Ernst wrongly claims a Trump impeachment trial would be unconstitutional

Video still from Sen. Joni Ernst’s New Year’s message, Jan. 1, 2021.

Sen. Joni Ernst said on Tuesday the Senate shouldn’t try Donald Trump, even though he has been impeached by the House of Representatives.

“My overall question is: Why are we doing this when the president is out of office tomorrow?” Ernst told reporters in Washington D.C.

The House impeached President Trump on Jan. 13 on one count of “Incitement of Insurrection” for encouraging his supporters to attack the Capitol while the joint session of Congress gathered on Jan. 6 to certify the votes of the Electoral College.

As the article of impeachment explains, Trump’s incitement went beyond his speech on Jan. 6 during which he “willing made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol,” and includes weeks of “false claims” that he won the election, as well as an attempt to pressure the Georgia Secretary of State to “find” enough votes to overturn Joe Biden’s victory in the state.

The House voted 232 to 197 to impeach Trump. Only one of Iowa’s four House members, Democrat Cindy Axne, voted for impeachment. Axne has been outspoken about holding Trump responsible for his actions. Iowa’s three freshman Republican representatives — Ashley Hinson, Mariannette Miller-Meeks and Randy Feenstra — all opposed impeachment, and all three have avoided saying if Trump bears any responsibility for the riot at the Capitol.

Ernst didn’t address Trump’s actions, but instead accused Democrats of acting in bad faith.

“I’ve read arguments on both sides, but he’s not our president after tomorrow,” she said. “So the only reason I can see is that Democrats want to further divide the nation.”

Ernst was asked if she thinks it is constitutionally permissible to try an impeached president once he is out of office.

“I don’t think it is,” she said.

Ernst is incorrect. There is precedent for the Senate conducting a trial of an impeached federal official after that official has left office.

The House has only impeached 20 officials in its history, and three of them were already out of office when impeached.

In 1797, William Blount of Tennessee was expelled from the U.S. Senate for his role in a conspiracy to surrender U.S. territory to Great Britain, while the House was considering articles of impeachment against him. In 1798, the House did impeach Blount despite his expulsion, and transmitted the articles of impeachment to the Senate. The Senate considered the articles, but in January 1799 decided to dismiss them since Blount had already been expelled (also because Blount had fled to Tennessee, where he remained popular, and was refusing to return to Philadelphia, which is where the capitol was located between 1790 and 1800).

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In 1862, the House impeached West Humphries, a federal judge in Tennessee. A year earlier, Humphries not only abandoned his place on the federal bench, he abandoned the United States, declaring his loyalty to the Confederacy and accepting a position as one of its judges. The Senate convicted Humphries. Following that conviction, a bill was passed disqualifying Humphries from ever holding any federal office again.

William Belknap, President Grant’s flagrantly corrupt Secretary of War, resigned shortly before the House voted in 1876 to impeach him for accepting bribes. The Senate tried him, but he was not convicted.

There is nothing in the Constitution, Senate rules or Supreme Court rulings on impeachment that prevents the Senate from trying any impeached federal official, including the president, even though they have left office, although the Constitution limits the penalties for an official found guilty to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

While Ernst was questioning why anyone would want to hold Trump accountable when he only has a day left in office, outgoing Senate Majority Leader Mitch McConnell was on the floor of the Senate making Trump’s responsibility for the Capitol insurrection clear.

“The mob was fed lies,” McConnell said. “They were provoked by the president and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like.”

McConnell has reportedly told associates he may vote to convict Trump.

Sen. Joni Ernst on CSPAN discussing why Trump’s first impeachment might hurt Democrats’ chances in the 2020 election, Jan. 27, 2020. — illustration by Jordan Sellergren/Little Village

Ernst, of course, was a leading defender of President Trump during his 2020 impeachment, resulting from his attempt to pressure the president of Ukraine into launching an investigation into Biden, because Trump hoped it would undermine Biden’s candidacy.

Then, as now, Ernst accused Democrats of acting in bad faith. Ernst even went so far as to say that Democrats voting to impeach Trump might lead to Biden immediately facing impeachment, if he was elected.

“Joe Biden should be very careful what he’s asking for because, you know, we can have a situation where if it should ever be President Biden, that immediately, people, right the day after he would be elected would be saying, ‘Well, we’re going to impeach him,’” Ernst said during an interview with Bloomberg in February 2020.

Ernst repeated one of Trump’s lies about Biden “turning a blind eye” to corruption in Ukraine while vice president as potential grounds for his future, hypothetical impeachment. In fact, Biden had pressured the Ukrainian government to be more aggressive in investigating corruption.

On Tuesday, Ernst decided to plead with Biden, instead of make meritless threats.

“And [I’m] asking President-elect Joe Biden, ‘Please, let’s move forward,’ ” Ernst said. She added, “We need to start healing, I don’t think this [Senate trial] does that.”

Sen. Joni Ernst at Omaha’s Eppley Airfield for a Trump rally. — photo from Ernst campaign Twitter account

After the House voted to impeach Trump, Biden issued a statement saying the Jan. 6 riot was “an armed insurrection against the United States of America. And those responsible must be held accountable.”

Biden said the insurrection “was carried out by political extremists and domestic terrorists, who were incited to this violence by President Trump.”

In his statement, Biden said the House had fulfilled its constitutional responsibility and held the president accountable, adding, “I hope that the Senate leadership will find a way to deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation.”