It is time to impeach President Donald Trump again, and this time, it might even result in conviction. And it is necessary to protect the future of our country.
Trump’s commutation of Roger Stone’s 40-month sentence is his latest assault on the rule of law. While other presidents have sometimes granted pardons with apparent political motivations, the Stone clemency may be the first for an offender whose crimes involved the president himself.
In a recent article for Just Security, Sam Berger argued why clemency for Stone would be so egregious and even criminal. Stone was convicted of lying to Congress, tampering with a witness, and obstructing an investigation into Russian interference in the 2016 election to help the Trump campaign. Stone concealed his role to coordinate campaign messaging with WikiLeaks’ dissemination of email messages stolen by Russia from Trump’s political rivals. Recently released redactions from the report by Special Counsel Robert Mueller indicate that a more forthcoming Stone might also have been able to tell Mueller whether Trump had lied to him when Trump said in written answers that he did not recall discussing WikiLeaks with Stone. Such lies by Trump would add to the other evidence detailed in the Mueller Report that the President obstructed justice by interfering with the Special Counsel’s investigation. As Judge Amy Berman Jackson stated at the sentencing hearing, Stone “was not prosecuted for standing up for the president; he was prosecuted for covering up for the president.” Stone himself conceded as much in recent comments when he publicly stated that Trump “knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.”
The president’s pardon power is a broad one, but, like all powers, it may not be abused. The pardon power includes the power to grant commutations, or reductions in sentence, as Trump did here. If Trump granted clemency to Stone to prevent investigators from learning the truth about the Trump campaign’s misconduct or Trump’s own lies, then this abuse of power is the kind of high crime or misdemeanor that constitutes an impeachable offense. As James Madison said during debate in support of the pardon clause in the Constitution:
“If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him .…”
In addition to holding Trump accountable, an impeachment inquiry could also identify other White House officials who aided and abetted Trump in his abuse of power. Exposure of their misdeeds could help prevent them from advancing in government in the future.
Is it too close to the election to impeach Trump? No. Most of us think of impeachment as a way to remove a president from office. But conviction after impeachment also brings with it another important remedy. Article I, Section 3 includes a provision that says the consequences of impeachment include “disqualification to hold and enjoy any office . . .” It is unclear whether this remedy is automatic upon conviction or requires a separate vote, but regardless, Congress has the power to bar an impeached and convicted president from ever serving in office again.
Why is this remedy important? Because even if Trump loses the election in 2020, he could run again in 2024. The 22nd Amendment limits presidents to two terms, but nothing says those terms must be consecutive. Grover Cleveland, for example, served as our nation’s 22nd and 24th president, winning the presidency in 1884 and again 1892 after losing his 1888 reelection bid to Benjamin Harrison. And even if Trump does not run again himself, he could still have political influence in the Republican party to advance his divisive agenda, using his platform on Twitter to serve as a sort of “kingmaker.” In addition to Democrats, even establishment Republicans might want to prevent that from happening.
Trump appears to be headed for defeat in the November election. Following his botched handling of the coronavirus, his heavy-handed response to unrest after the killing of George Floyd, and the tumbling economy, recent polling shows presumptive Democratic Party nominee Joe Biden with a double-digit lead over Trump. As a result, House Democrats may believe there is no need to impeach Trump, when his term is likely to end in just a few months anyway. After all, his impeachment over his dealings with the government of Ukraine earlier this year ended with a thud when the Republican-controlled Senate voted to acquit him largely along party lines. It is difficult to imagine that House impeachment managers could muster the two-thirds vote necessary to convict Trump now.
But even if Trump can’t be impeached and convicted today, how about on November 4? Even though Congress would still have the same party make-up until January, if Trump loses in a landslide, the rats are likely to run from the ship. Republicans who have feared the consequences of incurring the anger of a vengeful Trump may have a very different perspective after he loses the election. His juvenile derogatory nicknames will seem less harmful once he is defeated. With Trump a lame duck and unable to control the political fortunes of members of Congress, Senate Republicans may feel free to vote their own conscience, or even find themselves under political pressure to hold Trump accountable for his misconduct.
It might be strategically beneficial to delay impeachment of Trump until January 3, when the 117th Congress is sworn in, on the theory that the new Senate will likely contain more Democrats with a Democratic Majority Leader. With that composition, and a fairly run proceeding this time, the Senate may be more inclined to vote to convict Trump. But those lawmakers will take office only 17 days before Trump’s term expires on January 20, giving them a very short window to conduct an impeachment trial, deliberate and vote, a risky proposition. If, however, Trump should cling to some notion that the election results were rigged and refuse to leave office, impeachment and conviction would be a way to get him out when his term expires.
If the impeachment or trial were to extend beyond January 20, it would likely be too late to be effective because the expiration of Trump’s term would appear to render the proceedings moot. Some have suggested that the House may impeach, and Senate convict, former presidents. Just recently, Rep. Matt Gaetz of Florida has called for the impeachment of former President Barack Obama. But the language of the Constitution suggests otherwise, providing in Article II, Section 4 that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment . . . ” Use of the word “the” as opposed to “a” suggests that impeachment and removal are reserved for the sitting president, not a former president. Once Trump leaves office on January 20, it would be too late to impeach and convict him.
If, however, the limited purpose of the trial is not to remove Trump, but to bar him from seeking office in the future, then mootness is no longer an issue. Trump could be impeached before his term expires on January 20, and then convicted even after leaving office, though the legality may be subject to challenge.
It is impossible to know where the country will be in 2024. Perhaps we will have fully recovered from the COVID pandemic, achieved racial harmony and the economy will have rebounded. It is also possible that Trump will use his defeat to exploit divisions and sow greater discord in our country to pave a way for his return to power. Impeachment is one way to prevent that from happening.
Impeachment remains an important check to remove a president from office, but in Trump’s case, it may be even more important to prevent him from coming back from the political graveyard.
Editor’s note: Readers may also be interested in Michael J. Gerhard, The Constitution’s Option for Impeachment After a President Leaves Office (January 8, 2021)
Images: Drew Angerer/Getty; Alex Wong/Getty