There is no doubt that Donald Trump has committed an impeachable offense.
He urged a crowd to march on the U.S. Capitol and pressure his vice president and Congress to abuse their authority and overturn the results of a free and fair election that he happened to lose.
When the rabble forced its way into the U.S. Capitol and disrupted the counting of electoral votes, the president couldn’t bring himself to forthrightly tell the rioters to stop. He didn’t release a video telling them to go home until hours later and didn’t condemn the violence until the next day, reportedly only under pressure from his aides.
Last Wednesday came in the context of the president’s lobbying to get Republican officials in states to throw the election to him (most infamously in his phone call with Georgia secretary of state Brad Raffensperger) and his ceaseless campaign of misinformation meant to delegitimize an American election.
All of this represents a serious offense against Congress in particular and our system of government in general. It is exactly the sort of gross misconduct that the impeachment clause was written to address, and it is understandable that the House is prepared to impeach the president for a second time.
And yet there are complicating factors that raise questions about the prudence of this step, most importantly timing.
We are now a week out from Joe Biden’s inauguration. Barring unanimous Senate support for returning to begin an absurdly brief Senate trial, it will be impossible to impeach and remove Trump before he leaves office under his own power. Although there is debate about the question (and it will be heavily contested), a president can be impeached and convicted after he leaves office. But a trial after Trump is ensconced back in Mar-a-Lago might strike the public as odd, especially if the Democrats wait weeks or months to start one in order to avoid having it overwhelm the beginning of the Biden administration.
House speaker Nancy Pelosi is nonetheless proceeding with an immediate vote to impeach today. This might make sense if Trump’s term could plausibly be ended early. Since it can’t, Pelosi is short-circuiting every established procedure around impeachment — fact-finding, hearings, a report — for no good reason. She’s also advancing a flawed article that will provide Trump’s defenders with easy rejoinders. The use of the word “incitement” invites legalistic objections, and it’s not necessary to make the debatable claim that Trump encouraged and foresaw the lawlessness to capture what was so wrong about what he did.
Still, this impeachment is different from the first time around. Some Republicans in the House, most notably the No. 3 Republican, the impressive Liz Cheney, are supporting it. According to press reports, Mitch McConnell is pleased at the prospect of impeachment. If he were to come out in favor of conviction, it’d be a seismic event that would potentially bring a Senate conviction within reach.
But it remains more likely that the Senate won’t convict. This means that Trump would not be disqualified from holding federal office again, one of the main rationales for pursuing a post-presidency impeachment, and he would be able to claim victory after another Senate trial ending in acquittal.
Impeachment with a Senate acquittal is a kind of censure, raising the question of why Congress doesn’t pursue a vote of censure directly. It’d be a way for Congress to act while avoiding the pitfalls of the current course. It could happen quickly. It wouldn’t involve ignoring or twisting well-established processes or creating bad precedents. It could well get significant bipartisan support. And it would avoid the political downsides of a post-presidency trial, including potentially giving Trump a political shot-in-the-arm when he’s exiting the stage anyway and his standing is at a low ebb.
People of good will can disagree about the best response to the last two months and especially last week, but about one thing there can be no question — it’s the recklessness and selfishness of one man that brought us to this place.
For that, there must be a consequence, and it should come from the nation’s legislature.