President Donald Trump on Wednesday became the first president to be impeached a second time. The House voted 232 to 197 to impeach the president, with 10 Republican members joining all of the Democrats. 

President-elect Joe Biden’s inauguration is less than a week away, which doesn’t give the Senate enough time to hold a trial before Trump’s term expires. Senate Majority Leader Mitch McConnell, R-Ky., says that if a Senate trial is to take place, it will occur after Trump leaves office. 

Fred Lucas—The Daily Signal’s chief national affairs correspondent, co-host of “The Right Side of History” podcast, and author of the book “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump”—joins the show to explain what precedent exists for holding an impeachment trial after an individual has left office, and what the likely outcome of that Senate trial would be.

We also cover these stories:

  • Sen. Tom Cotton, R-Ark., says it’s not within the Senate’s purview to hold an impeachment trial after Trump leaves office. 
  • Speaker of the House Nancy Pelosi proposes a new House rule to fine members $5,000 if they don’t follow new security protocols.
  • Nike announces that it won’t donate to the campaigns of politicians who wanted to decertify the 2020 election results.

Listen to the podcast below or read the lightly edited transcript.

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Virginia Allen: I am joined by Fred Lucas, The Daily Signal’s chief national affairs correspondent, co-host of “The Right Side of History” podcast, and author of the book “Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump.” Fred, welcome to the show.

Fred Lucas: Yeah, thanks for having me on.

Allen: Well, Fred, you may need to write another book because your first one, “Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump,” of course, does not cover Year 4 in the president’s second impeachment, but we’re going to chat a little bit more about that later.

First, you covered the debate on the House floor Wednesday that led to the House voting to impeach President Trump. What stood out to you about what was said by members as they debated whether or not to impeach the president for a second time?

Lucas: Well, I thought about how, in some ways, different it was from the previous impeachment, in the sense of the debate started, roughly, I would say, about the same time in the a.m., but they had it wrapped up around five, 5:30 for the second impeachment.

The other [dragged] well into the night, into the evening, 10 or 11 o’clock p.m. And part of that was like every member waned to speak. I think maybe fewer Republicans wanted to step up this time, particularly. Also, because of COVID, a lot of members were voting by proxy. There was that aspect.

And of course, this one was, whether you agree or disagree with this one or the last one, the last one was entirely partisan, almost, except for a few Democrats that voted against impeaching Trump the first time. This time it was Republicans that crossed over. Ten Republicans crossed over and joined Democrats to vote for impeachment.

Allen: Well, Rep. Liz Cheney, Republican of Wyoming, she was one of those 10 GOP members to vote for impeaching the president. And Cheney is the chair of the House Republican Conference, she’s the third-ranking Republican in the House of Representatives.

Lucas: For now.

Allen: Yeah, for now. So what do you make of her decision and those other nine GOP members’ decision to vote for impeachment?

Lucas: Well, some of the members stated that they felt like it was, which I thought was interesting, sort of a separation of powers argument, and that the attack on Congress was in some way inspired by Trump. And they felt like it was an attack from one branch of government onto another, that they were defending the legislative branch. That’s an interesting argument.

I think in some ways, it has an entirely political argument, but I think in some ways, it has more stability than trying to blame Trump for criminal incitement, which, if you look at the federal statute for criminal incitement, it would really not apply to this. For one, it requires intent.

Trump did say in his remarks that you’re going to march over to the Capitol to peacefully and patriotically make your voice heard. However, later on, he did say, “Fraud breaks up everything. Doesn’t it? When you catch somebody in a fraud, you’re allowed to go by different rules.” Possibly, some people took “by different rules” to mean something entirely different.

But the fact that he did use the term “peaceful protest” during that would make it a hard case, criminally, to prosecute.

Another point is that there’s something called the Brandenburg Test, which the Supreme Court established, that determines when speech crosses a line to inciting violence, and whether violence occurred because of the speech, or whether it’s speech happened and then violence occurred later on, whether there was necessarily a causation effect.

And in most cases, the Supreme Court has held that that’s a pretty strict high bar to meet. And in this case, it doesn’t seem like Trump would have met that bar, legally. But, of course, there is a different standard of proof for impeachment than there is in a court of law.

Allen: Yeah. Could you explain that a little bit? Because I was reading one of your pieces earlier that mentioned that difference, and it’s fascinating to me that there is a distinct difference between the two.

Lucas: Well, yeah. And I get into this quite a bit in my book “Abuse of Power.” And one point I make, in Chapter One, actually, is that, generally speaking, an impeachment should be reserved, certainly impeachment of a duly elected president, should be reserved for actually breaking a law.

In lieu of actually breaking a law, it should be something that would threaten the country in some way. That is where it becomes maybe a judgment call. Law is black and white, whereas something that threatens the country, that could be a judgment call.

The previous impeachment, of course, was these two very vague charges, because they couldn’t really define what Trump did wrong with that Ukraine call. They thought it was bad, but they didn’t know bad in what way or really defined. So they said, “We’re going to impeach him for abuse of power, and then … impeach him for obstruction of Congress.”

This time, they did cite a what would have been a federal statute or a violation of the law, and they impeached him the second time around for incitement of an insurrection.

Allen: Personally, I was really impressed by House Minority Leader Kevin McCarthy’s speech that he gave on the House floor, as he talked about [how] we do need to hold the president accountable for what he said and that he should take ownership for the amount that he was responsible for what happened on Wednesday.

But he also really spoke to the fact that impeachment will only lead to more separation in our nation. And when we’re talking about unity, impeachment will not bring us that, that it will only cause more division. So let’s take a listen to just a portion of his remarks.

Kevin McCarthy: But here is what a vote to impeach would do. A vote to impeach would further divide this nation. A vote to impeach will further fan the flames of partisan division. Most Americans want neither inaction nor retribution. They want durable, bipartisan justice. That path is still available, but is not the path we’re on today.

Allen: So, Fred, what do you think about McCarthy’s remarks calling on his colleagues to choose bipartisanship and unity, really, for the sake of the country?

Lucas: Well, there definitely could have been unity in this, that if they put a center measure on the floor, it would’ve gotten probably overwhelming bipartisan support. If not overwhelming, it would have gotten probably three or four times as many Republicans voting for it. And it would have been sort of this condemnation of Trump for the speech given.

Whether someone agrees with that or not, that would have been a strong statement, and it would have foregone the loaded impeachment word, I think.

And this is something that’s reported on in “Abuse of Power,” which is, after Trump’s acquittal, [House Speaker] Nancy Pelosi sort of comforted herself with the acquittal, saying that whether he’s got an acquittal or not, he’s always going to have the scar of impeachment hanging over his head, historically.

And I think we probably saw a little bit of that this time. Pelosi and a lot of members of her caucus had just had this somewhat hair on fire, irrational hatred for Trump before this, throughout the four years, really, really wanted to impeach him again and really wanted to give him that, as Pelosi called, a scar in history. And now he is the first president to ever be impeached twice.

Allen: Yeah. What do you make of the media’s coverage of this second impeachment?

Lucas: Oh, well, it’s probably somewhat similar to the first, and sort of a cheerleading fashion. Another argument wasn’t really entertained in the midst of all this, I don’t think, and in most media coverage.

Allen: So let’s talk a little bit about what happens next. As a country, obviously, we’re in a major season of transition. Trump is leaving office in less than a week, and on Jan. 20, … President-elect Joe Biden will be sworn in.

So with Trump leaving office, where does that leave things, as far as the Senate holding impeachment hearings? Because we know that Senate Majority Leader Mitch McConnell, Republican of Kentucky, he’s already said that the Senate hearing, if they choose to have it, wouldn’t begin until after Joe Biden is inaugurated president.

But I guess I’m wondering, what exactly then would the point be of holding that impeachment hearing, when President Trump has already left office and is no longer in power?

Lucas: … That’s the best question about why they had the speaker. The purpose of impeachment is to remove a public official from office. So that’s why this one was so odd to begin with, other than the fact that, as I said, Pelosi and Democrats and enough Republicans wanted to kind of tarnish him and sully him to the point of being a pariah on the way out of office.

But that said, there are things that the Senate can do in the course of a trial. The Senate, and they could have also done this in the previous trial, had they found him guilty, the Senate can, once they remove a public official, they can then vote in a separate vote to disqualify that public official from ever holding a federal office again.

They can further vote to revoke that federal official’s pension. They could prevent him from having Secret Service protection down the road, as most former presidents do. And given the animosity some people have out there toward Trump, that might be a fairly serious aspect, Secret Service protection for him.

As far as his pension, I don’t think he really needs a pension. But there would be maybe a purpose for a Senate trial.

The big one would be preventing him from holding federal office again. Because a lot of people believe he wants to run for president again in 2024, there might be even some incentive among a few Senate Republicans that are also eyeing a 2024 campaign. Whether they would go out on the limb and actually vote for conviction in this case—because that could also hurt them politically in seeking the nomination.

But that is something to look at, particularly since Mitch McConnell has said he doesn’t know whether he would vote to convict.

An important aspect here, though, as far as those other forms of punishment, [is] that you would still need two-thirds of the Senate, 67 senators. That would mean … 17 Republicans would have to cross over. Last time was 20. Now it’s 17. It would be the magic number.

I guess that’s not impossible, if, in theory, Mitch McConnell were to vote for conviction. He might have enough clout to pull … but it seems unlikely. I can think of maybe a handful. Certainly Mitt Romney would be ready to, at any point. But I can think of maybe a handful of people like Susan Collins or Lisa Murkowski might also vote for conviction to prevent him from running.

It is difficult right now to see how it gets to 17 Republicans. But the trial might not happen for several months.

And I would raise this, just politically speaking for Democrats, they may hit a point in April or May where Joe Biden’s not having a real great time at pulling everything together with COVID relief, so forth, then the economy and so forth, they might want a good distraction. And it might benefit Democrats in the Senate to make the conversation about Trump again.

Chuck Schumer will be the Senate majority leader at the time. He’ll be setting most of the rules for the trial and so forth.

So I think that’s something to consider, maybe that would be advantageous for Democrats, to drag out a Trump trial. And that said, knowing Trump as we do, he might even enjoy the chance to put on a big show and come in and testify for this trial. We never know.

Allen: How do you think the American public would respond to that? Because I feel like at that point, Trump will have been out of office for several months, and for the past four years as a country, we’ve had to stomach the media just constantly berating Trump. And I feel like it would be a little bit of a whiplash to go back to that place.

Lucas: Yeah, yeah. I think the average person in the public will say, “What’s the point of this?” Democrats wouldn’t see the political advantage with the average person, they would see the advantage from maybe the hardcore base of their party that really, really, really wants to punish Trump, and also maybe a way of gaining donations, getting the donor base fired up.

That’s where I would anticipate that maybe the [Democratic National Committee] would think an impeachment trial would be a bonanza, because getting that Trump emotion, bringing that back into the Democratic fold, would probably, in some way, help them politically.

Allen: How do you think that would impact Biden’s presidency though?

Lucas: Yeah, this is the point. Biden could’ve probably shown a lot of presidential leadership before this happened, and he could have probably just spoken publicly against this and say, “There’s no point in doing this, there’s no point in going forward.” And it could have gone a long way toward his reputation of trying to be this healer and unity, but we didn’t see that.

It is important to know that this would not be the only time it’s ever happened, that a public official was out of office and a trial proceeded.

Allen: Oh, really? So when else has that happened?

Lucas: Yeah, in 1876, President [Ulysses S.] Grant’s war secretary, today it’s called defense secretary, William Belknap, was caught up in a corruption scandal. The House was about to impeach him. He actually resigned just a few minutes before they were about to take that vote, and the House voted to impeach him anyway, even though he had resigned.

And at that point, it went to the Senate, they decided to still have a trial, and back to what we were talking about, which would sort of revoke his pension and so forth.

So, yeah, it wasn’t a president, it wasn’t an elected official, but it was a Cabinet official. So that sort of sets this historical precedent that it has happened, and that’s something that maybe Democrats can look to to justify this.

Allen: And if you think that the Senate will hold their hearing, what is your prediction for the outcome of that hearing?

Lucas: I don’t see how you reach 17 Republicans to vote to convict here at this point. You might have potentially five or six, maybe even 10, like you did in the House, but I doubt there’s going to be that many. It’s hard to see at this point.

And unless between now and the time of the trial Democrats or Biden’s Justice Department is able to come up with some kind of smoking gun evidence that there was collusion between Trump and the rioters—there’s that word, collusion, again—I don’t foresee that happening. But that’s, in theory, I think maybe the only thing that would move the Senate to reach 67 votes.

Allen: Yeah. So, Fred, apart from this being the first time in history that a president has been impeached twice, what else is making this current situation really unique or historic, as far as when we compare it with past impeachments?

Lucas: Well, so far we’ve been talking about the big one, the Senate trial, which I think they are bound to have something, may or may not be a very abbreviated trial. They may gavel in, they could even have a motion to dismiss and then vote out. The fact that [it has] happened afterward. Maybe the fact that there was some bipartisanship.

There was bipartisanship during Watergate as well. And that would have been an impeachment had [President Richard] Nixon not resigned ahead of time.

I think, certainly, it’s historic in the fact that it came after an election, that it came literally seven days before a president’s term expired. I think people are going to look back in history on this one and just say, “Why?” They’re going to scratch their heads.

Arguably, and just based on the numbers, you could maybe make the case that there was a stronger case for this than the last impeachment. I think the last impeachment over the Ukraine phone call that I write about in “Abuse of Power” was just fairly silly, and it’s going to be viewed as that in history.

This one might be, just because of the trauma the country experienced from the attack on the Capitol, they’re looking for someone to blame, and enough people blame the president. So I think in that sense, maybe this one will be viewed with somewhat more credibility, even though I think it’s probably a bit of a stretch to lay all the blame on the president.

But another important point here though, and this is something that’s really laid out throughout my book “Abuse of Power,” and that is that basically the move to impeach Trump began the Wednesday after the 2016 election.

There was a website that launched about impeaching Trump. There was a Washington Post story about it that launched on Jan. 20 of 2017, that’s the day he was inaugurated. So immediately upon his election and his inauguration, the movement to impeach began.

You had Democratic lawmakers [that] began talking about impeaching Trump. They managed an impeachment midway through the first term, and managed through an election year impeachment trial.

So given their commitment to getting an impeachment, it almost seems maybe not so surprising that they would impeach him seven days before leaving office, just for good measure.

I would bring up, also mentioned in “Abuse of Power,” is that, … actually, Congressman Al Green pushed a vote on the floor of the House for three different impeachment resolutions against Trump. The first three were rejected.

So this was actually the fifth time there was an impeachment vote against Trump, in some form or another, on the House floor.

So this has been sort of an obsession from the moment Trump got elected until his term expired. So in that sense, I think it’s historical to the point of which one party would doggedly chase another president. Hopefully, we don’t continue to see that, and hopefully, it doesn’t normalize impeachment too much.

Allen: Yeah. I certainly hope not. Well, Fred, before we let you go, you’ve mentioned your book, I mentioned it at the top of the show, “Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump.” So that published in the summer of 2020. But, Fred, are you going to write another? Can we expect a sequel now?

Lucas: Well, we’ll see. At this point, I’m afraid they’ll launch another impeachment before I get the other one done.

Allen: You might need to wait a minute.

Lucas: Yeah. They may determine, “Hey, there is precedent for actually impeaching someone in the House after they’re out of office.” So they’ll have the precedence. “So let’s go after him again.”

Allen: Have to wait and see. Well, for all of our listeners, you can follow Fred’s work at The Daily Signal or by following him on Twitter, @FredLucasWH, that stands for White House. Fred, thank you so much for joining us.

Lucas: Yeah, thanks for having me on.