the impeachment part was easy. but now what? i'm michael smerconish. donald trump is now the only american president to have been impeached twice. but like johnson and clinton, he will not be removed from office. there is not enough time for a senate trial, at least not a fair one. is what is next? it is complicated. the senate will come back into senate on tuesday the day before the inauguration. therefore the most significant punishment for trump, his removal from office, is off the table. but he still could be precludesed from running again. article one section three of the

constitution says judgments in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy office. and so that requires a separate vote. two-thirds is needed for conviction. 67 is the magic number requiring 17 republicans. but only a simple majority is needed for the second vote of a ban from running in the future. there is no precedent for presidents being disqualified. but there have been other government officials hit with that double whammy. we are headed into unchartered waters in many areas. the biggest question is whether a former president can be tried by the senate after being impeached. legal scholars have reached different conclusions. and it is written the original

understanding and congressional practice bolsters the case for concluding that the end of donald trump's presidency would not end his senate the trial. but ross garber who has represented governors facing impeachment says if the framframers had end impeachment, they would have said so. and who presides of the trial? article one section three says when the president of the united states is tried, the chief justice shall preside. but trump won't be the president. so john roberts' roll is unclear. does it mean that the president of the senate, vice president kamala harris, will pleareside? we don't know. another consideration, the impact on the new president, joe biden is eager to get to work next wednesday. and he needs his cabinet members

to be confirmed as soon as possible. but under senate rules, po impeachment is the only issue the senate can consider once the trial begins and that is why wednesday the president-elect tweeted in part i hope that they will deal with constitutional responses while also working on the other urgent business of the nation. so nothing in the constitution requires the house to transmit to the senate its articles of impeachment. speaker pelosi can hold them indefinitely. and assuming the house does deliver the articles, it is not clear that the senate must act on them. again, not spelled out in the constitution. bob bower served as white house do yo counsel to president obama and he said it is a lindsey graham cal con logical trukts that if theism peoples the senate would try the case. but he also said that the

constitution does not direct the senate to try an impeachment. the house may choose to impeach or not. and one can imagine an argument that the senate is just as free in the exercise of its own sole power. so where does it leave us? first, if and when there is a trial conviction in the senate will not be easy. remember, in the last senate impeachment trial, there were two counts. one was for abuse of power, the vote 52-48 for acquittal. only mitt romney broke ranks. the second charge was for obstruction of congress and the vote for being a quit it the was 53-47, no gop senator supported it. so all ireyes on romney, murkowi and collins. but if mcconnell votes to

convict, he could be a sixth and he could cause more to do so, but that is still not 17 and it assumes getting and i will 50 democrats to tow the line. if it appears unlikely that the democrats can line until votes for conviction, is it still worth trying trump? well, yes, if you believe as the house voted that donald trump incited insurrection, the epitome of a high crime which also warrants disqualification from running again. by this logic, he must be tried even if he is not convicted. plus, a trial in this case could be not only an opportunity to bury the lie that the election was stolen, but also an opportunity to produce evidence of the impact of the president's words and actions on those who were lawless at the capitol. if we don't move forward with a senate trial, it suggests that the house impeachment process was all just noise and we

abandon the ten republicans willing to break ranks. and what message is sent? if you do it in your final few about weeks, hey, we'll let you slide. if trump is not tried and convicted, it raises another possibility. that this human phoenix think grab 'em by the pain, again, rises from the ashes. what if he comes back, wins the nomination and is again elected president? if that happen, many will ask why the senate didn't convict with and disqualify him when it had the chance. does that sound farfetched? maybe not. a brand new axios poll found that big majorities of republicans still think that trump was right to challenge the election loss and don't blame him for the capitol mob and still want him to be the 2024 nominee. a radio listener of mine anthony in san francisco suggested that

it should be the republicans who hope for conviction. he argued that trump is now an albatross, damaged political goods who can't win against but inside he is disqualified will shadow the gop this both the mid terms and presidential. and maybe that is why mcconnell is signaling that he is personally open to the idea of conviction. so what is the best path forward? from the "wall street journal" democrats are nowtriumphant in washington. they can take the high road and get on with their agenda. mr. biden could even take credit for suggesting it and his approval rating would soar, the shame is the democrats seem so be ob obsessed with they are the one this is w.h.o.ho can't let them. and then in the l.a. times,

mcconnell said that he hasn't decided how he would vote at an impeachment trial following a report that he was pleased that the house was moving towards impeachment. there is no task more pressing for the senate at the moment than to hold trump accountable for the damage inflicted last week and mcconnell should do his part to ensure that the trial begins as soon as possible. but if that reckoning must wait until after trump leaves office, so be it. well, that is the right call. it is not fair for president-elect joe biden that even as he moves in to the white house donald trump will stirl be still be a focal point. however we have a process. the best course of action is that the process be followed. we can't cure disease by pretending that it doesn't exist. and so here is today's survey question at smerconish.com.

is the impeachment trial worth it even if it appears unlikely that 17 republicans will vote to convict? from facebook, some of your thoughts and tweets and comments as they come in. if there is a trial, he will be on the tv and the front pages every day exactly what he wants. well, harvey, that is true. but it depends how it ends, right? what if it ends with conviction and disequal fir indication? a and isn't theresomething to be gained from the sunlight to bury the lie? once and for all that the lakes was stolen through a presentation of evidence and then to address the issue of whether the president's words, deeds, actions incited that insurrection. one more from facebook. if trump could run again and win, the issue is not trump. well, pat, a point that i often

make on my radio program. you know, i try and disabuse individuals of the notion that when he leaves office next wednesday, we've necessarily turned a page because the forces that put him there and the grievances held by 75 million americans will still be with us. and that -- they need to be addressed. up ahead, what will the senate do? so happy that senator amy klobuchar is here.

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the house expected to send the senate the article of impeachment but unclear how they will written with it. and conviction would require he have senate democrat and at least 17 republicans in order for conviction. and so what are the odds of that happening? joining me now to discuss, democratic senate amy klobuchar. thank you so much for being here. i'm curious whether you apply game theory as i have been trying to do to the uncertainty of what is to come, or is your p perspective is that we need to

move forward with the trial. >> it is really number two, but you can't be strategic and looking at what is best for the american people in how you proceed. i think that we have to go through the trial. as you pointed out, this is a situation where you've got a president that incited a riot, you cannot sweep it under the rug. and guess what, you can do three things at once. and let me explain what is going on right now which you know. americans all over are juggling things. they are juggling their needs on laptops, they are juggling their jobs and trying to figure out their health care, they are juggling how to pay for prescription jobs and filling their refringe ratge rate tore. so there is no reason to abide by archaic old ways. can we get an agreement to either do the trial on weekends, in the afternoon, and con duskts

t conduct the hearing to get biden's agenda through. there is a lot of negotiation behind the scenes. and it didit does require an agt and i have no reason to believe that we can't get it done. we must do all at once. >> how optimistic are you -- sorry that we have a bit of a sound issue and we'll try to work through but how optimistic are you that you can get to 17 assuming all democrats remain in line? >> well, i am very -- i don't know. i'll be honest with that. itch talked to some of my colleagues of course the night of the insurrection and at that point only 6% republicans were voting for donald trump or 6% of

all the senators. we had a 93 vote margin against the people that were trying to up end the election. and that is a really good number compared to where the house was and that might put us in a much better position. >> do you worry -- one final question on this process and then i want to talk about the inauguration. do you worry if it ends in acquittal he becomes a martin and as i said he has been counted out so many times before, but the early polling suggests thats are sticking with him? >> i don't think that we have a choice to go through this or not. and not only that, as you point out, once we get the conviction that he can be banned from running from office again. it is the principle of america that we'll be celebrates by the wayity inauguration that in america, the law is king. we must go through this. i'm hoping given that they

personally person experienced the horror that we will pick up more votes than you think. and you can see that have a number of regrets for their involvement in this in any way. even though he ended up voting on our side to uphold the election. >> so here is what i would like to do. you're so important to us and the inauguration is so important to all of us. i want to take a break, try to resolve an audio issue and hopefully come back with senator klobuchar right after this. my cat really needs me right now. y'know, i'm trying to be less popular these days. now? i use differin gel. take the 90-day challenge now and you'll get consistently clear skin too. do things differin. let's get checked for a full range of conditions. let's get fast, accurate results. and you'll get consistently clear skin too. introducing letsgetchecked health testing you do at home. know your health. know yourself. order now at letsgetchecked dot com use a single hr software? nope.

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back with democratic senator a a klobuchar. sorry for the audio issues. talk to us about how wednesday will look and feel different.

>> sure. this is an inauguration that has been planned of course in the middle of a horrific pandemic. it has been planned two weeks after an insurrection in the capitol, an attack on the very building that we will be standing in front of. and it is in the wake of an impeachment hearing. so i didn't really sign up for that portfolio, nor did senator blunt. but this will be a dignified beautiful ceremony that joe biden and kamala harris deserve. we cannot let the thugs and the insurrectionists and angry mob bring us down. that is why you are seeing more security with significant national guard. and for those concerned, i'll tell you this, this event has always been planned and the securities is in the care of the secret service. it is always that way. we've had inaugurations like

president trump's first inauguration which there were security concerns, but we also had millions of people. that won't happen here because we made the hard decision as did the president-elect that we would have a very small crowd to reduce any kind of risk of a superspreader event, any kind of risk of problems with the coronavirus. and that is why there is going to being less of those issues and of course much more emphasis when it comes to the perimeter and the guard and what they are doing. so in that way, it will give them the ability to make them a safe event and they have told us that. >> were you already a united states senator at the time that you attended your first inauguration? >> no, i went for the bill clinton inauguration way back in 1993 it would have been. and so i have very fond memories, it was cold, i was sitting out with my husband and, yeah, we were able to go and

watch it and of course they had the ball youss and parade. and all of that will be done virtually. and i do hope that your viewers will spend part of their day and evening watching this because the biden people have done everything to make this special for the american people. and the theemg me is about a determined democracy. and we picked the theme actually before all of this happened of course. and it is even more meaningful now. and you think about that we'll be in front of that dome where abraham lincoln when he gave his inaugural address, the doem wasn't even completed. and people would say, hey, why are you spending money in the middle of a civil war on this capitol dome. and he basically said as long as the capitol keeps going up, people will have faith. i'm paraphrasing this. that the union will go on. and so i think about that

symbolism, how important it will be that day on january 20th when they take the oath. >> i'm angry about what happened. and i'm also saddened. i'm not surprised that you've been there before. my own short story is that i guess it was january of '81, i had tickets to go to the reagan inauguration. kind of funny, because they said standing room only. i didn't know that meant you could stand near the monument, that is how far you would be. but i went with my dad. and through happen stance, we ended up on the east side of the capitol after the inaugural and here came the entire cabinet and the new president and we were within, you know, a baseball throw. and i think about those sort of innocent happenstance moments. that now seem lost. like nobody will have the opportunity to get up close and personal, it just breaks my heart. you get the final word. >> okay, but i want to remind

you and everyone watching here that that is happening to everyone in america, whether it is a funeral that people can't have anymore or go to and see their loved ones, a wedding, all of this, we've had to adjust. and what i love about this moment is it will be so somber, but also such a celebration because the light at the end of the tunnel, having a competent administration that will come in where com palgs,passioncompassi vaccine out there, get us through the pandemic, and also salvaging our very democracy. so i want people to think of it in that spirit. it is an amazing moment and we'll have every congressional leader, democrat, republican, sitting up on that platform. i know that. behind the president elect, making clear that they support this democracy. and this transition of power that we've seen for 232 years of democracies. that is why it is so important. >> okay.

i accept everything you just said. it was beautifully said. thank you, senator, really appreciate it. sorry we had an audio snaf you few. but come back. >> i will be back. thank you, michael. i want to remind everybody, go to smerconish.com, answer the survey question. you certainly know senator klobuchar's answer. is the impeachment trial worth is in up ahead, the pentagon has authorized 25,000 members of the nauf inauguration is what is the nature of the threat? and can you be fired after you left your job or rather tried for impeachment after leaving office? constitutional law experts can't seem to agree, i'll have two of them make their case in a moment.

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always go for 100. bring out the bold™ the house iimhouse impeached trump. and the situation raises an interesting question, can the senate constitutionally try a former president? i have guests to argue both sides. for the against, that would be ross garber who has represented four u.s. governors facing impeachment, he teaches at tulane law school. the for side, lawrence tribe from harvard law school who advise the house democrats on president trump's impeechlt problem. and he wrote an op-ed saying that the senate can constitutionally hold and

impeachment trial after trump leaves office. professor, the plain language seems to speak of those who are in office. for example, and i'll put it on the screen, article 2 section 4, the president, have not and all civil officers of the united states shall be removed from office, et cetera, et cetera. judgment in cases of shall extend further than to removal of office. if they meant after you've left office, why wouldn't they have said so? >> article one section 3 makes it clear that there are spree separate things. there is conviction, removal, which is off the table when you are no lockernger there, and th is disqualification. the reason they didn't say more than that, when they were writing the language, the main about xh aexample they had was impeach of a foreigner governor

of india, warren hastings. he was no longer this office when he was impeached about no problem. if they had thought that there was a requirement that you be removable in order to be prevented from, again, doing harm, they would ahave said so. besides, we've had a history including the famous impeachment of a very corrupt secretary of war in 1876. he saw the handwriting on the wall. knew he was about to impeached. he thought he could get away with everything by resigning. and they said thank, but we'll go ahead anyway. and the senate voted by 37-29 that they had jurisdiction to conduct an impeachment trial. so in my view, although i

respect profession offerr garbe think that he is creating an obstacle where there isn't one in the language. and if there were the framers would have been crazy because they would have given a clear get out of jail free card, get out of future trouble free card to any president who just you decided to resign before he was convicted. >> professor gasrber, your response. >> yeah, so that is a very creative argument. a couple things. one in the bellnap case, the secretary was actually acquitted and they said that the reason was that they didn't believe that they had jurisdiction because he was no longer in office. but the professor breezes past the words of the actual constitution and also the history of impeachments. so i just want to focus on the

words of the constitution. article 2, section 4 as you noted, michael, at the top of the show says the president, vice president and all civil officers of the united states shall be removed from office. the president, vice president, and all civil officers, excuse me. as of noon on wednesday, we will have one president. the president will be joe biden. donald trump will not be the president. and that phrase the president is used a lot in the constitution. it says the presidential be the commander in chief of the armed forces before as of noon on wednesday, donald trump will not be the president, will not be the commander in chief. and then there is that phrase shall be removed. if he is not president, he can't be removed. so that principle doesn't apply. and with respect to the english example, there is a lot about the american example that is different from the british

prec precedence. in england, you can be executed in connection with an impeachment proceeding. in erkamerica, you can't. the worst that they can do to you is removal and disqualification from office. and one final thing, in our entire history, we have never done what professor tribe suggests. we have never actually convicted a former public official and barred them from office. never happened before. >> professor, go ahead. >> i don't find anything per swas saved in that with all respect. article two does say that you can't remove someone if they are not an officer. we won't try to remove him, thank goodness he will have been removed by the operation of the very election that he tried to undo not only by twisting raffensperger arm but by

orchestrating a deadly insurrection. my point is the other part of the language, article one, section three, which makes it clear that removal isn't the only thing on the table. dsz qualdisqualifying from the future office is the whole point, it is protection from the country from someone who is too danger trous govern. a dangerous goofrn. white they had a king which we don't and excited people which we said we wouldn't do as a punishment, that has absolutely nothing to do with it. and it is true that in the bellnap case some who voted to acquit disagreed about the jurisdiction. i imagine that some of those who vote to acquit donald trump will use the excuse they don't think that the senate should be having the trial at all. but it will have a trial because it has jurisdiction, the history shows it, the language shows it and more important, the system

wouldn't work if you could avoid a trial and possible consequences of a trial just by resigning your office. it wouldn't work. >> i want to pick up on that, professor, if i may. put on the screen what professor tribe wrote on exactly that point in the "washington post." and mr. garber can respond. so doesn't he have a good point? >> well, when we say -- when he says it is unworkable, for 230 years, that is how it has been. we've never actually deployed the constitution the way that professor tribe suggests. and moreover, i think that it is actually -- it creates the right incentive.

what we want to do is not provide an incentive to a corrupt public official to hang on, to stay in office, to fight, fight, fight, fight. what we want to is provide incentive for corrupt public official to resign. and so, you know, applying this way would create a perverse incentive. and the framers of the constitution actually spent a long time thinking about and drafting this constitutional provision about who actually is subject to impeachment. and they defined it as the president. notably there were states at the time and frarmers knew this tha extended impeachment beyond an official's term in office. the framers decided not to include that kind of language. which other states explicitly had. >> understand understood. professor tribe, you get 20 seconds and we're done. go. >> the reason this has not happened before is because we

have never had a president so violent, so willing to yoe turn the results of a fair and free election. that is why this is unprecedented. and so that it will never happen again, we need to disqualify him. that requires holding a trial. >> but you can't change the constitution. >> thank you both. appreciate it. thank you, gentlemen. let's can check in on your tweets and facebook comments. from the world of facebook i think, even if he is convicted and can't run again, he will still have influence over his followers and therefore effect leaks of other members. he will seek revenge, they won't get rid of him. truth in that, but i think that the greater power that he would have would be the risk of him being the nominee in 2024 even if he is not successful in that campaign. i mean, just sort of as i tried to do with my game theory analysis, think about what 2022 looks like if the procspects of

dufd running again in 2024 is alive and well. he would wield influence in that scenario unlike if there were a conviction. and it is qudisqualification. i want to remind you, answers survey question. is the impeachment trial worth it even if it is unlikely that 17 republicans will vote to convict? still to come, this is our nation's capitol as thousands of national guard troops are there to protect against more violence protests. i'll ask a security analyst where are the threats coming from.

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federal law enforcement officials are warning that domestic extremists are more emboldened to carry out attacks on joe biden's upcoming inauguration. and throughout 2021 after seeing the quote/unquote success of last week's siege on the u.s. capitol. it has prompted a massive show of force in washington, d.c., jarring images of national guard troops lining tstreets, and by inauguration day, 25,000 national guard troops expected to be in washington, that is more than three times the number of u.s. troops currently serving in afghanistan, iraq and syria combined. states are also increasing security at their capitol buildings ahead of what they warned as armed protests being planned in all 50 states from today through january 20. and check out pennsylvania state capitol in harrisburg, deemed more at risk since it is one of the states where the trump

campaign contested the election results. facebook says it has seen online signals indicating the potential for more violence, one security official tells cnn the online chatter is off the charts. and ken cuccinelli acknowledges the chatter but says the threats are not specific. >> there is a good deal of online chatter, but not just about washington by the way. there is also conversations about state capitols though very radar, what is the threat on the inauguration and beyond? joining me to discuss the cnn national security analyst, author of the book "united states of jihad, who are america's homegrown terrorists

and how do we stop them photo photo. y >> you anticipated most of them. it transcends donald trump, true? >> the attack before 9/11 was carried out by timothy mcvay and it killed 168 people. again, the oklahoma city bombing i think really undercut that movement for a while but didn't go away. now it's come back with a vengeance and i think that you can almost characterize it as sort of a domestic insurgency. it's more than a couple of isolated terrorists. this is a fairly large movement. some of them are armed. we saw a number of military veterans who were at the protest and riot at congress. and so this is -- yeah, i think it's bigger than trump, it's been around longer than trump. trump has certainly amplified it and kind of given it permission,

particularly the commander in chief sort of inciting effectively this riot. but it will not just fade away. i think it has been quite undercut, hopefully, by the terrible events at the capitol. hopefully that may reduce some of its appeal. but not according to what we're hearing from law enforcement, unfortunately. >> so take me into the world of how these folks communicate, because we're all seeing in the footage this massive show of support of defense of the capitol. we all know what happened a week ago. what i'm not seeing, and maybe because it's just not in the internet space that i travel, is where exactly are the threats and what do they consist of? >> well, any kind of group that's interested in revolutionary violence is going to communicate on twitter and facebook to kind of recruit people. and then when they get serious about planning some kind of actual attack, they're going to

move to encrypted applications, like signal telegram has added 25 million new users in just three days and it has 500 million users around the world. i'm not saying all these new users are interested in violence in the united states. the point is that you can -- i went on telegram yesterday and i found ten open sort of chat rooms for people who support proud boys, including one from philadelphia. and then you can move to these peer to peer encrypted parts of telegram, which lots of people on isis did when you get into the actual planning. so i can't prove that's happening because i can't get into these encrypted platforms, obviously, but i suspect that if people are really engaging in some serious planning of malfeasance, they're doing it through these encrypted applications. >> are you more concerned, final question, of the nation's capitol or the capitols of

states? >> i am more concerned about the latter, because there's a tremendous show of force and you would have to be pretty idiotic to try to do something at the capitol with the kind of situation we have now. the mall is closed, the bridges are going to be closed,. now, the state capitols, that's a different matter. so it seems to me just based on what we're looking at that the state capitols do have a serious issue and hopefully as many of them will be defended as possible. >> peter, thank you as always, appreciate your expertise. still to come, more of your best and worst tweets and facebook comments and we'll give you the final result of the survey question. go to smerconish.com right now. is the impeachment trial worth it, even if it appears unlikely 17 republicans will vote to convict?

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time now to see how you responded to this week's survey question at smerconish.com, is the impeachment trial worth it, even if it appears unlikely that 17 republicans will vote to convict. survey says -- whoa, 91%. i call that pretty decisive and at 38,000, i think we're now over 40,000, a pretty big sample size as well. what do we have from social media this week?

if we don't have the senate trial and convict, trump was right, he got away with shooting someone on 5th avenue. remember, it's complicated. i gamed it out, senator klobuchar came on. i was curious to know from her does she employ some kind of a game theory strategy and she said we're aware of the ramifications. but no, if you believe the guy incited a riot, you've got to move forward. what else came in this week? this is from smerconish, saturday morning law class. i hope you mean that as a compliment and not as a snooze. i was so thrilled to have professors tribe and garber here to talk about the jurisdiction issue because i think that -- and tom cotton kind of tipped the hand, maybe, of the administration that that's probably going to be a large part of what's to come. not so much a causation defense, not a defense on the first amendment or propriety, certainly not of what the president had to say. but a defense that says, hey,

here we are conducting this trial and he's no longer president of the united states, and that does place us in uncharted territory. so, yeah, it was a law class today and i hope that means it was a good thing. all right, thank you so much for watching. big week coming up and i'll see you next week. good morning, everyone. i'm john berman. thank you for joining us for special live coverage. right now our nation's capitol is a city in lockdown. law enforcement preparing for unrest and security threats ahead of joe biden's inauguration. as many as 25,000 national guard troops will converge on the city. that's more than are in afghanistan, iraq and syria combined. around the country state capitols making preparations as the fbi warns there are armed protests planned in all 50 states in the coming days. it comes as we're learning about some potential intelligence and security failure