Three presidents have been impeached. None has been convicted and removed from office. No president has been impeached twice. President Trump should be impeached for a second time, and this time the Senate should convict him of high crimes and misdemeanors. This is not, if it ever was, a partisan issue. I have come to this conclusion as a conservative-leaning libertarian and member – such as Republican Sens. Ted Cruz of Texas and Josh Hawley of Missouri – of the Federalist Society, and having spent much of my academic career studying both originalism and impeachments. Those who say they care about faithfully preserving constitutional principles and sustaining the workings of the Madisonian system of checks and balances must be willing to adhere to those commitments even when they are politically inconvenient.
Protesters supporting President Trump break into the U.S. Capitol on Wednesday. The president has shown no remorse for setting the violence in motion; instead, he called the events the inevitable result of a stolen election. Win McNamee/Getty Images via TNS
I do not come to this lightly. During the Ukraine controversy, I thought there might still be options other than impeachment for curbing the president. Such steps were never taken, and the president was only emboldened by his acquittal. His recent actions have been far worse, and the crisis is more pressing.
As numerous current and former government officials have recognized, the president bears a substantial share of the responsibility for the riot that engulfed the U.S. Capitol building. In a statement, Sen. Mitt Romney, R-Utah, accurately called it “an insurrection, incited by the President of the United States.” Conservatives and liberals should be able to unite as one in denouncing the encouragement of a violent attack on the national legislature. They should be able to take immediate action when it is the chief executive of the federal government who is the one encouraging such violence.
There are certainly risks with rushing forward with an impeachment. A second failed impeachment would only embolden Trump and his supporters again, sending the message to the American people that Congress will not take difficult actions even to defend its own house from mob violence. So far, a conviction seems unlikely but not impossible: Finally realizing the damage that the president has done, Republicans in the Senate are breaking with him. Just before the mob attack on Congress, Senate Majority Leader Mitch McConnell, R-Ky., warned that what Trump was urging would “damage our republic forever.” The Republican Senate overwhelmingly rejected Trump’s bid to overturn the results of the presidential election, with even Sen. Lindsey Graham, R-S.C., a close ally of Trump, declaring that “enough is enough.”
Others, including Sen. Pat Toomey, R-Pa., have placed the blame for bloodshed in the Capitol on “a demagogue” who “chose to spread falsehoods and sow distrust.” Given that political support for the president is dissipating even within the administration itself, as evidenced by the resignations of the first lady’s chief of staff and the secretary of transportation (Elaine Chao, McConnell’s wife), a sufficient number of Republican senators might understand the virtue of decisively separating themselves from Trump and Trumpism.
Because Congress is adjourned until Jan. 20, Sen. Chuck Schumer, D-N.Y., has called on the House and the Senate to reconvene to begin the impeachment process. As the gravity of this week’s events sinks in, support for that proposal may grow. (Some scholars also believe a president might be impeached after he leaves office; if that should happen, Trump would at least be barred from holding future offices of trust.)
From before he was elected president, Trump spread conspiracy theories (including birtherism) and subverted faith in American democratic institutions. But as his own re-election approached, and especially in the weeks since he lost that bid for re-election, the president has recklessly escalated his public attacks on our electoral processes. Finally, when the counting of the electoral ballots and the formal announcement of the victory of President-elect Joe Biden was at hand, Trump’s inflammatory rhetoric landed in a tinderbox. When he sent that crowd to march to the Capitol, telling it that “you’ll never take back our country with weakness,” violence was a predictable result.
The impeachment power is available to Congress to address the possibility of a federal officer, particularly the president, posing an immediate threat to the safety of the country. Trump made clear that he poses such a threat. A sitting president who would incite a mob to lay siege to the chambers of Congress; disrupt the counting of the electoral votes that would initiate the transfer of presidential power; persist in refusing to concede his own electoral loss, and persist in telling his supporters that American elections are rigged threatens the continuity and stability of democratic government.
The president has shown no remorse for his actions (instead, he called the events the inevitable result of a stolen election), and there is no reason to think that he would not do the same again. With a speedy impeachment and removal, Trump would be disarmed and safely isolated. Congress would be sending the message to future political leaders, and to the American citizenry, that such behavior is intolerable. The impeachment power allows Congress to define and enforce the outermost boundaries of acceptable political behavior; it should be an uncontroversial proposition, crossing party lines, that inciting violence against the legislature is beyond the pale.
The president might not have committed a criminal offense in the run-up to the riot. That judgment is for the criminal justice system to make after he leaves office. The president might not have abused his formal powers of office with his speeches and his tweets or seized powers that he does not lawfully possess. Nonetheless, his offenses are of a “political character,” of the sort that 19th-century Supreme Court Justice Joseph Story said the impeachment power existed to address. They threaten the workings of American democracy. The president has, in the words of Alexander Hamilton, acted in grave “violation of some public trust.”
Impeachment is often a slow process, but it need not be. The president’s actions were done in public and are plain to all. The House members do not need to engage in an investigation of the facts; they merely need to evaluate the facts that are already before them. The Senate must offer the president an opportunity to defend himself from the charges contained in the articles of impeachment, but a Senate trial need be neither delayed nor long. The president could be impeached, convicted and removed from office in a day.
Many will be tempted to just wait out Trump’s final days in office. But this week’s events demonstrate that he cannot be safely trusted to continue to exercise the powers of that office for even another week. The 25th Amendment, which also allows for the removal of the president, is not the appropriate remedy, because the problem is not that the president is incapacitated. The problem is that he is a danger to the republic. Only the House and the Senate acting through the impeachment power have the authority to make that judgment.
The dangers of a failed impeachment are clear. If the Senate votes not to punish a president who revels in an assault on the Capitol, future demagogues will take note. If the votes simply aren’t there – a sad prospect – it might be better to keep a watchful eye over the sitting president, and perhaps condemn his actions through a resolution of censure, rather than once again tell him that he is untouchable.
After the Trump presidency, it will be a long and difficult task to restore balance and integrity to our constitutional system. That begins by emphatically reaffirming the most basic expectations of how a president should conduct himself. The power of impeachment is a tool for reestablishing constitutional principles that have come under assault. They are under assault now.
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