Sometime in the past couple of years weeks, Lawrence O’Donnell hosted Harvard Law Professor Laurence Tribe. When Rachel Maddow handed off her show to O’Donnell, she asked him* to ask Prof. Tribe a question: Does conviction require two-thirds of the entire Senate or only of those present and voting? Prof. Tribe responded the latter, that conviction would require two-thirds of those Senators present at the time to vote yes. As Maddow surmised, that would mean that if 20 or so Republican Senators suddenly grew half a spine and were absent for the vote, then Dems could prevail (a full spine would be a vote to convict). No video, but here’s a link:
The Constitution doesn’t indicate that removal from office requires two-thirds of the Senate. It requires two-thirds of senators present for the proceedings.
The inclusion of this single word in the Constitution’s impeachment clauses shifts the mathematical ledger of how impeachment, however unlikely, could go down. It allows for the all-important two-thirds threshold to exist along a sliding scale—far from the full attendance of the 100-member Senate. In theory, a vote to convict the President (or anyone else) would count as legal with as few as 34 members, not 67, assuming the absolute minimum (51) participated.
“The Constitution contains quorum requirements [elsewhere] and clearly distinguishes between percentages of a particular chamber and percentages of ‘members present,'” said Laurence Tribe, a professor of constitutional law at Harvard Law School and the co-author of the book To End a Presidency: The Power of Impeachment. “That language in the provision for Senate conviction on impeachment charges is quite deliberate, creating precisely the possibility” described above.
Traditional Republicans are leaving their party en masse (2,000 in the Tampa Bay area as of Jan. 15!) following the riotous sedition attempt and the sight of GOP elected officials defending and sometimes collaborating with the rioters. So now is the time to hold those officials accountable.
- Write and call your Republican Senator(s) to persuade them to skip the vote, explaining that doing so would be as patriotic as voting yes but without the political repercussions. “You’re surely aware that trump being able to run again in 2024 would be bad not only for the country (a secondary concern to them) but would also be bad for the party (their primary concern, because party over country).” You could even offer them an “out” — maybe they recently attended *some* gathering that might have included someone with COVID so they’re self-isolating until they get a negative test result — and that result could come the next day. Convince them that allowing Dems to convict trump would be in their best interest. Remember how they’re always looking out for themselves first and invoke their own self-interest.
- Write and call your Democratic Senator(s) and describe the scenario, and get them to lobby their GOP colleagues to absent themselves from the vote. They can probably come up with better rationales than I did, but COVID-related isolation could be a plausible CYA excuse for missing such a crucial vote.
- Write a letter to the editor of your local paper and urge readers to contact Senators and add their voice to yours.
We don’t know when Speaker Pelosi will submit the article of impeachment to the Senate, but she told Joy Reid that it would be soon. It could be as early as next week, or she might delay for a short while to allow the Schumer-led Senate to conduct their regular business of confirming Biden Administration officials and passing legislation, including COVID relief. Since we don’t know the timing, the time to start is right now!
* She apologized to O’Donnell on air for putting him on the spot like that; my guess is she’d just thought of the question and this was the only chance she had to ask it.