Thursday, January 21, 2021

Donald Trump’s second impeachment is not about impeachment

Guest Blogger

Miguel Schor

Donald Trump has the rare distinction of being impeached twice. His second impeachment was for inciting a crowd to attack the Congress to interfere with the certification of the electoral votes on January 6, 2021. It is clear that members of Congress as well as the public were shaken by these events. The pictures of rioters attacking and vandalizing the Capitol are deeply jarring. They undermine the notion that we are an exceptional democracy.

Not surprisingly, these events led to a considerable outpouring of commentary. The critics of impeachment argue that the Senate may not vote to remove Trump from office after Biden is sworn into office. They also contend that Trump’s speech on January 6 is constitutionally protected. The supporters of impeachment argue that the Senate may vote to disqualify Trump from running for the presidency again even if he is no longer President. They also argue that impeachment is a political, not a legal, judgment. Congresswoman Liz Cheney succinctly summed up this position in defending her vote to impeach Donald Trump: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”

Although the supporters of impeachment and disqualification have the better argument, the debate fails to grasp the real issue Americans are facing. The first impeachment was a classic example of impeachment as a constitutional tool aimed at removing a bad actor from the democratic scene. The second impeachment, on the other hand, is obviously not aimed at removing Trump from office. It seeks instead to change the background assumptions, or constitutional culture, that inform democratic competition. It aims at changing the hearts and minds of American citizens. Donald Trump’s second impeachment, in short, is not about impeachment, but about what kind of democracy we will live in.

The Trump presidency presented a vision of how that office should operate which broke sharply with deep-rooted constitutional understandings. At the GOP convention in 2016, Trump was cheered when he claimed that the nation was beset by crises and said “I alone can fix it.” This is a serious, albeit deeply flawed, claim. He made the case that Americans should embrace a pathological form of democracy, long familiar to unexceptional, flawed democracies around the globe. In such democracies, elected leaders govern by relying on executive orders, by insisting on personal loyalty from subordinates, by undermining institutions and expertise, by inventing and employing emergencies to mobilize supporters and exhaust opponents, and by undermining elections.

The political dichotomy between Donald Trump and Joe Biden is stark. Trump is a political neophyte who had little understanding of the institutions he sought to bulldoze. Joe Biden, on the other hand, has one of the deepest resumes in American political life. Unlike Trump who invented emergencies, moreover, Biden inherited a number of real ones.

Joe Biden ran on a different vision of the presidency. His campaign slogan was that the election was a battle for the soul of America. He argued to the American people that we need institutions to govern and we need experts to help us get through the multiple crises the nation faces. He made the case to the public that presidents should govern, not engage in ceaseless political warfare. Biden’s vision of the presidency is an institutionalist one rooted in our history and our Constitution.

These two visions of the presidency and of American democracy collided on January 6, 2021, when a mob sought to prevent the most basic institution of any democracy--free elections--from working. The House was right to impeach Donald Trump even though he will shortly be out of office. Nancy Pelosi understood that this was a critical moment in our democracy. The second impeachment of Donald Trump places squarely in front of the American people the question of which sort of constitutional democracy they wish to live in.

A constitutional culture does not emerge in a discrete moment of political time neatly wrapped in parchment. Rather it is the product of political struggle and occasionally violence. The big ideas that animate our Constitution are ceaselessly renegotiated in ways large and small. There are moments in time, however, when deep change becomes possible. These are, not surprisingly, moments of political and constitutional drama.

We are witnessing a constitutional inflection point unfold. Republican elites understand the stakes as they fight a civil war as to the direction of the party. Business interests understand the stakes as they seek to distance themselves financially from Trump and from the elements of the Republican party that supported the attempted presidential auto-coup. Social media companies understand the stakes and have limited Trump’s ability to spread inflammatory disinformation. And ordinary Americans understand the stakes as they argue over the consequences of the mob attack on the Capitol. The debate roiling the nation will hopefully blossom into a widely shared set of beliefs that will provide a firewall that will prevent another demagogue, a Trump 2.0, from ever again being elected president of the United States.

Miguel Schor is Professor of Law at  Drake University School of Law. You can reach him by e-mail at miguel.schor at

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