It’s not too late to consider another path while still holding Trump accountable for his actions.
Like all Americans of goodwill, I was dismayed by the riotous attack on the Capitol — indeed, by the escalation of political violence during the last six months of which the riot was the culmination. With the presidency having changed hands, my immediate concern is with the House of Representatives’ second resolution of impeachment against Donald Trump and his looming Senate trial.
Let me note at the outset that I write as a professor of political science and constitutional law, a constitutionalist, a conservative, a Republican who voted twice for Trump, and an American. I have devoted four decades of my life to analyzing and celebrating our Founding and the imperfect yet glorious politics it made possible. What is at stake now is the continuing viability of American principles and institutions.
On impeachment, I posit three arguments against it: (1) Even though Trump bears core responsibility for the unrest, he does not bear criminal, impeachable responsibility. Indeed, much of the responsibility is shared by other political actors and voices in our system. (2) The process initiated by the House, far more than the first impeachment of Trump, departs from the constitutional values that undergird the impeachment process. (3) The completion of the process in a Senate trial is likely to do greater harm to the nation, beset as it is by deep and bitter partisan antagonisms.
Therefore, instead of impeachment, the best way forward is a bicameral and bipartisan resolution of censure.
Opposition to impeachment does not equal support for the now former president. I do believe that, as president, Trump could, and should, have acted differently in the weeks, days, and hours prior to the riot and also during it. But I do not think that Trump intended to generate a riot, let alone an “insurrection.” To some, his intention is irrelevant, but it is not. Intentionality is critical to responsibility, and just as there is a distinction between manslaughter and murder, Trump’s complicity in the riot should not be exaggerated. Given his high office, however, he is substantially responsible and should be held accountable for his role in the disturbance. He demonstrated a recklessness that is inconsistent with the high expectations embedded in the oath and the office of the president.
Moreover, Trump was not the sole actor responsible for the generation of the conditions that led to this lawless attack. Much of the leadership of the Democratic Party, on every level of government — local, state, and congressional — and much of the media establishment either passively blessed or actively encouraged the rioting and looting in the name of “protest” that occurred elsewhere over the last six months. The same influencers were either indifferent to or denied the disturbing irregularities in November’s election, which should have been more thoroughly aired even though the essential integrity of the election was not in doubt. Many of the same parties for the last four years actively denied the legitimacy of Trump’s election, fostering the false Russian collusion narrative and nurturing baseless partisan hatreds and disrespect for the structures and processes of constitutional government, including prosecuting the shameful first impeachment.
The most common and explicit rationale offered for the impeachment vote on January 13 was that Donald J. Trump presented a “clear and present danger” to the republic, warranting removal in the week before the end of his term to save the nation from his perturbations. This is nonsense. Here are the real motives behind the Democrats’ and some Republicans’ advocacy of immediate impeachment: the urge to vent their fury toward and hatred of Trump; the desire to use a constitutional process to destroy Trump’s political legitimacy and deprive him of any political future; the strategic electoral calculation to divide the Republican Party by forcing Republicans either to repudiate the president or to stand by him, and in standing by him, to undermine their own political future; and the urge on the part of Democratic leadership to have the final word on the character of Trump’s presidency. None of these motives justified the hasty and ill-considered impeachment, which now moves to the Senate. Far from promoting national unity, an impeachment trial, whatever its outcome, would damage the integrity of constitutional impeachment.
The Constitution does address and provide answers for many of the critical questions facing us, but there are shimmering ambiguities that the text and even a comprehensive grasp of the principles of the Founding do not decisively adjudicate. May the House impeach and the Senate try a former occupant of a federal office? May the Senate vote to disqualify an individual from holding future office but not remove him (when, as in this case, removal is moot)? May the Senate refuse to take up an impeachment duly initiated by the House? There are divergent and equally plausible responses, ratified by a few historical precedents, to these questions. But my concern here is not so much with constitutional authority as with constitutional probity. I am certain that, however one answers the above questions, the proper constitutional values underlying any of the consequential and grave processes involved in impeachment and removal are slowness, deliberation, information, debate, fairness, and bipartisan consensus.
Here is the menu of choices facing the Congress, several of which are not mutually exclusive:
The House could repeal the impeachment resolution. Since the resolution is the act of the entire House, the speaker does not have the authority to treat it according to her discretion alone. While this would be the proper course in a better world, the Democratic majority and its Republican allies are too invested in their cause, and the Democrats too beholden to their Trump-hating base, to undo the resolution’s mischief by repeal.
The House could table, but not repeal, the impeachment resolution. The resolution would remain as the official declaration of the judgment of the House, however unreflective and partisan the process that generated it. Democrats could maintain their credibility with their base and the ten Republicans who voted in favor of impeachment could claim political cover sufficient to garner the support of anti-Trump Republicans. Trump would retain the stain of being the first president to be impeached twice, and we might be able to move forward without dragging the Senate into this mess and further intensifying the partisan distemper affecting our politics. Alas, it is unlikely that the 192 Republicans who opposed the resolution could join with enough reasonable Democrats to table it.
The Senate could refuse to try the impeachment. This would be prudent but would leave the Senate liable to the accusation of dodging constitutional responsibility. Nevertheless, in doing so, the Senate would fulfill the expectations of the Founders with respect to its greater seriousness, rationality, and devotion to the broader, nonpartisan, national good — just as it fulfilled those expectations in the first impeachment of Donald Trump.
The Senate could try the impeachment. This is the likely alternative unless cooler heads prevail. Of course, the likely outcome of this alternative is acquittal. The Democratic leadership may be hoping for this, if only to put Republicans on the spot in the desire to force them to pay an electoral price in two and four years. But this trial, coming after President Biden’s inauguration, would have a moot and senseless quality to it. I would call this sham exercise “political theater,” but I love the theater too much to associate it with such a stunt. It would also suspend the operation of the Senate at a critical moment in our nation’s life, undermine the momentum of the emerging administration and its agenda, and cheapen the already cheapened constitutional process of impeachment while perpetuating the very same partisan energies that brought us to the precipice of catastrophe.
The Congress could pass a bipartisan and bicameral resolution of censure. Such a resolution would hold Trump responsible for failing, at a precarious moment for the nation, to fulfill his oath to faithfully execute his office. This is truly the best course of action: It is the one most appropriate to Trump’s egregious miscalculation and most likely to enable the nation to heal, and it avoids preempting the governing functions of the Congress, especially the Senate. The leadership of both chambers should appoint a joint select committee, consisting of equal numbers of Democrats and Republicans, to investigate thoroughly, with the assistance of the intelligence and law-enforcement agencies, the provenance of the attack on the Capitol, its leaders, and organizers, and perhaps also (to be fair) to examine the irregularities of the election. Having ascertained the complex but decisive role that Trump played in the mêlée, the committee could draft a comprehensive and eloquent statement laying appropriate blame on the president for his failures.
The resolution of censure should also include high praise of former vice president Mike Pence, who was maligned and treated vilely by Trump in the weeks leading up to and in the very moment of the electoral vote count, but who turned out to be perhaps the most heroic and most presidential vice president in American history, an anchor of stability and probity in the maelstrom of the election and its abhorrent aftermath. He should also be praised for resisting the bizarre argument pressed by many Democrats to invoke the 25th Amendment. His courageous defense of the stable center of American politics points the way forward for the Congress and the entire nation.
I believe that such a resolution would win bipartisan, perhaps nearly universal, support in both chambers. It would speak not only to those members of the public who backed impeachment but to the Trump supporters who opposed it. As such, it would deliver a rebuke with real staying power.
If the plea to rise above petty politics should fall on the deaf ears of congressional leadership, then I appeal to President Biden to ascend to statesmanship. After a 40-year career as a mediocrity in the Senate, whose attainment of the presidency was made possible by the dysfunction of the nominating process and the inadequacies of his primary rivals, he could still prove his mettle.
During the first presidential debate, Biden stated, “I am the Democratic Party.” So be it. President Biden, steer your party and the nation toward our proper path. Be the leader you promised us you would be. Counsel the members of your party to drop this destructive measure and allow us to begin to heal. Do it not only for the sake of the Constitution and the nation, but also for the sake of your self-interest as a new president, anxious to launch your administration and address the daunting crises facing us.
As to Donald Trump’s political future: We are too polarized to determine the fate of this most polarizing figure, and to attempt it now will only make the problem worse. Let the American people in good time resolve this question. We must learn from, and then move beyond, the events of the past several months. Though there is much to fear, a potentially magnificent future still awaits us.