So what would I do if I had to vote on impeachment in the Senate?
From the first, I’ve described President Trump’s behavior on January 6 as impeachable — particularly in the context of what went on in the weeks since the election, but even without that. I was not trying to be cute. I have been wrestling with the wisdom of proceeding with impeachment due to the lateness of Trump’s term. But I would not call something impeachable unless it was serious enough to be condemnable by conviction, removal, and disqualification. Indeed, I have written a book about impeachment, Faithless Execution, in which I argued that several actions taken by President Obama were impeachable. None of them was as egregious as what President Trump did — and, especially, what he omitted to do — nine days ago.
Alas, whether serious executive misconduct warrants conviction by the Senate by the constitutionally required two-thirds’ supermajority vote is not solely controlled by the question of whether the conduct in question is impeachable. This is why I can’t bring the same clarity as such friends and colleagues as Ramesh Ponnuru, Matthew Continetti, Kevin D. Williamson, and Jay Nordlinger, for whom the imperative to convict, remove, and disqualify Trump is more obvious. I ultimately agree with them, but let me try to explain why I’m having a harder time with it.
Impeachment Is a Political Process
I argued in Faithless Execution that the question of whether to impeach and remove a president is a political one, not a legal one. That is, the fact that a president engages in grave misconduct that qualifies as impeachable does not settle the question whether that president should, in fact, be removed.
The Framers saw impeachment as essential to the checks and balances that create the equilibrium they were trying to establish between and among the central government’s three branches. President-elect Biden’s recent meanderings on the subject notwithstanding, the branches are not “co-equal” — Congress was supposed to have pride of place, though not so much so that it could dominate the executive. The Framers worried that the presidency could transform into something closer to a monarchy, and that certain varieties of presidential treachery — e.g., a president covertly working with foreign powers against the United States — could destroy the republic.
To endow Congress with impeachment power was thus deemed “indispensable” by Madison. Though it has turned out to be a historical rarity, the Framers expected that impeachment would be invoked with more regularity.
Nevertheless, because they similarly feared Congress’s potential accumulation of tyrannical power were it to be given too potent a check, the Framers made impeachment very hard to do. The simple-majority-vote trigger in the House means that any grave presidential misconduct can readily be alleged as an impeachable act; but the mandatory two-thirds-vote in the Senate ensures that impeachment-and-removal will not take place unless the misconduct is so grave that a consensus of the nation, cutting across partisan and ideological lines, is established that the president must be expelled.
Whether an impeachable offense warrants removal is about much more than whether it is impeachable per se — or even whether it is patently disqualifying. The political component of impeachment very much includes whether the nation strongly supports removal, versus whether removal is apt to intensify national strife. The supermajority removal requirement was intended to forestall the potential for impeachment driven mainly by partisanship — to discourage the House from impeaching unless there was at least a real possibility, if not a probability, that the Senate would convict. Not least, there is another consideration: A president who is impeached but acquitted may be emboldened to abuse power, rather than tamed.
For these and other reasons, I argued that Obama should not be impeached despite my belief that he had committed serious misconduct that profoundly threatened both the Constitution’s framework (e.g., by usurping legislative power) and national security (e.g., by empowering Iran, the world’s leading state sponsor of anti-American terrorism). I don’t pretend to be politically neutral, but political leanings are inevitable, and thus part of the reason why impeachment-and-removal is, and should be, a near-insuperable hurdle. If it is done prematurely, driven by partisan animus (or at least perceived to be), or based on flimsy grounds, it will do more harm than good and set the country on a banana-republic style trajectory of strife, instability, and upheaval.
Incitement and the Question of Whether a Prosecutable Crime Is Necessary
Kevin Williamson could not be more right that it is unnecessary to have a penal offense prosecutable in criminal court in order to have high crimes and misdemeanors, the Constitution’s standard for an impeachable offense. But he overstates the case when he argues that the lack of a chargeable crime “is immaterial to the question of impeachment.”
Since we are dealing with a political judgment as to which two-thirds of the Senate must agree, it makes a significant difference whether it can be argued that others who did what the president has done would be prosecuted — i.e., that the presidency is operating as a shield that puts the president above the law. Moreover, there are prominent politicians and the occasional scholar who contend that a crime is necessary for misconduct to rise to impeachment-level gravity. The fact that they are wrong about that does not mean they believe it any less — and they, too, are part of the public who need to be persuaded.
This, along with my background as a prosecutor, is why I have been intently focused on the formal allegation and the text of the impeachment article, entitled “incitement to insurrection” (see here, here and here). Pace Kevin, I think it is relevant (not dispositive, but relevant) that Trump could not conceivably be convicted of incitement. That is so even if we stipulate that he demagogically stoked the crowd to descend on the Capitol, and thus did incite it in the common usage of that word as opposed to its more narrow, First Amendment–confined meaning, which requires an unambiguous call for violence that creates an imminent, probable threat of violence.
My “convict now” friends are also right that what happened at the Capitol is properly described as an insurrection. I don’t think the matter is as clear as they seem to, but that’s not important in what is a political process, not a legal one. Yet, there are important political considerations in this regard, which are separate from judgments about Trump’s misconduct, namely, the double standard and the Democrats’ motive.
Insurrection cannot be a politicized concept, such that whether it’s been committed or not depends on whether the violent mob includes Trump supporters whom Democrats despise or “racial-justice protesters” whom they lionize. Impeachment is about more than the president; it is about social cohesion. Condemning Trump after months of turning a blind eye to rampant insurrectionist violence — during which Democrats and the Left explicitly objected to invocation of the Insurrection Act to restore order — is going to make a lot of the country very angry. And I am not talking about miscreants who would storm the Capitol. I am talking about people of good will who are convinced that our institutions are cratering, and with them our society, because our leaders so fear the radical Left and its propensity to take it to the streets when things don’t go its way.
This not a sufficient reason to exonerate Trump. Two wrongs don’t make a right: You don’t cure the problem by ignoring what was, in fact, an insurrection at the Capitol. Righteous anger over the double-standard would, however, have been a good reason for the House to avoid making insurrection the gravamen of its impeachment article.
Moreover, Republicans cannot be expected to ignore that the Democrats intentionally highlighted insurrection, in part, because they are laying the groundwork for an invocation of the Fourteenth Amendment’s Section Three disqualification clause. As Dan McLaughlin has explained, Democrats and progressive scholars would like to use Section 3 to disqualify other Republicans besides Trump.
The Democrats’ political narrative is that the violence at the Capitol was caused not only by the president but by Republicans in the House and Senate (about 150 in all) who supported Trump’s campaign to pressure Vice President Pence and Congress to refuse to acknowledge Biden’s state-certified Electoral College victory. Constitutionally speaking, this was indefensible on the part of participating Republicans. But that does not make them abettors of the storming of the Capitol, which endangered them as much as the other lawmakers. I remain baffled that these Republicans clung to their untenable position even after the siege. Still, they do not warrant Fourteenth Amendment disqualification gambits, and Democrats have undermined the impeachment effort by transparently encouraging such gambits. Rest assured: the lawsuits are coming.
How Impeachment Should Have Been Framed:
- Dereliction of Duty
What should the House impeachment resolution have looked like?
Though impeachment is not a criminal case, it is still about persuasion. An able prosecutor would focus on what cannot credibly be denied and on what righteously inflames people. More arguable or dubious issues should fade to the background — you get what advantage you can out of them while making sure the jury understands they are not make-or-break.
With that in mind, Trump committed two very clear impeachable offenses.
First, he was derelict in his duty as president and commander-in-chief by failing to take any action — indeed, by turning a deaf ear to pleas that he take action — when the seat of the United States government was stormed and lives were in jeopardy, particularly the lives of security personnel, members of Congress, and Trump’s own vice president.
Second, he betrayed his duty to preserve, protect, and defend the United States Constitution by pressuring his vice president and members of Congress to violate their Twelfth Amendment duty to preside over the counting of the states’ electoral votes — in the process, undermining state sovereignty over elections, an aspect of the Constitution’s federalism principles that the president is also duty-bound to uphold.
Pleading the case this way would have had several benefits.
It would have made Capitol Police Officer Brian Sicknick, who was murdered, the face of impeachment. An impeachment manager opening the presentation to the Senate could have declared without hesitation: “When Officer Sicknick needed a president, Donald Trump was missing in action. When America needed a commander-in-chief to protect the seat of its democracy, Donald Trump wouldn’t be disturbed — he was busy watching television.”
Focusing the case on what the president was doing, and willfully failing to do, while Officer Sicknick was killed, other Capitol police were assaulted (at least one other of them savagely so), and the lives of the vice president and the people’s representatives were imperiled, would have framed the case around misconduct (1) as to which there is no factual defense or legal ambiguity; and (2) which would powerfully illustrate the danger of maintaining the president in office, even for a few more days. Contrary to what the House passed, to frame the case this way would have made it much harder for Senate Republicans to decline to reconvene for an immediate trial.
Next, I want to return to Kevin’s point about the fact that impeachment does not require an indictable offense. As explicated by Hamilton, impeachment is more resonant of military than civilian justice. There may not be a civilian crime here, but dereliction of duty is a serious offense under military law. During a forcible siege against the seat of government, it is inexcusable in a commander-in-chief. The fact that an American military commander would be severely disciplined for what the president did makes the impeachment case stronger.
Constructing the case as I suggest would also have diminished the legal significance of incitement and insurrection. Instead of playing defense — Can the president be said to have committed “incitement” consistent with federal law and First Amendment protection of political speech? — the prosecution would be playing offense: Regardless of whether the president is guilty of incitement, he is even more culpable for failing to respond to the siege because he urged people to march on the Capitol and to pressure those inside — and, in fact, publicly rebuked the vice president even as he knew people were marching on the Capitol. (See Jim Geraghty’s report.)
Furthermore, as Rich Lowry detailed in his column on Friday, reports indicate that the violence at the Capitol started before Trump was done speaking at the Ellipse. If the key question were whether the president incited the crowd, this fact would be highly pertinent. It is largely irrelevant, though, if the issue is how the commander-in-chief responded once he became aware of the violence.
It doesn’t matter, as some in the administration now half-heartedly claim, that the president had earlier in the week green-lighted any necessary armed forces deployment to support civilian law-enforcement and the Capitol. He became aware of the siege in real time and he abdicated — leaving it to the vice president to attempt to fill the void by spurring the Pentagon to action (though Pence technically lacked that authority). The president’s performance is inexcusable. People, including Officer Sicknick, were killed and injured while Trump dithered — and, according to some reports, reveled in his supporters’ zeal to fight for him. It is beside the point whether the siege is best described an insurrection, a riot, a protest run amok, etc.
- Subversion of the Constitution’s Election Process
It is impossible to assess the president’s dereliction independent of its context. Trump and his supporters touted the rally on the Capitol days in advance in order to intensify pressure on Pence and congressional Republicans to abdicate their constitutional duty to preside over the counting of the states’ electoral votes and acknowledge Biden as the winner of the election. And this itself came in the broader context of the president’s agitation of his supporters by making inflammatory statements about the election, many of which were either blatantly false or recklessly indifferent about their inaccuracy.
In the constitutional system that the president is sworn to preserve, protect, and defend, the states are sovereign on the matter of conducting and certifying their elections. To the extent the states are bound to comply with the Constitution, the president had a full and fair opportunity to contest that question in federal court — and, for the most part, his legal team folded when federal judges invited them to prove their extravagant allegations of fraud, rigging, and constitutional violations.
It was perfectly appropriate for the president to rely on his legal right to seek recounts and contest state election procedures. It is inexcusable, however, for the president to have tried to induce the vice president and congressional Republicans to violate their sworn constitutional duties. That in itself is worthy of an impeachment article.
Guilty or Not Guilty?
To summarize, my problem with the impeachment article the House has lodged against the president is that it is ill-considered, legally dubious, politically motivated, deeply divisive, and calculated as a first salvo in targeting Republicans other than President Trump for disqualification from public office.
That said, this is not a legal trial, but a political one. I cannot say that the president did not “incite an insurrection” as that phrase is commonly understood. Despite that, I would still be inclined to vote to acquit, except for one inescapable fact: Impeachable conduct for which condemnation is warranted did in fact occur. Since the animating issue here is whether the president of the United States merits removal and disqualification for the good of the nation, rather than whether he has received model due process, I would vote to convict, my deep reservations about the impeachment article notwithstanding.
What Should Happen?
I don’t agree with Senator Mitch McConnell’s judgment that it would be — or at least would have been — impossible to conduct a Senate impeachment trial with adequate due process prior to the conclusion of the president’s term. As Rich and I have discussed on our podcast, due process is the process that is due under the circumstances. In impeachment, due process is an aspiration; the national security of the United States is the imperative.
If we woke up one morning to smoking-gun, undeniable proof that an American president was a spy for a foreign adversary, Congress would have to impeach and remove the president immediately. The 25th Amendment, which allows for instantaneously suspending the president’s authority, would have no bearing on a situation that did not involve a severe health-related disability. And the protection of the republic would demand swift impeachment and removal. No one in his right mind would say, “Let’s leave a foreign spy in the Oval Office for a few more weeks so we can have some hearings and make sure the Senate trial is fair.”
Those who have urged that, after the events of January 6, the president cannot be trusted with our security — the president’s highest obligation — have a point. The Senate should have reconvened to conduct the trial, an outcome the House might have persuasively pushed for had Democrats not so patently politicized an impeachment that should and could have won broader bipartisan support.
At this point, I fear it would be counterproductive to have a Senate trial. In five days, the president will no longer be in office. If he is tried after he is out of office, the Senate will have to suspend business at a time when the new administration is not yet fully set up, and foreign adversaries may see that as an opportunity to make mischief. With no urgency to have a rapid trial since Trump will already be gone, there will be much less justification for limiting due process to a minimum. The proceedings will be more drawn out than they should be.
More to the point, the high probability is that Trump would be acquitted.
As noted above, impeachment is meant to be very difficult. Here, beyond that, Republicans have been given at least four reasons to vote against conviction: (1) the profound constitutional question of whether a president already out of office may properly be tried (I am in the camp that says a removed official may be impeached, tried, and disqualified, but it is a disputed issue); (2) the afore-described manner in which the article of impeachment was poorly drafted and rashly adopted; (3) the lack of overwhelming consensus in the country that Trump should be convicted and disqualified; and (d) the blatant partisanship of the House impeachment proceedings, including the fact that the first impeachment was unserious and the current one lays the groundwork to seek disqualification of Republicans other than Trump under the Fourteenth Amendment.
Consequently, the main effects of a Senate impeachment trial would be to keep Trump in the limelight, playing the martyr, and then to enable him to claim vindication when he is acquitted. That would make him more likely to mount an audacious 2024 campaign. I don’t believe he could succeed in retaking the presidency, but he could be destructive of Republican and conservative prospects.
Under the circumstances, the best thing for the country would be a bicameral, bipartisan resolution of censure that compellingly summarized and condemned the president’s misconduct. The Senate could then agree not to proceed with a trial. Trump would remain the only president ever impeached twice, and the censure would stand as an emphatic verdict of history. The country could move on from this sorry chapter, rather than enhancing Donald Trump’s relevance and setting the stage for him, perversely, to claim victory.