U.S. Sen. Tim Kaine, D-Virginia, says he plans to introduce a resolution that censures former President Donald Trump for inciting the Jan. 6 insurrectionist mob that stormed the Capitol.
Judging from the reaction we’ve seen on social media, this is not popular with many on the left — who think a censure lets Trump off too easy. They want nothing less than a conviction in his upcoming impeachment trial.
Here’s the catch: There will be no conviction. It was always going to be hard to find 17 Republicans to join 50 Democrats to reach the two-thirds majority required. The Senate vote on whether it’s even unconstitutional to try Trump now that he’s left office showed those votes simply aren’t there. Only five Republicans voted “yes” for a final majority of 55-45. What Republican would vote for conviction if they’ve already voted that the trial is unconstitutional? The answer seems clear: None.
This vote mirrors exactly what happened the only other time the Senate held an impeachment trial for a federal official who had left office — in 1876, when President Ulysses Grant’s secretary of war, William Belknap, resigned hours before the House impeached him for accepting kickbacks on military contracts. Then a majority in the Senate voted that the trial was constitutional — but the majority fell short of two-thirds. So did the ultimate vote on Belknap’s guilt, which seemed undeniable, but many senators remained troubled by the question whether the trial was constitutionally suspect. Whether it really is constitutional to try officeholders after they’ve left office is ultimately a matter of opinion. The sole arbiter of the U.S. Constitution — the Supreme Court — has never weighed in on the matter, and likely never will.
We can have a rousing debate on why most Republicans voted the way they did. Do they legitimately believe the trial is unconstitutional or are they still cowed by Trump? It doesn’t really matter. The vote is done. What might matter is what signal the Senate sends by failing to convict Trump: Would that effectively say that it’s OK for a future president to incite a mob to storm the Capitol? That’s a dangerous precedent to set. Thought experiment: When the Senate failed to convict President Bill Clinton in 1999, did that effectively say that future presidents could lie under oath and obstruct justice and get away with it? Probably so, right?
That’s where Kaine’s censure resolution fills a void: In theory, this would give the Senate a way to formally disapprove of Trump’s incitement without triggering the constitutional question that Republicans say gives them so much pause. Of course, that also might make Kaine’s resolution more problematic for some of them: They couldn’t hide behind the fig leaf of the constitutional question; they’d have to vote directly on what Trump did. The Hill website says some Republicans aren’t keen to have to address that. They rather like the idea of an impeachment trial where they can claim their vote against conviction is really about procedural niceties and then move on. That, of course, is also called spinelessness. Kaine’s censure resolution is both weaker than an impeachment conviction but a more difficult vote for Republicans.
Kaine says his censure resolution is stronger than your typical censure resolution (which aren’t all that typical). It would formally censure Trump but also invoke a provision of the 14th Amendment that allows Congress to ban him from holding office in the future. Kaine calls this as a “condemnation” resolution, not merely a censure resolution. “In a way I view it as kind of censure-plus because it has these two factual findings that could have the same consequence as an impeachment conviction,” Kaine told The Hill. “It’s not just, ‘hey you did those things and that’s bad.’”
Only one president has been censured — Andrew Jackson in 1834 — and that censure was later expunged from the record. The Jackson censure dealt with something much less serious than inciting a mob to storm the Capitol. Instead, it dealt with the federally chartered Bank of the United States, a controversy so complicated that we’ll skip over the details in the interest of time and space. Just know that Jackson and his Democratic Party were against the bank; the Whigs were for it. When Jackson pulled federal deposits out of the bank, the Whig-controlled Senate censured him. Jackson was not pleased, to put it mildly. When Democrats later won control of the Senate, they voted to undo what the Whigs had done.
The official history of the U.S. Senate describes things this way: “With boisterous ceremony, the handwritten 1834 Journal was borne into the mobbed chamber and placed on the secretary’s table. The secretary took up his pen, drew black lines around the censure text, and wrote ‘Expunged by the order of the Senate.’ The chamber erupted in Democratic jubilation and a messenger was dispatched to deliver the expunging pen to Jackson. Dressed in the deep black of a mourner, Henry Clay lamented: ‘The Senate is no longer a place for any decent man.’”
If the Senate adopted Kaine’s resolution, it’s easy to see where it would become a campaign point for Republicans just like the censure of Jackson became one for Democrats in the 1830s. Would a future Republican-controlled Senate expunge the censure just as Jackson’s was expunged? Quite possibly. We wish Republicans had the courage to break from Trump but they face a radicalized party base that still views Trump in almost cult-like fashion. That’s not good for Republicans, or democracy at large — the nation needs a serious-minded conservative party, not a party where conspiracy theorists hold sway. The nation also needs a way to come to grips with the violence we saw on Jan. 6 lest it be normalized and repeated. This shocking insurrectionary outburst should not be brushed aside in the name of “unity” and “moving on.” Instead, we should heed the advice of the late singer Joe Strummer, who sang: “Well I’ll tell you one thing that I know / You don’t face your demons down / You gotta grapple ’em, Jack, and pin ’em to the ground.”
We saw America’s inner demons on Jan. 6. What will we do about them? Kaine’s censure resolution would be one way. So, too, would a criminal indictment. Will we see either actually happen?