On impeachment, Part Five, Mike Pence

This is the last in my series of posts called “On Impeachment.” Part One is here. Part Two, which set forth some presumptions about impeaching a president, is here. Part Three is here. It discussed the free speech problem with impeaching President Trump for stating his view about the election. Part Four considered the merits of impeaching Trump for what he urged protesters to do.

In this post, I want to discuss a possible basis for impeaching Trump that is not included in the House’s Article of Impeachment, namely what Trump urged Mike Pence to do.

As Congress prepared to certify the result of the election, Trump tweeted this:

States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!

Later Trump stated that if the vice president “comes through for us, we will win the Presidency.”

Pence declined Trump’s invitation to exercise a power the Constitution does not give him. He explained his decision in a January 6 letter.

Trump’s statement that Pence should “send [the votes] back to the states” strikes me as highly problematic. Asking a vice president to disregard his constitutional duty can be deemed to meet the high crimes and misdemeanor standard of the Constitution.

Had Pence followed through with the course of action Trump charted, I think the case for impeachment would be clear. So too, if Trump’s statement had been a formal order.

But Pence didn’t do what Trump said he should, and Trump’s tweet was not an order. Thus, as so often was the case with Trump, he seems to have straddled the line. Whether he crossed it is subject to debate.

However, the House, in its rush to impeach Trump, did not mention the statements regarding Mike Pence. Nor do I think the statements were insurrectionary, the rubric of the Article.

Thus, I don’t think the Senate can or should convict Trump based on the Article before it, even assuming for the purposes of argument that the Senate has the power to convict an ex-president.

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