[I wrote this before I realized the deep cowardice inside that conference.]
A “Symbolic”Impeachment Vote Might Have Been A Way Out for Republicans
The Constitution requires 2/3rds of the Senators present, or under Senate Rules regarding a quorum, at least 67 votes to convict an officer facing an impeachment —including a former president.
But what happens if the president is already gone from office?
The automatic and mandatory removal penalty required under the impeachment clause of Article II, Section 4 only becomes. meaningful as a record of conviction — since it only triggers a mandatory removal if there is a sitting officer. Obviously, the Senate cannot “remove” a former officer, including a former president.
Hence, in that context, the 2/3rds (67 member) vote for conviction thereby becomes only a “symbolic vote,” merely declaring and expressing Senate outrage at the “high crime and misdemeanor” exhibited by the single article of Impeachment.
After that we know based on all of the previous Senate precedent as well as the text of the Constitution at Article I, Section 3, clause 7 that in this rare instance of judgment as to a previously “removed” officer, that following a 2/3rds vote to convict, that an additional vote to “disqualify” would still be required.
Nothing in the text of the Constitution or the Senate Rules would prohibit or prevent an initial vote to convict —essentially a purely symbolic vote (since in this case the officer is already “removed”) to be followed by a separate vote by the Senate as to disqualification by only a simple majority of 51 Senators. These need not be the same set of Senators. Indeed they need not vote, at all.
In essence, the 2/3rds vote of 67 Senators in this instance acts purely as symbolism — a sort of declaratory judgment of wrongdoing — akin to censure. But the subsequent vote — or “actual” vote to disqualify need. only draw 50 Senators plus 1 — plainly only a subset of the same set of Senators.
Indeed, assuming 17 Republicans joined 50 Democrats in the first purely symbolic vote, only one (1) of those Republicans needs to later join the Democrats to accomplish the operational verdict of disqualification.
The remaining sixteen (16) Republican Senators can (and should) claim their votes were intended to declare their condemnation of the conduct at issue but were only cast in a context that did not lead to removal.
Obviously, they would be subject to political criticism for “enabling” the subsequent vote on disqualification — but could argue they did not support that as a remedy in the final vote.
-Albert Turner Goins