Even before President Donald Trump nominated Amy Coney Barrett to serve on the U.S. Supreme Court, numerous Democrats and liberal activist groups had floated the idea of another impeachment as a possible means to stall the Senate’s confirmation of a new justice for the high court.
As I note in my book, “Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump,” the previous impeachment push also seemed improbable and something House Democratic leadership wasn’t on board with — until they were.
Impeachment 2.0 would mean either re-impeaching Trump or bringing impeachment charges against Attorney General William Barr, according to reports. The endgame of course would not be removal of either — but rather stalling a confirmation.
To be sure, another impeachment is still unlikely. But it’s not as improbable as you might think. Here are five reasons you might see Democrats pull the trigger again.
No. 1: The Senate is obliged to start a trial, which could delay the SCOTUS confirmation
The point of an impeachment now would be to force a Senate trial in order to gum up the works and at least delay the Barrett confirmation process. If the confirmation process extends past Election Day and Joe Biden wins the election (and Democrats even perhaps win a majority in the Senate), a vote for Barrett becomes politically more difficult to hold, even for a lame-duck Republican majority.
If the House passed an impeachment — no matter how meritless — under the “Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials,” the Senate would be required to begin the trial by 1 p.m. on the day following the day that the House sends its impeachment “managers” to the Senate to present the articles of impeachment.
The rules also state the Senate shall “continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered.” Moreover, all other “legislative and executive business” before the Senate is suspended during the conduct of the trial. Other business would include confirmations — even for a Supreme Court justice.
Of course, Senate Republicans could choose to make it a one- or two-day trial. But that would still delay things for the high court confirmation.
No. 2: Numbers would be there
Democratic leaders worked hard to whip their troops into line for the impeachment vote against Trump held in December. Sources interviewed in “Abuse of Power” said that as many as 10 to 15 moderate Democrats might have defected if the majority followed the original plan of an impeachment vote in October or November. That would have been an embarrassment for Democrats — but the bottom line is that the House majority would still have had the numbers.
If Democrats tried again to impeach — this time for the sole purpose of obstructing a Supreme Court confirmation — they would inevitably have a divided caucus. But there is almost nothing Democratic politicians and progressive activists take more seriously than stopping a Trump Supreme Court pick. Even if there are significantly more Democrats defecting than before, the majority party likely has the votes.
No. 3: Pelosi already caved once on impeachment
After suggesting she was open to re-impeaching President Donald Trump as an “arrow in our quiver” during an interview on ABC News, House Speaker Nancy Pelosi backtracked with familiar words.
“I don’t think he’s worth the trouble at this point,” she told reporters.
Some of us are old enough to remember that in March 2019, Pelosi asserted: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country, and he’s just not worth it.”
That, incidentally, was before special counsel Robert Mueller’s report that cleared Trump of conspiracy with Russians. But Pelosi didn’t know at the time what the Mueller report would say. So it was rather astonishing that by September of the same year, she was gung-ho for impeachment over an improper phone call. The difference came when the far-left base — led by “The Squad” — as well as activist groups finally got to her. She lost control of her caucus and knew she had to move forward on impeachment for something — anything — to maintain her leadership.
Already, Rep. Alexandria Ocasio-Cortez (D-N.Y.), who played an outsized role in pressuring Pelosi to move left, declared “all of the tools available to our disposal … all of these options should be entertained and on the table.”
No. 4: House impeachment manager on board
Moreover, one of the House impeachment managers is even on board with impeachment — and court-packing, for that matter. This could give the issue a little more gravity among Democrats.
During an interview on PBS, Rep. Val Demings (D-Fla.) one of the impeachment managers who also previously served as the Orlando police chief, seemed ready to go all in.
“The ability to move forward with whatever strategy, whether that’s impeachment, whether it’s after Vice President [Joe] Biden and Senator [Kamala] Harris win, they look at expanding the number of justices on the court, those are decisions that will be made by leadership,” Demings said.
No. 5: Who needs a crime?
The Constitution is indeed broad about the House’s power to impeach. Treason and bribery are clear enough, but the phrase “high crimes and misdemeanors” leaves plenty to the imagination. Still, by tradition, both Andrew Johnson and Bill Clinton were impeached for alleged violations of the law. Richard Nixon would have been impeached for alleged violations of the law. Further, all eight federal judges removed by the Senate were impeached by the House for alleged violations of the law.
Using the tool of impeachment to stall a judicial confirmation in the Senate would be unprecedented. However, the 2019 Trump impeachment already burst through the long-established tradition of impeachment only for a defined statutory violation of the law.
Recall, Democrats pushing Trump’s impeachment over the Ukraine phone call first tried to sell it as a “quid pro quo” until focus groups were unimpressed. So Democrats tried for a time to push bribery or extortion — both were tough sells. Finally, House Democrats settled on “abuse of power” and “obstruction of Congress,” neither of which are crimes but sound really bad. The charges were broad enough not to have to define but easy enough to understand.
If Democrats impeached Trump — or someone else — the charge wouldn’t be for nominating a Supreme Court justice. They would find another reason, legal or not. The precedent was already set in the House that a violation of the law isn’t required to impeach someone.