a> was conducted January 27-30 from a sample of 1,512 people.</p>
<p>Primary votes were 42% Coalition (down one point), 36% Labor (steady), 10% Greens (down one) and 3% One Nation (up one).</p>
<p>63% were satisfied with PM Scott Morrison’s performance (down three) and 33% were dissatisfied (up three), for a net approval of +30 points. While this is still very high, <a href="https://twitter.com/kevinbonham/status/1355832578486353926">analyst Kevin Bonham</a> says it is Morrison’s lowest net approval since April.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1355832578486353926"}"></div></p>
<p>Opposition Leader Anthony Albanese had a net approval of -2, down five points. Morrison led Albanese by 57-29 as better prime minister (60-28 in November).</p>
<p>While much commentary has written off Labor for the next election, a source of hope for the opposition is that while the Coalition has usually been ahead since the COVID crisis began, the two-party-preferred margin has been close.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-coal-push-from-nationals-is-a-challenge-for-scott-morrison-154078">View from The Hill: Coal push from Nationals is a challenge for Scott Morrison</a>
</strong>
</em>
</p>
<hr>
<p>Morrison’s great approval ratings have not translated into big leads for the Coalition. It is plausible that by the middle of this year COVID will not be a major threat owing to a global vaccination program.</p>
<p>A return to a focus on normal issues could assist Labor in undermining Morrison’s ratings and the Coalition’s slender lead on voting intentions.</p>
<p>Albanese has come under attack from the left owing to <a href="https://www.smh.com.au/politics/federal/labor-reshuffle-sees-bowen-take-on-climate-portfolio-20210128-p56xh6.html">Thursday’s reshuffle</a> in which Chris Bowen took the climate change portfolio from Mark Butler.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1354906712680095750"}"></div></p>
<p>But the Greens lost a point in Newspoll rather than gaining. With the focus on COVID, climate change appears to have lost salience.</p>
<h2>On Australia Day and climate change</h2>
<p>In an <a href="https://www.ipsos.com/en-au/ipsos-australia-day-poll-report">Ipsos poll</a> for Nine newspapers, taken before January 25 from a sample of 1,220 people, 48% disagreed with changing Australia Day from January 26, while 28% agreed.</p>
<p>But by 49-41 voters thought it likely Australia Day would be changed within the next ten years.</p>
<p>In a <a href="https://www.roymorgan.com/findings/8621-roy-morgan-survey-australia-day-january-25-2021-202101250620">Morgan SMS poll</a>, conducted January 25 from a sample of 1,236 people, 59% thought January 26 should be known as Australia Day, while 41% thought it should be known as Invasion Day.</p>
<p>In an <a href="https://essentialvision.com.au/wp-content/uploads/2021/01/Essential-Report-180121.pdf">Essential poll</a> conducted in mid-January, 42% (down 20 since January 2020) thought Australia was not doing enough to address climate change, 35% (up 16) thought we were doing enough and 10% (up two) thought we were doing too much.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/toxicity-swirls-around-january-26-but-we-can-change-the-nation-with-a-voice-to-parliament-153623">Toxicity swirls around January 26, but we can change the nation with a Voice to parliament</a>
</strong>
</em>
</p>
<hr>
<p>But there was a slight increase in those thinking climate change was caused by human activity (58%, up two since January 2020), while 32% (steady) thought we are just witnessing a normal fluctuation in the earth’s climate.</p>
<h2>Trump set to be acquitted in impeachment trial</h2>
<p>I related on <a href="https://theconversation.com/after-riots-donald-trump-leaves-office-with-under-40-approval-153442">January 20</a> that Donald Trump was impeached by the US House of Representatives over his role in inciting the January 6 riots with his baseless claims of election fraud.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump boarding a helicopter as he leaves the White House." src="https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/381570/original/file-20210201-15-3cyz55.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump departs the White House.</span>
<span class="attribution"><span class="source">Alex Brandon/AP/AAP</span></span>
</figcaption>
</figure>
<p>The Senate is tied at 50-50, with Vice President Kamala Harris giving Democrats the majority with her casting vote. But it requires a two-thirds majority to convict a president, so 17 Republicans would need to join the Democrats for conviction.</p>
<p>On January 26, a vote was called on whether it was constitutional to try a former president. The <a href="https://www.theguardian.com/us-news/2021/jan/26/trump-impeachment-republicans-senate-vote-to-dismiss">Senate ruled it constitutional</a> by 55-45, but just five Republicans joined all Democrats.</p>
<p>That is far short of the 17 required to convict, so Trump is set to be acquitted at the Senate trial that begins February 8.</p>
<p>Only ten of over 200 House Republicans supported impeachment. It is clear the vast majority of Congressional Republicans consider it more important to keep the Trump supporters happy than to hold Trump accountable for the rioters that attacked Congress.</p>
<p>In a late January <a href="https://www.monmouth.edu/polling-institute/reports/monmouthpoll_us_012521/">Monmouth University</a> poll, 56% approved of the House impeaching Trump while 42% disapproved. When asked whether the Senate should convict, support dropped to 52-44.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/biden-faces-the-world-5-foreign-policy-experts-explain-us-priorities-and-problems-after-trump-149805">Biden faces the world: 5 foreign policy experts explain US priorities – and problems – after Trump</a>
</strong>
</em>
</p>
<hr>
<p>FiveThirtyEight has started an <a href="https://projects.fivethirtyeight.com/biden-approval-rating/">aggregate of polls to track</a> new President Joe Biden’s ratings. His current ratings are 54.3% approve and 34.6% disapprove for a net approval of +19.7 points.</p>
<p>While Biden’s ratings are better than Trump’s at any stage of his presidency, they are worse on net approval than all presidents prior to Trump this early in their terms.</p>
<p>Prior to Trump, presidents were given a honeymoon even by opposition party supporters, but it is unlikely the 30% or so who believe <a href="https://www.monmouth.edu/polling-institute/reports/monmouthpoll_us_012521/">Biden’s win illegitimate</a> will ever approve of him.</p><img src="https://counter.theconversation.com/content/154370/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adrian Beaumont does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is good news and bad news for Prime Minister Scott Morrison in the first Newspoll for 2021.Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1533392021-01-25T16:35:38Z2021-01-25T16:35:38ZTrump impeachment after leaving office is nothing – in 9th-century Rome they put a pope’s corpse on trial<figure><img src="https://images.theconversation.com/files/380408/original/file-20210125-23-j4rsh9.jpg?ixlib=rb-1.1.0&rect=2%2C2%2C1595%2C1063&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Cadaver Synod (897): Seven months after his death, the corpse of Pope Formosus was found guilty of perjury.</span> <span class="attribution"><span class="source">Jean-Paul Laurens (1870) via Britannica</span></span></figcaption></figure><p>Having been impeached for the second time, former US president Donald Trump <a href="https://www.theguardian.com/us-news/2021/jan/25/trump-impeachment-trial-senate-schumer-pelosi-biden-capitol-attack">will be tried by the Senate in February 2021</a>, the first time a US president has been impeached twice for “high crimes and misdemeanours”. A single article of impeachment will be passed to the Senate on January 25, accusing Trump of “inciting insurrection” before his supporters attacked the US Capitol building on January 6. Formal arguments will begin in the Senate in the second week of February.</p>
<p>But a media campaign is already well underway, as supporters of the former president – and his political enemies – take to the airwaves to put their case. Prominent among Trump’s defenders has been senior Republican senator, Lindsey Graham, who <a href="https://www.thedailybeast.com/lindsey-graham-frets-that-impeaching-trump-could-lead-to-george-washingtons-impeachment">told Fox News</a> host Sean Hannity that if Trump were to be convicted by the Senate after he leaves office, it would open the door for past presidents to be impeached.</p>
<p>“If you can impeach a president after they’re out of office, why don’t we impeach George Washington?” Graham told Hannity. “He owned slaves. Where does this stop?”</p>
<p>There is of course an obvious flaw in Graham’s comment: being dead, Washington cannot appear to defend himself. </p>
<p>But the history of the early medieval papacy teaches us that even death may not be a bar to prosecution for misconduct in public office. More than 1,000 years ago, the western church was in crisis. There was a <a href="https://www.jstor.org/stable/1404567">bitter dispute between Rome and Constantinople</a> over which was the head of the Christian church. Waves of immigrants had settled in Hungary and Bulgaria, which increased tensions between Constantinople and Rome as they vied for sovereignty over a changing population with shifting allegiances.</p>
<p>These conflicts raised important questions about the qualities that were required of the leaders of Christendom. During this period there was a fairly frequent use of the early medieval equivalent of impeachment. This was a <a href="https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100547669">church synod</a> held in Rome, at which the holder of the highest office in Christendom could be tried for transgressions against the traditions and customs of their office. One such synod <a href="https://wsmonroe.com/2014/06/02/137/">took place in January 897</a> and heard charges against the most recent former pontiff, Formosus (pope from 891 to 896).</p>
<p>The only problem was that Formosus had been dead for seven months by the time the trial started. But the new pope, Stephen VI, was of the firm opinion that even when a leader had left office they could still be punished for their transgressions.</p>
<p>The synod thus went ahead under somewhat ghoulish circumstances. Pope Stephen had Formosus’ corpse withdrawn from its sarcophagus and brought to the Basilica of St John Lateran in Rome to be put on trial. The corpse was clad in papal vestments and seated on a throne to face charges that Formosus had broken the rules of the church. Close by stood a deacon to answer in Formosus’ name. Stephen VI charged the cadaver with having broken an oath not to return to Rome and of having illegally obtained the title of pope because he was already a bishop at the time of his election.</p>
<p>The alleged crimes took place long before the trial. In July 876, Formosus had been excommunicated for meddling in European power politics and prohibited from celebrating mass by Pope John VIII. But, after his death, the sentence of excommunication was withdrawn by John’s successor Marinus I in 878 and Formosus returned to his job as bishop of Porto. </p>
<p>Despite having blotted his copybook, Formosus was elected pope on October 1 891 and immediately involved himself in politics again. </p>
<p>In Italy, Formosus encouraged insurrection, persuading Arnulf of Carinthia <a href="https://wsmonroe.com/2014/06/02/137/">to advance to Rome</a> to drive out the reigning emperor. Arnulf seized Rome by force on February 21 896 but his success was shortlived – before he had the chance to move against the opposition’s stronghold in Spoleto, he was struck with paralysis and was unable to continue the campaign. Paralysis, incidentally, was widely regarded as a divine punishment in the Middle Ages.</p>
<p>It’s important to remember that this was an era in which the <a href="https://www.nationalgeographic.com/history/magazine/2016/01-02/vatican-dead-pope-on-trial/">papacy changed hands at an alarming rate</a> – almost every year between 896 and 904 saw a new pope pope, sometimes even two. Formosus was succeeded by Pope Boniface VI, who himself died two weeks later. Stephen VI, who was next to sit on the papal throne, had been a supporter of Formosus, but had changed camps and was now aligned with the Spoleto family, at that time all-powerful in Rome. </p>
<p>Stephen VI predictably pronounced Formosus guilty on the grounds that he could not legally have received the papal title since he was the bishop of another see and he had gone back on his oath not to celebrate mass. All his measures, acts and legal decisions were annulled, and all the priestly orders conferred by him were declared invalid. His papal vestments were torn from his body. The three fingers which the dead pope had used in consecrations were cut off his right hand and the corpse was buried in a grave in the cemetery for strangers, only to be removed after a few days and thrown into the river Tiber.</p>
<p>Donald Trump, at present hunkered down at his Mar a Lago resort in Florida, will not suffer the indignities of the corpse of Pope Formosus. But, like Formosus, he will see many (if not all) of his decisions and appointments reversed in these first days of Joe Biden’s presidency. Interestingly, after the death of Stephen VI, Formosus was rehabilitated and his papacy reinstated by the church. </p>
<p>Trump, meanwhile, is rumoured to still be considering a return to US politics. Having lost access to the modern equivalent of Formosus’ three fingers – his social media platforms – he can no longer easily convey favours or inspire his followers. But, as we now know, stranger things have happened.</p><img src="https://counter.theconversation.com/content/153339/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frederik Pedersen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The story of the ‘Cadaver Synod’ tells us that in some cases, even the departed can be held to account.Frederik Pedersen, Senior Lecturer in History, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1531962021-01-14T00:05:48Z2021-01-14T00:05:48ZTrump is impeached again in historic vote. Now Republicans must decide the future of their party<p>In a historic vote today, Donald Trump became the only US president to be impeached twice. </p>
<p>By a margin of 232–197, the Democrat-controlled US House of Representatives <a href="https://www.nytimes.com/live/2021/01/13/us/trump-impeachment">voted to charge Trump</a> with “inciting violence against the government of the United States” for his role in encouraging the insurrectionists who stormed the US Capitol last week.</p>
<p>When <a href="https://www.bbc.com/news/world-us-canada-49800181">Trump was impeached by the House last year</a> for abuse of power and obstruction of Congress, no Republicans joined the Democrats in the vote. </p>
<p>This time, however, ten members of Trump’s own party supported the effort to remove him from office.</p>
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<h2>Is there any chance of conviction?</h2>
<p>Now that the House has voted to impeach Trump, a trial will be held in the Senate, though the timing of this is unclear at the moment.</p>
<p>A two-thirds majority in the Senate is required to convict Trump, which would be 67 senators if all senators are present. If all 50 Democrats and independents vote to convict Trump as expected, then at least 17 Republicans would need to join them. </p>
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Read more:
<a href="https://theconversation.com/trump-impeached-a-second-time-but-trumpism-will-live-on-153072">Trump impeached a second time – but Trumpism will live on</a>
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<p>So far, only three (Lisa Murkowski, Ben Sasse and Pat Toomey) have <a href="https://www.politico.com/news/2021/01/12/senate-voices-trump-impeachment-457730">indicated</a> they would do so. Mitt Romney, a vocal Trump critic, will probably join them, and Susan Collins is a possibility. </p>
<p>Even though the most powerful Senate Republican, Mitch McConnell, is said to be <a href="https://www.nytimes.com/live/2021/01/13/us/trump-impeachment">privately supporting the impeachment effort</a> (and publicly said he hasn’t decided how he will vote), the numbers required to convict Trump will likely still fall short.</p>
<h2>What’s at stake for Republicans?</h2>
<p>Trump’s former national security advisor, John Bolton, <a href="https://abcnews.go.com/Politics/history-remember-trump-aberration-john-bolton/story?id=71374309">has said</a> the president “will be remembered as an aberration” when he leaves office after noon on January 20. </p>
<p>Nevertheless, the Republican Party will go on. And it will need to find its identify in the post-Trump era. </p>
<p>Do they continue with the arch-conservatism of the past decade that gave rise to the Tea Party and Trump, or do they return to the more traditional Republican politics associated with George W. Bush, John McCain and Romney?</p>
<p>While some Senate Republicans have <a href="https://www.theguardian.com/us-news/2021/jan/12/josh-hawley-fanned-flames-diehard-trump-voters">loudly declared their allegiance</a> to Trump, others appear to be suddenly on the fence. </p>
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Read more:
<a href="https://theconversation.com/whats-next-for-the-republicans-after-trump-here-are-5-reasons-for-pessimism-and-5-reasons-for-hope-149526">What's next for the Republicans after Trump? Here are 5 reasons for pessimism — and 5 reasons for hope</a>
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<p>Lindsey Graham, who went from being one of Trump’s most outspoken opponents to his staunchest backer in Congress, last week <a href="https://www.politico.com/news/2021/01/13/senate-republicans-impeachment-trump-trial-458934">broke with Trump</a> over his efforts to overturn the 2020 election results. However, Graham is <a href="https://www.politico.com/news/2021/01/13/senate-republicans-impeachment-trump-trial-458934">strongly opposed to impeachment</a>.</p>
<p>McConnell, too, could be looking ahead to rebuilding the party post-Trump, which is why <a href="https://slate.com/news-and-politics/2021/01/mitch-mcconnell-support-impeachment-trump.html">he is said to be wavering</a> on his vote to convict Trump. As one Republican close to him <a href="https://www.axios.com/republicans-trump-impeachment-conviction-a811503e-129d-4f52-bb0c-10f155710d22.html">told Axios</a>,</p>
<blockquote>
<p>If you’re McConnell, you want to be remembered for defending the Senate and the institution.</p>
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<p>The most prominent Republican to join the impeachment effort in the House is <a href="https://edition.cnn.com/2021/01/12/politics/liz-cheney-donald-trump-impeachment-vote/index.html">Liz Cheney</a>.</p>
<p>The daughter of former US Vice President Dick Cheney has only been in Congress since 2017. After just two years, however, she was elected chair of the House Republican Conference, the third-most senior Republican position in the House after minority leader (Kevin McCarthy) and minority whip (Steve Scalise).</p>
<p>A rising star in the party, Cheney surprised many when she said <a href="https://www.washingtonpost.com/politics/rep-liz-cheney-says-she-wont-seek-open-senate-seat-will-seek-reelection-in-house/2020/01/16/57d55192-386b-11ea-bf30-ad313e4ec754_story.html">she wouldn’t run</a> for the open Senate seat in Wyoming last year, opting to stay in the House.</p>
<p>With both McCarthy and Scalise voting against impeachment today, Cheney’s move suggests she is positioning herself as a leader of the anti-Trump faction in the party, with eyes on perhaps <a href="https://www.chicagotribune.com/election-2020/ct-liz-cheney-impeachment-vote-20210113-fuds4v66nbffvaq45pdhcvbqki-story.html">becoming the first female Republican House speaker</a>.</p>
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<h2>Why purging Trump might not be possible</h2>
<p>It must be noted that a significant portion of the American electorate still supports Trump and his policies. According to FiveThirtyEight, about <a href="https://projects.fivethirtyeight.com/trump-impeachment-removal-polls/">42% of Americans do not support impeachment</a>. And among Republicans, just 15% say they want him removed from office. </p>
<p>Whoever leads the Republican Party post-Trump will need to consider how they will maintain the rabid support of his “base”, while working to regain more moderate voters who defected from the party in the 2020 election.</p>
<p>The reason McConnell is reportedly said to be <a href="https://www.axios.com/mcconnell-trump-convict-impeachment-trial-99246975-8c02-47f4-90d3-14a23c00afd1.html">considering voting to convict</a> Trump is that is would make it easier to purge him from the party.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/delighting-in-causing-complete-chaos-whats-behind-trump-supporters-brazen-storming-of-the-capitol-152808">'Delighting in causing complete chaos': what's behind Trump supporters' brazen storming of the Capitol</a>
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<p>But purging Trump will be difficult. Even without Twitter, the power Trump wields is immense. The fear among many Republicans is that he can <a href="https://www.washingtonexaminer.com/news/trump-primary-thune-noem-kemp-dewine-challenge">encourage</a> primary challenges to any incumbents he feels have wronged him.</p>
<p>He’s done this many times before. In 2018, Trump strongly endorsed Brian Kemp in his successful campaign for governor of Georgia, but when Kemp rejected his claims of election fraud in November, Trump announced he was <a href="https://nypost.com/2020/11/29/trump-says-hes-ashamed-to-have-endorsed-georgias-governor/">ashamed</a> of having supported him. Trump loyalists are already <a href="https://www.savannahnow.com/story/news/2021/01/09/georgia-governor-brian-kemp-blamed-loeffler-and-perdue-senate-losses/6609201002/">looking for a primary challenger</a> to him.</p>
<p>Trump has also called for primary challenges to Republican Ohio governor <a href="https://www.forbes.com/sites/andrewsolender/2020/12/08/all-the-republicans-trump-has-targeted-for-primary-challenges/?sh=7fa1aa1f5924">Mike Dewine</a> and <a href="https://www.forbes.com/sites/andrewsolender/2020/12/22/trump-adds-senate-leader-john-thune-to-list-of-republicans-he-wants-unseated/?sh=dcac08e7879b">John Thune</a>, the number two Republican in the Senate. </p>
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<h2>Security concerns among Trump’s supporters</h2>
<p>Trump doesn’t appear to want to go away quietly, which is also a cause for concern from a security standpoint.</p>
<p>This week, a leaked internal FBI <a href="https://www.southbendtribune.com/news/nation/fbi-warns-of-plans-for-armed-protests-at-all-50-state-capitols-next-week/article_20183518-550b-11eb-b8ab-9fb38af6f735.html">bulletin</a> warned that armed protests are planned for all 50 states and Washington DC in the days before President-elect Joe Biden’s inauguration on January 20. </p>
<p>Some state capitol buildings have begun <a href="https://www.jsonline.com/story/news/politics/2021/01/11/wisconsin-capitol-windows-boarded-after-warning-armed-protests/6628123002/">boarding</a> up their doors and windows, while 15,000 National Guard troops have been <a href="https://english.alarabiya.net/en/News/world/2021/01/12/15-000-National-Guard-troops-to-deploy-to-Washington-DC-ahead-of-Biden-inauguration">mobilised</a> for deployment to the nation’s capital ahead of <a href="https://www.politico.com/news/2021/01/12/right-wing-extremist-social-media-458387">expected</a> violence and unrest. </p>
<p>This is an unfortunate sign of how many expect Trump’s supporters to respond to both his impeachment and Biden’s inauguration — even with Trump <a href="https://www.politico.com/news/2021/01/13/trump-no-violence-house-impeachment-458980">finally urging against further violence and unrest</a>.</p>
<p>Most presidents aim to leave office with the nation better off than when they entered, but Trump’s legacy appears to be cementing a more divided country, where his brand of aggressive “conflict politics” may be the new norm.</p>
<p>This is a no-win situation for the country. And Republicans are still trying to figure out which side of history they want to be on.</p><img src="https://counter.theconversation.com/content/153196/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bryan Cranston does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Senate Republicans must now decide whether to convict the president — an unlikely outcome. But even if they do, purging Trump from the party will prove more difficult.Bryan Cranston, Lead Academic Teacher - Politics & Social Science (Swinburne Online), Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1530632021-01-13T13:25:54Z2021-01-13T13:25:54ZIs impeaching President Trump ‘pointless revenge’? Not if it sends a message to future presidents<figure><img src="https://images.theconversation.com/files/378418/original/file-20210112-13-1a9h4tk.jpg?ixlib=rb-1.1.0&rect=22%2C4%2C2973%2C1836&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A different type of protest comes to the Capitol.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gather-at-the-base-of-the-u-s-capitol-with-large-news-photo/1296007459?adppopup=true">Paul Morigi/Getty Images for MoveOn</a></span></figcaption></figure><p>A House majority, including <a href="https://www.nytimes.com/2021/01/13/us/republicans-support-impeachment.html">10 Republicans</a>, <a href="https://www.cnn.com/politics/live-news/house-trump-impeachment-vote-01-13-21/index.html">voted on Jan. 13 to impeach President Trump</a> for “incitement of insurrection.” The vote will initiate a trial in the Senate – but that trial will likely not be finished before Trump’s term of office <a href="https://nymag.com/intelligencer/2021/01/is-there-enough-time-to-impeach-and-remove-trump.html">comes to an end</a> on Jan. 20.</p>
<p>There is an open constitutional question about whether a president can be impeached <a href="https://reason.com/volokh/2019/12/05/can-the-house-impeach-a-former-president/">after he has left office</a>. A more basic question asks about the point of impeaching Trump. Conservative radio host Hugh Hewitt, writing in The Washington Post, described the entire exercise as “<a href="https://www.washingtonpost.com/opinions/2021/01/08/fast-track-trump-impeachment-pointless-revenge/">pointless revenge</a>.” </p>
<p>“It isn’t principled, it isn’t concerned with justice and it isn’t concerned with the future,” he stated.</p>
<p>As a scholar who writes about <a href="https://phil.washington.edu/people/michael-blake">the moral justifications of social and legal institutions</a>, I argue that there may be good moral reason for this impeachment – even if it cannot be completed before Trump leaves office. </p>
<p>Impeachment is not a criminal procedure; it is generally described as “<a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2325&context=ylj">quasi-criminal</a>” in American law. </p>
<p>The philosophical justifications given for the institution of criminal law, however, might help us understand the purposes this impeachment might serve. </p>
<h2>Impeachment and criminal law</h2>
<p>Criminal law can serve a variety of functions. It <a href="https://openoregon.pressbooks.pub/ccj230/chapter/8-4-incapacitation/">incapacitates</a> the criminal, through incarceration; it serves a <a href="https://plato.stanford.edu/entries/kant-social-political/#Pun">retributive</a> function, by forcing the criminal to experience punishment proportionate to the crime; and it expresses a particular view about the <a href="https://www.jstor.org/stable/27901603?seq=1">limits of moral diversity</a>, by setting a limit to what sorts of action a society will accept.</p>
<p>Incapacitation is likely a bad justification for the impeachment of an outgoing or former president. Incapacitation is intended to stop a criminal from repeating his or her offense. The offense grounding the president’s impeachment, though, was an act of speech, one the article of impeachment describes as “<a href="https://www.documentcloud.org/documents/7347691-Articles-of-impeachment-against-President-Trump.html">incitement of insurrection</a>.” A president who is impeached and removed from office is precluded from holding federal office in the future; that, however, does nothing to remove the power of Trump to speak.</p>
<p>Retribution is similarly unpromising as justification for impeachment. The
“punishments” here – including the <a href="https://reason.com/volokh/2021/01/10/under-the-former-presidents-act-a-removed-president-does-not-receive-a-pension-office-staff-office-space-and-secret-service-protection/">loss of Secret Service protection, office space and public funding</a> – hardly seem adequate, if they are conceived of as punishments for one who has incited an insurrection. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump, " src="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/378424/original/file-20210112-21-1la7lmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Donald Trump greets the crowd at the ‘Stop the Steal’ rally Jan. 6 in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-greets-the-crowd-at-the-stop-the-news-photo/1294918250?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>Punishment as moral condemnation</h2>
<p>The final function of criminal law, though – one emphasized by philosopher <a href="https://www.nytimes.com/2004/04/05/us/joel-feinberg-77-influential-philosopher.html">Joel Feinberg</a> – is likely better able to justify an attempt to impeach an outgoing president. Criminal law, for Feinberg, is intended to mark out the limits of moral disagreement, through a symbolic statement condemning certain sorts of acts as <a href="https://www.jstor.org/stable/27901603?seq=1#metadata_info_tab_contents">immoral</a>.</p>
<p>Citizens in a democratic society do not need to agree about political morality. They can recognize their political opponents as entitled to their views – however mistaken each side takes those alternative views to be. Conservatives and liberals have often regarded each other as wrong, but nonetheless <a href="https://www.nbr.co.nz/sites/default/files/The%20Principle%20of%20Loyal%20Opposition.pdf">members in good standing in their political communities</a>. </p>
<p>There are, however, some points at which a society makes a shared statement that a given sort of practice or act is not politically respectable – and the criminal law is one means by which that statement is made. As Feinberg notes, imprisonment is not simply an unwelcome punishment – it is a symbolic statement that the criminal has done something of which he or she <a href="https://www.jstor.org/stable/27901603?seq=1#metadata_info_tab_contents">ought to be ashamed</a>. </p>
<p>The criminal – or the impeached – might not actually feel ashamed. The function of the criminal law, however, is to say that he or she ought to feel ashamed, and that those who do that sort of act are outside the realm of normal moral disagreement. </p>
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<h2>Politics after violence</h2>
<p>We might see this sort of function by examining how legal institutions have responded to much more serious forms of political wrongdoing. The <a href="https://nuremberg.law.harvard.edu/about">Nuremberg Tribunals</a>, most famously, put the Nazi hierarchy on trial, for <a href="https://www.law.ox.ac.uk/centres-institutes/centre-criminology/blog/2015/02/nuremberg-legacy-and-crime-aggression-promise">aggressive war</a> and for crimes against humanity. </p>
<p>The punishments meted out – <a href="https://www.history.com/topics/world-war-ii/nuremberg-trials">ranging from 10 years in prison to a relatively quick death by hanging</a> – would seem grossly inadequate, if they were intended to match the moral gravity of genocide and forced labor. </p>
<p>The best justification of Nuremberg, though, looked not to the Nazis themselves, but to <a href="https://www.nationalww2museum.org/war/articles/the-nuremberg-trial-and-its-legacy">those who might have followed in their footsteps</a>. The trial was intended to identify the line past which political societies could not stray without being regarded as shameful – with an eye not simply on the present, but <a href="https://www.jstor.org/stable/2193089">in the future</a>.</p>
<p>President Trump’s wrongdoing is nowhere near as grotesque as that of the Nazis, and no purposes are served by pretending otherwise. The best moral purpose for his impeachment, though, might have some moral similarities to the functions of Nuremberg. </p>
<p>The impeachment of President Trump is an indication that there is a need to mark out, through a definitive statement, what no president ought to do. It will also set the moral limits of the presidency – and, thereby, send a message to future presidents who might be tempted to follow in President Trump’s footsteps. </p>
<p><em>This story has been updated with the House’s vote to impeach the president.</em></p><img src="https://counter.theconversation.com/content/153063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Blake receives funding from the National Endowment for the Humanities. </span></em></p>Even though a House majority voted to impeach, President Trump, the process will likely not be finished before he’s left office. A philosopher argues why the impeachment is an important moral action.Michael Blake, Professor of Philosophy, Public Policy and Governance, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.