On Tuesday, in a sign of Republican sentiment around the upcoming trial of Donald Trump, a test vote engineered by Rand Paul resulted in all but five GOP senators declaring that impeachment and conviction of the former president after he’s left office would be unconstitutional. Some lawmakers, anticipating Trump’s acquittal, are now seeking a less serious and consequential sanction: a congressional censure, as Axios reports:
Sens. Tim Kaine and Susan Collins are privately pitching their colleagues on a bipartisan resolution censuring former President Trump, three sources familiar with the discussions tell Axios …
Senators are looking for a way to condemn Trump on the record as it becomes increasingly unlikely Democrats will obtain the 17 Republican votes needed to gain a conviction in his second impeachment.
Kaine and Collins both voted against Paul’s motion, but Kaine has already been making noise about the futility of the impeachment trial and its possible effect on Joe Biden’s confirmations and legislative agenda.
As I explained in 2019 when there was talk of censuring Trump if his first impeachment failed, censure is not a constitutional sanction but purely an expression of congressional disapproval — the proverbial slap on the wrist:
Unlike impeachment, a presidential censure has no specific constitutional authorization. Censure has been more customarily meted out by Congress to its own members (most famously Joe McCarthy in 1954) as a disciplinary measure short of the constitutionally sanctioned remedy of expulsion … [T]he Senate (controlled by the opposition Whigs) censured [Andrew] Jackson during a dispute over the Bank of the United States, but Democrats had the measure expunged from the record when they regained control of the chamber. Censure resolutions have been introduced but not enacted during multiple presidencies.
Most notably, Democrats tried to substitute a censure resolution during the impeachment trial of Bill Clinton, but Senate Republicans brushed it away despite the general understanding that Clinton was going to be acquitted. Democrats are in a parallel position today, except that with Trump having already left office, censure seems especially toothless. It is, in theory at least, vastly more feasible since it only requires a majority vote in the Senate (which could be retroactively echoed by the House, if it so wishes, though that might be a bit awkward since House Democrats refused to take up a censure resolution brought by a small group of Republicans earlier this month in an effort to head off impeachment). With Collins onboard, 51 votes are within Democrats’ reach if they unite behind the strategy. But a censure motion could be filibustered by hard-core Trump supporters who reject the suggestion that he’s done anything wrong. So as Axios reports: “Some Democrats are interested only if at least 10 GOP senators publicly commit to a censure, thus ensuring the 60-vote margin needed to pass major legislation in the chamber.”
Another big issue is timing: Would the Senate vote on censure before the scheduled February 9 impeachment trial, possibly leading to a quick trial adjournment? Or would it serve as a fallback if, as everyone expects, Trump is acquitted? All that is unclear, though Kaine believes the trial’s ostensible goal — banning Trump from future office — can be achieved via a resolution invoking the 14th Amendment’s prohibition on officeholding by those guilty of waging or encouraging an insurrection.
In any event, the Republican support that would be needed to quickly pass a censure resolution could be problematic for the simple reason that it would divide the GOP between those willing or even eager to condemn Trump’s conduct on January 6 (or even earlier, in seeking to overturn a state-certified presidential outcome) and those who would prefer to defend him, or at least remain silent in the face of MAGA threats of retribution for those who dare criticize the 45th president. One of the convenient things about the “it’s unconstitutional” posture that most Republicans have assumed going into the impeachment trial is that it is a process objection that does not require any defense or condemnation of Trump. A censure resolution would force some tough decisions that Mitch McConnell would likely want to spare his conference. So easy as it should be for Congress to acknowledge the lawless and dangerous conduct Trump engaged in on January 6, don’t bet the farm on it actually happening.