Just a half-hour after history was made with Donald Trump becoming the first U.S. president in history to be impeached twice, the New York State Bar Association presented the aptly titled webinar “Impeachment Redux: Impeachment, the 25th Amendment and Criminal Prosecution.”
Jerry H. Goldfeder, chair of NYSBA’s Task Force on the Presidential Election and special counsel to Stroock & Stroock & Lavan, along with Professor Jed Shugerman of Fordham University School of Law, provided a detailed overview of impeachment after the House impeached Trump for inciting an angry mob to storm the U.S. Capitol on Jan. 6.
“No matter how you feel about this president of the United States, and no matter how you feel about the article of impeachment and what the House just did in its vote, it’s an obviously very sobering moment for the United States of America,” said Goldfeder as the discussion began. “It is rare for the power of impeachment to be used. It is even rarer for it to be used against a president of the United States and of course it is unprecedented for a president to be impeached twice.”
Goldfeder explained that the articles of impeachment would next go to the Senate where a two-thirds majority vote is needed to convict. If convicted, another vote would likely take place aiming to prevent Trump from ever holding a federal office again. The latter vote would only need a majority for approval.
Shugerman took issue with the wording of the impeachment article – incitement of insurrection.
“I really challenge anyone to look at the actual words of Trump’s speech and find anything that rises to incitement, and if you do I want to ask you what would happen when the shoe’s on the other foot, when a progressive speaker says something like ‘fight like hell,’” said Shugerman.
“Let’s keep it in context,” responded Goldfeder, pointing out that people discussed the insurrection for weeks on social media and some brought guns and put up a noose. “Are you going to say that he was not aware that they were going down to the Capitol to disrupt in a potentially violent way? I think it’s fair to infer that he was inciting people to do what they were there to do…”
Shugerman pointed out that several Republican members of the House cited the wording of the article of impeachment as to why they did not vote to impeach, though he noted that perhaps it was “just a convenient excuse.”
“But I also think they happen to raise a reasonable objection, which is there was no statement that Trump made that you could identify as incitement,” said Shugerman. “I challenge anyone here to give me a quote that they would be willing to stand by that they would want to say is incitement.”
However, Shugerman noted that it’s quite likely in the next month or two, we will find out more evidence that will clearly point to insurrection on the part of President Trump.
Next, the conversation turned to the 14th Amendment, Section 3, which states that no person shall hold any federal office if they have engaged in insurrection. Congress may vote by two-thirds majority in each House to expel.
Shugerman said an argument can be made that Senators Ted Cruz and Josh Hawley were engaging in insurrection or giving aid or comfort to the enemies thereof, but would like to see more concrete evidence before that route is pursued.
Shugerman explained that while a two-thirds majority is needed to expel fellow members of both Houses, only a simple majority vote is required to censure. Shugerman said one option is to censure all of the members, including those who voted against certifying the election results, from serving on any committee.
“This is the move I’d make as the majority,” said Shugerman. “I think that Ted Cruz and Josh Hawley should be kicked off of the Judiciary Committee permanently. I think it was a mockery of the idea of judiciary and justice that those two have any say about judges.”
Shugerman, who said Cruz and Hawley have been “delegitimizing American democracy,” said Republicans would then have to win back the majority in order to allow them back on the Judiciary Committee.
The panelists noted that they decided not to focus on the 25th Amendment during the discussion because Vice President Mike Pence in recent days indicated that he would not pursue it.
During the discussion, Goldfeder said 2020 has educated many Americans about these constitutional issues.
“Up until 2020 there were just a handful of us who studied impeachment, who understood it, who looked at all the issues with regard to the 25th Amendment and now the pardon power and people are talking about it now,” said Goldfeder. “You literally walk down the street and people are talking about it, which is a good thing.
“It means that people have a much better understanding of the electoral college process… process of the way Congress functions, what a president can do, what a president can’t do,” continued Goldfeder. “So, in a way there is a silver lining in this terrible situation that we have lived through in the last year because it was actually a year ago that [Trump] was impeached for the first time.”
The webinar was moderated by Hilary F. Jochmans, founder of Jochmans Consulting and NYSBA’s director of policy. The webinar is free.
Click here to watch.