Senators consider alternatives to impeachment trial in view of likely Trump acquittal

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Two U.S. senators, a Democrat and a Republican, are working to attract support for a vote to censure former President Donald Trump now that it appears the Senate is unlikely to convict him on the House impeachment article.

While a majority of the Senate voted this week to proceed with a trial, the 55-45 vote was well short of the two-thirds that would be required to convict. That prompted Sens. Tim Kaine, D-Va., and Susan Collins, R-Maine, to propose a vote to censure the former president as an alternative punishment.

Kaine said adoption of the censure resolution could prevent Trump from holding future office, but legal scholars aren't so sure.

A censure by either or both houses of Congress has no force of law if the person being censured is not a member of Congress. The Constitution explicitly gives Congress authority only to punish its own members, except for the power of impeachment. A vote to censure someone in the executive or legislative branch, therefore, would express only the nonbinding "sense of" Congress.

The notion that a censure could block Trump from holding future federal office is based on how Kaine and his supporters are reading Section 3 of the 14th Amendment, which says: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same."

Strange as it may seem, said professor Steve Vladeck of the University of Texas School of Law in Austin, there is a continuing legal question about whether the president is, in fact, "an officer of the United States." That phrase appears often in the law, but the courts have yet to nail down the meaning when it comes to the person at the top of the executive branch.

Assuming the phrase does apply to the president, if the Senate passed a censure resolution declaring that Trump engaged in insurrection, that might trigger a state to block him from the ballot if he decided to run in 2024. Trump could then sue, and the courts would have to decide the issue.

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Alternatively, Trump could be allowed on the ballot in a state, and an opponent could sue to get him thrown off, which would also get the issue into the courts.

Vladeck suggests that because there are so many unknowns, the most prudent course would be for both houses of Congress to approve a censure resolution, to give it extra heft.

Unlike a vote to convict Trump in an impeachment trial, a vote to censure him would require only a simple majority, which is another reason some senators might find it more likely to succeed. But for now, the Senate's majority leader, Chuck Schumer, is focused on the House impeachment article.

"There will be a trial," the New York Democrat said, "And the evidence against the former president will be presented in living color for the nation and every one of us to see once again."