We are, it seems, hurtling toward impeaching Donald J. Trump for a second time in thirteen months. It is entirely right that he should be impeached again, but in the whirl of the past week’s events, there has not yet been a careful analysis of the constitutional basis for doing so. I hope the following can fill that gap.
In brief, the case against President Trump rests on his conduct since the presidential election of November 3, 2020. Since that day, he has – consistently, unceasingly, and deliberately – cast doubt on the results of a free and fair electoral contest that, under the rules prescribed by the Constitution and laws of the United States, he lost. Critically, it is now clear that he intended not merely to sow distrust for political purposes (or as a ploy to raise money for his post-presidential life), but to induce state officials and, ultimately, either the Vice President or Congress to nullify the results of the election and keep him in power. His efforts culminated in active incitement of a mob to intimidate Congress into refusing to perform its constitutional obligation to certify the election of Joseph Biden as the next President of the United States.
Although Trump partisans will make the effort, no objective observer can deny that these are the facts. The questions considered here are whether this conduct constitutes a proper constitutional ground for impeaching President Trump, and whether it makes sense to impeach him so close to the end of his term.
The Legal Case for Impeachment: Subversion of the Constitution
As by now a weary country knows, the constitutional standard for impeaching a president is “Treason, Bribery, or other high Crimes and Misdemeanors.” Unlike the Ukraine affair that led to Trump’s first impeachment, the present case does not involve “bribery.”
Some might call Trump’s recent conduct treasonous, and in a colloquial sense it has been. But for constitutional purposes the term “treason” is narrowly defined as “levying War against [the United States], or … adhering to their Enemies, giving them Aid and Comfort.” Some among the organizers of last week’s assault on Congress might actually fall within this definition if, as been suggested in some media reports, there were plans to seize, harm, or even kill legislators and incite wider violence against the government. But there is, at least to date, no evidence that Trump was privy to the violent particulars of these mad plans. In any event, inserting the inescapably incendiary term “treason” into the conversation is unnecessary and likely to distract attention from the irrefutable case for impeachment on other grounds.
“High crimes and misdemeanors” is an ancient term of art, adopted by the Framers of the American Constitution from British parliamentary practice. It includes some kinds of criminal conduct, but does not require commission of an indictable crime. This point was doggedly disputed by Trump’s adherents a year ago, but as I and many others have repeatedly demonstrated, this is not a defensible constitutional proposition.
Historically, “high crimes and misdemeanors” has been interpreted to include a variety of serious executive misconduct, including some kinds of ordinary personal crime; official corruption; egregious instances of incompetence or neglect of duty; abuse of power; betrayal of the nation’s foreign policy interests; and, centrally for present purposes, subversion of the Constitution itself. Indeed, impeachment was invented by Parliament in the fourteenth century as a defense against executive (which then meant royal) assaults on British constitutional order. By the 1600s, a common charge in the great state impeachments pitting Parliament against the ministerial agents of arbitrary royal power was that the defendant “endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government.” Throughout four centuries of parliamentary usage before impeachment migrated to our shores, impeachment’s indispensable function was to protect the British constitution against the chief executive’s will to power.
At the Constitutional Convention, George Mason proposed adding the phrase “high crimes and misdemeanors” to treason and bribery as grounds for impeachment precisely because he feared that those two offenses would not reach “attempts to subvert the Constitution.” Alexander Hamilton’s widely quoted observation in Federalist 65 that impeachable offenses are “of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself” was a shot at the same target. The “society” of which Hamilton wrote was the political society the new Constitution would shape and govern. Impeachment was inserted into the Constitution as a legislative defense against a president who threatens constitutional order.
The idea that “high Crimes and Misdemeanors” includes subversion of the Constitution is reflected repeatedly in the work of the House Judiciary Committee that approved the articles of impeachment against Richard Nixon which prompted his resignation. The universally acclaimed committee staff report rejected the idea that indictable crime was necessary for impeachment and concluded that:
Impeachment is a constitutional remedy addressed to serious offenses against the system of government. … [Impeachable offenses] are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself…
The language of the Nixon articles of impeachment approved by the Judiciary Committee endorsed this view. Article I alleged multiple instances of obstruction of justice, but made the broader assertion that these amounted to “act[ing] in a manner contrary to his trust as President and subversive of constitutional government.” Article II alleging a variety of particular abuses of presidential power, and Article III alleging defiance of congressional investigative authority over impeachable conduct, both concluded with the same assertion that these were “subversive of constitutional government.”
At the core of the American Constitution and of American constitutionalism as a way of political life is electoral democracy. The legitimacy of the national government depends on the continual reaffirmation through elections of the consent of the governed. Whatever the peculiarities (and undoubted deficiencies) of the processes prescribed by the Constitution for translating the votes of the people into a choice of the person who is to be president, the choice, once made, is sacrosanct. To contrive at undoing it – whether by promulgating and endorsing baseless allegations of national fraud, pressuring state officials to overturn lawful and accurate election results, or summoning a mob to intimidate Congress – is to thrust a knife into the vibrant heart of the American idea and the Constitution that governs it.
When a president does not one but all three of these things as part of a conscious effort to hold power in defiance of the will of the people – setting at naught the authority of the states over their elections, the powers of Congress as a coordinate branch of government, and the plain commands of the Constitution and statutes of the United States – that can be no other than a “high crime” requiring impeachment, conviction, removal, and disqualification from ever again holding national office.
The Proper Scope of the Articles of Impeachment
In framing the text of articles of impeachment, the House will be best served by language that does not focus too narrowly on the events of January 6, 2021 – Trump’s rally, his call for a march to the Capitol Building, and the resulting deadly riot. While those were the horrific culmination of a persistent malign course of presidential conduct, it is the course of conduct in totality that makes impeachment not merely constitutionally permissible, but imperative.
Focusing too narrowly on Trump’s public words on January 6 alone would permit diversions like the claim made by several academics that Trump’s speech cannot be the basis for impeachment because it is protected by the First Amendment. That argument is risible on its face, and has been amply rebutted by distinguished commentators including Jonathan Adler, Ilya Somin, and former judge Michael McConnell. Regardless, the importance of the January 6 speech for impeachment purposes is not whether Trump specifically intended to advocate a physical invasion of the Capitol, but whether Trump’s speech was one part of an ongoing effort to induce Congress to overturn the results of a legal election.
Of course, the fact that Trump’s language during that speech and earlier could fairly be construed (and was by many in the throng) as an invitation to violent action, the fact that it did produce death and destruction in the Capitol building, and the fact that such a result was certainly foreseeable to Trump strengthens the case for impeachment and removal. For a president, self-aggrandizing reckless disregard of the obvious risk of mob violence is a removable offense in itself.
Furthermore, any articles of impeachment must be broad enough to cover Trump’s later, post-speech behavior on January 6. Trump would certainly have known about the assault on the Capitol the moment it occurred. Indeed, it has been reported that he watched it on television “bemused.” According to Senator Ben Sasse, White House aides reported that at some stages of the assault, Trump was “delighted” and “excited” by what he saw unfolding at the Capitol, and “confused about why other people on his team weren’t as excited as he was.”
Trump took no immediate steps to send aid to the beleaguered Congress, supposedly “resisted and rebuffed” calls to authorize deployment of the National Guard, and reportedly agreed to do so at last only at the impassioned urging of staff. By then, it was far too late. The attack on the Capitol began around 1:50 pm. The rioters breached the building at 2:15 pm. The first outside help came from District of Columbia police. But DC National Guardsmen, the federal body under the control of the President and the Defense Department, did not arrive for two hours after Trump reluctantly agreed to their deployment. Unlike several of his prominent supporters, Trump failed to take even the rudimentary step of promptly going on television and Twitter to demand unequivocally that the rioters, who were explicitly there on his behalf, withdraw immediately.
Malicious inaction – through a conscious refusal to protect the national legislature while it was under attack from a violent mob of his own supporters – would be an impeachable “high crime” even if Trump had done nothing to unleash the furies.
The Pragmatic Case for Impeachment
In sum, the factual and legal case for impeaching Donald Trump for all his anti-democratic conduct since November 3 is crystal clear. But one might ask: Should it be done now, in the final fortnight of his expiring term? The power to impeach a president does not expire with the conclusion of his or her term in office, but an entirely lawful impeachment could, if not tightly managed, run long. The only plausible case for not acting is the risk that an impeachment proceeding might drag on so long that it would consume, for weeks or months, the time and energy of the new Congress and the incoming Biden Administration at a moment when the country faces the daunting and interlocking challenges of responding to the COVID plague, shoring up the economy, and repairing the damage Donald Trump has inflicted on the fabric of government in the past four years.
I have considered that possibility carefully. Two points convince me that this potential delay is not a compelling reason for inaction. First, Congress can, when it wishes, move at more than sufficient speed, and can even do more than one thing at the same time. It seems plain that the House will approve articles of impeachment before the end of next week. Although Senate Majority Leader Mitch McConnell has signaled that he will stall any Senate trial until after the Biden inauguration, thereafter, practical control of the Senate’s agenda will pass to the Democrats, who have every incentive to move expeditiously.
Second, and far more importantly, Donald Trump consciously, methodically, unrepentantly set out to reverse the legal results of an American election and make himself – quite literally – an unelected autocrat. The fact that in the end he failed, albeit at the cost of lives and what may prove to be an enduring rupture of the American civic fabric, is of no moment whatsoever. He remains a mortal danger to this Republic so long as he is either in office or has the potential to return to power. The Framers limited the consequences of impeachment and conviction to two: removal from office, and where the Senate approves it, permanent debarment from “any Office of honor, Trust or Profit under the United States.”
Donald Trump is the dangerous demagogue for whom the Framers created impeachment and the attendant penalty of permanent disqualification from federal office. Both simple justice and the safety of American democracy demand that Congress at least try to convict him of impeachable offenses and banish him from our politics.