Wednesday’s vote inflicts a sufficient, humiliating verdict on the president’s conduct.
Wednesday's vote inflicts a sufficient, humiliating verdict on the president’s conduct.
D onald Trump on Wednesday became the first president in American history to be impeached twice. Republican congressional leaders are signaling that they may contribute the necessary votes not just to impeach, but also to convict Trump for his contribution to the January 6 attack on the Capitol. Instead, they would be wise to stop the rush to judgment short of conviction. Impeachment alone, without a verdict of guilt in the Senate, would inflict a sufficient, humiliating verdict on the president’s conduct without doing further damage to the Constitution’s separation of powers.
It should come as no surprise that House speaker Nancy Pelosi led Democrats in the House to impeach Trump. On the day that Congress began officially counting the electoral votes that would confirm Joe Biden’s election as president, Trump gave an incendiary speech claiming widespread voter fraud to a large crowd. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” the president declared. “If you don’t fight like hell, you’re not going to have a country anymore.” A mob then descended on the Capitol and forced a suspension of the proceedings. Members of Congress fled into hiding; rioters and Capitol police engaged in pitched battles throughout the House and Senate; and at least five people died, including an officer.
Even though Trump’s term in office will end in one week, the riot has caused Congress to rush an impeachment. In announcing her intention to start impeachment proceedings (which took all of two days), Pelosi declared that we have a “deranged, unhinged, dangerous president of the United States, and we’re only a number of days until we can be protected from him.”
Leading Republicans joined her. Representative Liz Cheney, daughter of former vice president Dick Cheney and the current No. 3 Republican in the House, voted to impeach. “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not,” Cheney declared in statement. “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
Trump may encounter similar opposition from Republican leaders in a Senate trial. According to anonymous sources in the New York Times, current Senate majority leader Mitch McConnell has told associates that he believes Trump committed impeachable acts, that he is pleased to see the impeachment efforts, and that he views removal as a convenient means to purge Trump from the Republican Party. If McConnell plans to vote against the president, it suggests a high likelihood that Trump will actually be convicted.
But Senator McConnell and other Republicans senators should pause and think before they join the House in its rush to judgment. Trump certainly committed impeachable acts. First, he encouraged mass public disorder to pressure Congress and his own vice president into denying the results of the Constitution’s Electoral College system — dispersed throughout the states — that found Biden the winner of the 2020 presidential election. Second, Trump proved derelict in his duty. He watched live video of the riots rather than calling on law enforcement and even the military to protect Congress as it performed one of its most important constitutional functions. Two of the president’s most important responsibilities, as explained by the Founders in defending the new Constitution, include executing the laws and defending the government and the nation from attack. On January 6, Trump failed to carry out both duties.
But Trump did not commit a federal crime. He did not call for violence, he did not specifically know that violence would result, and it was not clear at the time of his speech that the mob would use force to attack the Capitol. Trump spoke recklessly, but not criminally, at least not as defined by the Supreme Court in important First Amendment cases. But as James Phillips and I show in a forthcoming article in the Southern California Law Review, the Founders did not believe that impeachment requires a criminal act. Although the Constitution sets the grounds for impeachment as treason, bribery, “or other high Crimes and Misdemeanors,” its drafters and ratifiers would have understood that phrase to include serious abuses of power, dereliction of duty, or failure. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”
Even though Trump’s encouragement of opposition to the electoral count and his delay in protecting Congress qualify as impeachable offenses, Republican senators should consider voting for acquittal not to protect Trump, but future presidents. There are several reasons to support this action. First, the Founders believed that impeachment should remain an extraordinary and rare measure for only the most severe cases of presidential misconduct. They defined the grounds for impeachment so high, and then set the standard for conviction even higher at two-thirds of the Senate, because they did not want Congress using a power of removal to control the president and eventually erode the executive’s independence. Senators should cast a suspicious eye on a House impeachment process that took only two days — even the House’s 2019 impeachment of the president followed months of investigations, hearings, and debate. If the Senate blesses a second impeachment in two years, which takes only days to draft and report, it will only encourage future Houses to launch abbreviated proceedings that could easily seek to subordinate future presidents. While the Constitution has many ambiguities, on one thing it is clear: The Framers wanted an energetic executive independent of Congress, which is why they placed his election in the states and made his removal difficult. Even though Trump has inflicted an unprecedented disruption on the political system, pursuing impeachment further could make matters worse by turning the extraordinary of impeachment into the everyday.
Second, the impeachment drive runs into serious constitutional difficulties. Because of its hasty two-day proceedings, the House has erred in its articles of impeachment. It has charged the president with “incitement to insurrection.” But Trump’s conduct simply does not rise to the level of criminal incitement, which our legal system makes difficult to prove in order to protect free-speech values — most importantly, the right to criticize government. As noted earlier, the House could have charged Trump with abuse of power and failure to fulfill his constitutional duties, but it did not. Instead, it charged the president with a crime that he did not commit. The Senate should not vote to remove the president on grounds, however true they might be, that the House did not approve in the articles of impeachment, just as juries cannot convict suspects for crimes unproven or uncharged by the prosecution.
Third, if the Senate were to agree with the House, it would be convicting someone who is no longer president. The Senate is currently in pro forma session and is not scheduled to hold full proceedings, where an impeachment trial could begin, until roughly Inauguration Day. Any trial worth calling a trial could not reach its conclusion until well into 2021 — recall that last year’s impeachment trial took almost a month of Senate time. By the time the Senate could complete a trial, Donald Trump, president, will have become Donald Trump, private citizen.
It is an open question whether the Constitution allows the impeachment of presidents no longer in office. The constitutional text states that “the President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Impeaching a former official makes no sense in light of this text. After Trump leaves office, he does not qualify as an “Officer of the United States” at the time of the trial, and the sentence of removal cannot apply to someone who is no longer in office.
A separate constitutional provision gives House Democrats a little hope. It states that “judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Supporters of impeachment argue that even if Congress cannot remove private citizen Trump from any office after January 20, the Constitution allows a separate sentence of barring him from office — and that sanction can still make sense for someone who is no longer in office. It is not clear from this text whether disqualification must accompany removal (notice the “and” before “disqualification”), or whether it constitutes an independent and separate penalty.
The only evidence in support of a contrary reading of the constitutional text depends on history. America inherited the strange device of impeachment from British 18th-century constitutional practice. At the time of the Founding, the British parliament had impeached former government officials. Indeed, at the time of the ratification of the Constitution, Parliament was engaged in the controversial impeachment of Warren Hastings for his acts as governor-general of India (Edmund Burke was a leading prosecutor), but after he had resigned. American revolutionary state constitutions also permitted impeachment of officials after they had left office. And early federal practice involving the attempted impeachment of former U.S. senator William Blount in 1797 seemed to assume that Congress could still reach former officials. This precedent seemed to persuade the Senate when it allowed the impeachment of Secretary of War William Belknap in 1876 after he had resigned (though it ultimately acquitted him). Without such an exception, scholars reason, an official can simply escape impeachment by resigning right before the Senate reaches its verdict.
But perhaps the better reasons to reject conviction are grounded in good policy, rather than in good constitutional reasoning. The Senate might need weeks, if not months, to hold a trial for which facts still need development, such as Trump’s participation, if any, in the events leading up to the attack on the Capitol and his alleged lack of energy in defending it. The Senate would need to carefully deliberate over whether Trump’s speech should receive First Amendment protection, whether his attacks on the election violate his duty to enforce the laws, and whether impeachment applies to former officials. A trial could consume the political energy and public attention needed by a new president to launch his administration, accelerate the fight against the COVID-19 pandemic, and continue the economic recovery. All to win a verdict that, at best, would only bar Trump from holding federal office in the future — a result that Trump all but guaranteed with his conduct last week.
Instead of convicting, the Senate could place its faith in the wisdom of the American people. On November 4, 2020, we learned that the American people had decided to remove President Trump from office by denying him a second term. On January 20, 2021, the normal mechanisms of constitutional government will carry out that verdict by inaugurating Joe Biden as president. Similarly, the American people are fully capable of imposing the other sentence for conviction: disqualification. The voters can render that verdict by simply refusing to elect Trump ever again. The American people do not need a rushed, infirm House impeachment, nor an unprecedented Senate conviction, to remove Trump from their future. They can do that all by themselves.