(Three questions of “ought” — the nature of Trump’s high crimes and guilt — present harms, future harms — the expected cost of Trump’s arrow — act consequentialism, rule consequentialism — political division and a politics of truth — in defense of the impeachment article — politicized impeachments and Federalist 65 — the risk of backfire — a prisoner’s dilemma — no turning back now, senators)
We are in a blizzard of argument about President Trump’s second impeachment and pending Senate trial. What follows is my attempt to orient myself by placing my reasons for supporting impeachment and conviction (both this time and last) in a conceptual framework. Part I deals with the current impeachment. Part II, to be published separately, will revisit Trump’s first impeachment in the retrospective light of the present.
Distinguish three questions of “ought.”
(1) Ought President Trump’s misconduct to be considered sufficient, in the abstract, to justify impeachment and conviction? Here we prescind from the concrete national situation and any related considerations of prudence.
(2) If we now take into account that national situation, what ought to be the will of Congress? Here we imagine that we have a blank slate on which to write our preferred outcome.
(3) What ought to be or have been the course of particular senators and representatives voting on the actual article of impeachment while unsure of the outcome?
Since there is a broad consensus that the answer to Ought (1) is yes, I won’t belabor the point much.
The only remotely plausible way to say no is to hold that (a) officials may be impeached only if they have violated a criminal statute, and (b) Trump has not done so, his post-election speech has been protected under the First Amendment, and so he should not be impeached. Part (a) of that claim is false (for reasons that Ramesh Ponnuru has explained here and the editors of National Review here), and so part (b) is irrelevant.
Trump has made a sustained effort to shred our nation’s lawful and established mechanisms for selecting a president and transferring power. He has manipulated millions of voters and radicalized an unknowable number of them with his endless, lying claims of widespread election fraud. He has tried to badger and threaten Georgia election officials into committing election fraud. And all of this, culminating in his January 6 speech to the crowd that became an insurrectionist mob, knowably undermined confidence in the election and raised the possibility of political violence. This makes him morally and politically culpable for the storming of the U.S. Capitol and its deadly results even if he did not specifically foresee or intend them. (Compare: A asks B to lunch but B dies in a car crash along the way. B would have remained alive were it not for A’s invitation, but A is not culpable.) People are dead because the mob believed what Trump said. To adapt Representative Liz Cheney, his whole post-election course of conduct is the greatest violation in American history of the presidential oath of fidelity to the Constitution.
We turn now to Ought (2).
Is it constitutional to try Trump after his term ends?
Ramesh also argues that courts are likely to defer to Congress’s sense of the question. If the Senate is unsure but wants Trump convicted, it should convict him and put the proposition to the test. And if the courts improbably disagree, we should amend the Constitution to allow late impeachments, since Trump will have exposed a design flaw in the system: a dangerous incentive for impunity by a defeated president who does not wish to yield power.
Are there advantages to convicting Trump?
Yes. First, to disqualify him from ever holding office again, thereby preventing any danger from a second Trump term and minimizing Trump’s ability to further disorder our politics. Second, and perhaps more important, to deter similar wrongdoing by future presidents. Those benefits remain achievable after his term concludes, so we should seek them.
Against these advantages, weigh now the main disadvantage of disqualification: that a Senate trial will prolong our division and perhaps provoke further violence from Trump supporters. Since Trump, allegedly, is already politically neutered, having disgraced himself so spectacularly, these potential harms might be heavier in the scale of consequences than the benefits mentioned in §4.
Of preventing further violence from Trump supporters: I feel visceral revulsion at the thought of appeasing a mob, but set feelings aside. Appeasement would be highly imprudent, since weakness in the face of aggression invites further aggression (as Jim Geraghty and Rudyard Kipling have noted).
There is also an obvious tension between the idea that Trump has been neutered and the idea that his supporters are such a threat that we must shrink from holding him accountable. If their numbers are great enough for us to fear them, why should we think he is politically neutered? Are the kind of people whose souls he has so colonized that they would storm the Capitol for him likely to put away their grievance just because he is out of office? Even if he cannot win reelection, the very possibility of his running will keep millions of citizens riveted to him. His diehard supporters may well see Senate conviction as a kind of martyrdom, but the knowledge that he could not mount a comeback would compel those among them who are law-abiding to give up their cause as lost. Those who do not would set themselves expressly against the Constitution, and this would make it easier to expose their radicalism and marginalize them.
As for avoiding further division, to make that wish decisive would be to mistake means for ends. Unity is only as good as that around which we unify, a means — the last means, after all our debating, which is a prior means — of achieving the common good. If exiling Donald Trump from our political life would serve that good, then it’s worth enduring some division for.
And since manipulatively stoking division for personal gain is Trump’s M.O., the alternatives of removing him from our politics or avoiding further division present a false choice. Rather, removing him from our politics is a means of reducing division, if not over the next month then over the next year and well beyond. (En passant: I wonder whether the notion that “moving on” is intrinsically good comes from today’s general approval of Gerald Ford’s pardon of Richard Nixon. If so, one should notice that the cases are not remotely comparable: Nixon resigned and was ineligible by the 22nd Amendment to run for president again, and the offenses that led to his resignation did not involve constantly and lyingly inflaming half the country against the other half.)
Turn now to the goal, mentioned above (§4), of deterring wrongdoing by future presidents. Trump’s misdeeds have made a formerly unthinkable disregard for the Constitution something real at the highest level of our politics. They did not enable him to seize power, but who is to say that future conditions will not allow another president to use such tactics more successfully? It’s shocking how much of our public life Trump’s failed effort at election-stealing has managed to corrupt. Would you have thought, six months ago, that more than half of the House Republican caucus, including its leader, would object to congressional certification of the Electoral College vote on no factual basis whatever, as if it were their duty to entrench the delusions of their constituents rather than tell the truth to them? Would you have predicted that a former national-security adviser and retired lieutenant general would call for declaring martial law, having the military seize voting machines, and rerunning the election? And if that happened this time, what might happen next?
Trump laid down an arrow that, if followed, would lead to tyranny. Impeaching and disqualifying him would be the best way to reverse that arrow. Popular disapproval is welcome, but the public is fickle and Trump is a genius of manipulation. What’s wanted is the strongest and most indelible institutional anathematization available.
The harms contemplated in §8 are, of course, speculative, but don’t dismiss them for that. Consider instead the concept of expected cost. You may recall that the expected cost of something is its probability of happening multiplied by its cost if it does happen. The probability of moving farther along Trump’s arrow may not be very high. But the costs of doing so could be catastrophic.
In fact, all of our reflections in §§6–9 are speculative. I’ve speculated as well as I can. But the danger of this whole approach is that it opens the door to casuistical justifications of whatever one would like to do anyway: You make your speculation, you treat it as a fact, and lo, the inarguable conclusion.
So we might consider a different way of thinking about consequences. Rather than ask what decision on this occasion will lead to the best outcome (what is known as “act consequentialism”), we could ask whether there is some rule we might follow that, in general, will lead to the best outcomes (what is known as “rule consequentialism”). As an example, consider drunk driving. If someone is slightly over the legal limit, he might think about driving home anyway. It would be more convenient. He can’t say with much confidence what will happen if he does. He might cause an accident, he might not; he might get pulled over, he might not. Who knows? If, however, he simply follows the rule of not driving while drunk, he can be confident that it will guide him in general to the best outcomes.
I suggest that rule consequentialism is an excellent framework for deciding when to impeach and convict a president. In fact I think it should be our default framework, yielding to act consequentialism only when we are highly confident in our speculations about the consequences of the case at hand.
I think no one can say with high confidence what will be the outcome of convicting and disqualifying Trump or of not doing so. But I think we can be highly confident that if, in general, we impeached and convicted presidents for spectacularly violating their oath of fidelity to the Constitution, we would achieve unspecified good outcomes and avoid unspecified bad outcomes. I think we can also be highly confident that if, in general, we disqualified from future office impeached and convicted presidents whose misconduct has been uniquely, indeed violently, destabilizing, we would achieve unspecified good outcomes and avoid unspecified bad outcomes.
Rule consequentialism clarifies the value to posterity of disqualifying Trump. It’s not just about sending a “symbolic message,” though it would do that. It’s not just about “civil hygiene,” though it would achieve that. At root, it is about setting the right political precedent: a precedent of defending the Constitution.
And defending the Constitution is, in general, the best way to prevent political division (cf. §7) from becoming catastrophic. It is naïve to think that political division can be avoided, because citizens have deep disagreements about almost all questions of politics and do not share a comprehensive view of what the common good requires. Ironically but not paradoxically, then, it serves the common good to recognize that we will inevitably disagree about the common good and to institute procedures for handling our disagreements peaceably. The Constitution is that set of procedures, which is why the importance of its defense — against any who, like some of Trump’s supporters, would resort to political violence in order to impose their comprehensive and highly particular idea of the common good — is paramount.
Here is another rule that I think would have good consequences if in general we followed it: We don’t appease mobs.
And here is another one: While following constitutional procedures for managing our division, we strive to align our politics with the truth as we understand it, not worrying overmuch about whether others also perceive it. We do this because if there is political and moral truth, however imperfectly perceived, then public perception of it is a better long-term bet than public misperception, i.e. alignment with falsity or the unreal.
So we don’t especially worry about whether convicting and disqualifying Trump will make him a martyr to his cultists if we think the truth is that he will be no martyr.
Turn finally to Ought (3).
One objection to a yes is that, although Trump is convictable in the abstract, and although it would be good to convict him now somehow, the article of impeachment is flawed because it accuses trump of “incitement of insurrection” and this is not an accurate description of his misconduct.
One sense in which the description might not be accurate is that of criminal statute: Trump probably could not be proved in court to have incited an insurrection as federal statutes define that crime. Andrew C. McCarthy has developed this point. He fears that there will be a “pitched legal battle” over whether Trump committed the statutory crime. (He makes the further point that the impeachment language is politicized, since, for example, Democrats were not inclined to speak of rioting over the summer following the killing of George Floyd as an insurrection. I’ll come to the issue of politicization below.)
I would have preferred that the article take the wider-angle view that Andy suggested, accusing Trump of: “(a) subversion of the Constitution’s electoral process, particularly the Twelfth Amendment counting of the sovereign states’ electoral votes; (b) recklessly encouraging a raucous political demonstration that foreseeably devolved into a violent storming of the seat of our government; and (c) depraved indifference to the welfare of the vice president, Congress, security personnel, and other Americans who were in and around the Capitol on January 6.”
But I don’t think the article as written is fatally flawed, because there is no reason why members of Congress need to take it in the criminal-statutory sense. Since impeachment is not a criminal proceeding, they are perfectly free to hold that Trump incited an insurrection in the common-language meaning of those words. Andy himself has spoken of the mob as “insurrectionist” in the non-technical sense and accused the president, again in the non-technical sense, of inciting the insurrection. So why shouldn’t members of Congress do the same?
Andy in fact agrees that, if they wish to, they may. But he thinks the language is too vague and loaded. He notes that, “while the crime is referred to as ‘incitement’ for purposes of shorthand reference, the word incitement does not actually appear in the applicable law.” And he elaborates:
In crafting what is commonly referred to as the incitement statute, lawmakers took pains not to use the word incitement in order to avoid constitutional problems — to avoid suppressing First Amendment–protected speech, and to ensure clarity, as opposed to vagueness, in punitive laws.
In drafting an impeachment article, particularly one adopted with no hearings and no due process, the House should heed its own example and describe the president’s misconduct without using loaded words.
But I don’t see how the second paragraph follows from the first. To impeach is not to craft a criminal statute. It is to practice politics. I find it understandable and perhaps shrewd that the House passed an impeachment article that is ambiguous as to whether the language is criminal-statutory or everyday-descriptive, since some legal experts hold (albeit erroneously) that impeachment does require a statutory offense. What Andy finds vague and loaded, I can see as a politically intelligent way of accommodating existing disagreement in order to achieve a necessary result.
And besides, if the federal statutes do not even use the word “incitement,” does that not bolster the point that the impeachment article should not be read in the narrow statutory sense, and so undercut the significance of a legal battle about whether Trump violated statutes?
A second objection as to accuracy might be that, even in the common-language sense, Trump did not incite the insurrection, because he said that the protesters who became the mob should go “peacefully” to the Capitol.
This too I find unpersuasive. Trump may not have intended the violence, but Senator Ben Sasse, citing unnamed White House sources (who have a patriotic duty to testify on the record), has said that Trump was initially “excited” to see “rioters pushing against Capitol Police trying to get into the building.” This makes it clear that “chaos” (Sasse’s word) was at least compatible with Trump’s intentions. And the very act of pushing against police officers already manifests a violent and lawless intent on the part of the mob, which Trump by extension must have approved as well. His prior use of the word “peacefully,” which may have been no more than a C.Y.A. gesture, mitigates none of this.
And in the common-language sense of “incite,” specific intention is not required: Merriam-Webster’s definition is “to move to action : stir up : spur on : urge on.” I read these definitions, taken together, as implying causation but not requiring intent.
As for “insurrection,” Merriam-Webster defines it as “an act or instance of revolting against civil authority or an established government.” Certainly what happened at the Capitol was that.
To sum up, then: In the common-language sense, Trump is guilty of recklessly and culpably causing a foreseeable if not inevitable act of insurrection, certain manifestations of which he is reported by Senator Sasse’s witnesses to have approved. The article of impeachment is apt.
And it remains apt even if, as Rich Lowry observes, the rioters appear to have fought with police before Trump finished speaking, since, as Merriam-Webster notes, “incite” “may or may not imply initiating” and every rioter was there only because of Trump’s entire post-election disinformation campaign, and since Trump’s speech can only have egged the rioters on and added to their number.
Another objection to a yes on Ought (3) is that the impeachment was politicized, a stunt. This objection amounts to a circumstantial and psychologically speculative just-so story about how the House Democrats proceeded.
The least important flaw in this argument is that the circumstances can be interpreted either cynically or non-cynically, which makes the argument inconclusive and trivial. For example:
“The House Democrats waited five days to reconvene, so they must not have found the impeachment very important.” But the circumstances were unprecedented; presumably a certain herd confusion had to be overcome, and the best way to proceed might not have been immediately evident.
“They did not hold hearings or write a report.” But time had passed and Trump’s term was waning; the House knew the Senate would be free to call witnesses and conduct its own investigation; and in any case what everyone saw in public was more than enough to justify impeachment.
“But then why not wait until after Trump’s term and proceed more deliberatively?” Because there are mistaken doubts as to whether late impeachments are constitutional, so it was good to move as quickly as practicable; and because by impeaching immediately a Senate trial would be guaranteed, while if the House had waited the momentum necessary to begin proceedings at all might have dissipated.
A more important flaw in the objection from politicization is that the expectation of unpoliticized impeachments is simply unrealistic. Is not everything — highly significant legislation, judicial confirmations, grave matters of state, decisions of war and peace — politicized, and perhaps all the more the greater the importance? Why would impeachment be any different?
That the Framers required only a majority to impeach, rather than the two-thirds required for conviction, suggests that they expected the impeachment process to be highly political and influenced by faction. That assumption is on display in Federalist 65. Hamilton there defines impeachable offenses as those “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and which are therefore “denominated political” and “relate chiefly to injuries done immediately to the society itself.” He continues:
The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Is that not precisely what we see?
Hamilton then argues that only the Senate will “feel confidence enough in its own situation” to try impeachments and “doom to honor or to infamy the most confidential and the most distinguished characters of the community.”
This is all strikingly at odds with any belief that impeachments, as distinct from trials, will be conducted with unquestionable impartiality and must lack merit otherwise.
Reflect in passing that, for the reasons Hamilton gives, the real opprobrium, the dooming to infamy, lies in conviction and not in impeachment. So it would be a mistake to think with John Yoo that the Senate should consider impeachment a sufficient form of censure and decline to convict Trump. Impeachment is not a form of censure, or its final result could not also be a dooming to honor.
And in any case, Trump’s second impeachment, though overwhelmingly favored by House Democrats and opposed by House Republicans, was the most bipartisan presidential impeachment in our nation’s history. That history of course includes the impeachment of Bill Clinton, which most conservatives supported and did not consider politicized. Faction here; faction there; faction, faction, everywhere.
But the fatal argument against the objection from politicization is that it is simply irrelevant. It is an ad hominem attack on the impeachers that distracts pointlessly from consideration of the merits of the impeachment. It is a rank fallacy.
If the House impeaches in a politicized fashion, criticism is deserved. But that criticism does nothing to establish or refute the allegations themselves. These are separate issues.
Consider finally the objection to a yes on Ought (3) that seems to me to have the most merit. It is that the effort might fail, and so backfire; Trump might be acquitted, and so look vindicated (doomed to honor); and this would strengthen rather than weaken him. It is a real concern, and the one that might most have deterred me from voting to impeach him in the first place. But against it, three points.
First, this objection could easily subject the impeachment process to a prisoner’s dilemma that could be overcome with greater boldness. The formation of a consensus is dynamic and can plausibly begin with a few voices or a narrow majority. If the standard for voting to impeach is that one should not do so unless one is sure of conviction, the House needlessly surrenders much of its ability to hold a wrongdoer to account and deter future wrongdoing.
Second, an act-consequentialist point: American history will not end with the impeachment and trial of Donald Trump. There is lasting value in having our lawmakers put themselves on the record with regard to a matter as grave as a failed, presidentially incited insurrection against Congress, calculated to steal a presidential election. It is possible for posterity to learn from a wrong outcome as well as a right one. It would even be possible for voters in 2024 to learn from a failed effort. The claim that acquittal will strengthen Trump is not self-evident to me. Certainly it will enthuse his supporters, but two failed impeachments, the second manifestly justified, might also make voters even more aware of the danger he poses and so move them to oppose him.
Third, the simple rule-consequentialist point that, facing such uncertainties, we should think it good practice for our lawmakers to vote in the way that they believe captures the truth (cf. §14).
But none of that even matters now. What matters now is that there is no turning back. There will be a Senate trial. Even if you opposed impeaching Trump for fear that the effort would backfire, you must acknowledge that the only alternative to acquittal is now conviction. Accordingly, any senator who answers yes to Oughts (1) and (2), and who believes the article of impeachment offers a true description, in any sense, of Trump’s high crimes, should certainly vote to convict, and should do everything possible to convince his or her colleagues to vote likewise.