Thursday, January 14, 2021

Thinking Through Trump Impeachment 2.0

Stephen Griffin

There are a number of constitutional questions raised by the second impeachment of President Trump, including whether it is permissible to try a president after he has left office.  For the moment, however, I’m going to set this issue aside to engage with the basis for the impeachment.  But first, some general observations.

I’ve written recently about the history of presidential impeachment.  In preparing for my Constitutional Law class this semester, I was going back over my notes in light of recent “insider” accounts of Trump impeachment 1.0, the Ukraine impeachment.  Doing that gave me pause in terms of understanding the dynamics in the House of Representatives.  It occurs to me I had been implicitly assuming the viability of the Watergate model of impeachment in far more polarized times.  The Watergate model, articulated by scholars like Charles Black along with many members of Congress at that time, was that impeachment should not happen unless it had bipartisan support.  This model was used by scholars (including me) to condemn the Clinton impeachment.  I now think further analysis would show that in the far more polarized environment that came to dominate Congress in the 1990s and after, the orientation of House members shifted in a way that is defensible constitutionally.

In this environment, when House members learned they had “sole” power of “impeachment” leading to a Senate “trial,”  what they heard most was “sole.”  That is, they had exclusive jurisdiction over rendering judgment on a president.  It thus occurred to them that if they did not exercise their sole power, regardless of the anticipated outcome in the Senate, they could be accused by their polarized constituents of failing to perform a signal constitutional duty.  Further, as the House Judiciary Committee Staff Report in support of Trump impeachment 2.0 makes explicit, failing to resist a president exercising power in dubious ways might well establish a “precedent.”  That is, if they failed to act, they would automatically hand arbitrary power to a president in the future.  In the current context, of course, that would be disastrous.  If there were no impeachment, future presidents could regard Trump’s actions as licensing attacks on the legitimacy of the election process.

This logic led the House of Representatives the Clinton and Trump cases to proceed forward with all possible speed.  Damn the torpedoes!  After all, if setting “precedents” is what you care about, it doesn’t matter what the Senate does.  I’m afraid however obvious this looks now, it didn’t seem obvious to me in analyzing the Clinton or first Trump impeachment.  Now to break down this chain of logic, one would have to show that in politics, “precedents” don’t work that way, at least not always.  But that would be an uncertain argument compared to what’s right in front of members of Congress, which is that their lives were put in danger and the constitutional process of counting the electoral votes was delayed, not to mention the potential for future violent action.

This brings me to the substance of the sole article of impeachment, “Incitement of Insurrection.”

I doubt I’m the only legal academic who cringed hearing that statement of the case.  The phrasing could suggest they are accusing Trump of a crime, a crime that has narrow grounds due to first amendment protections.  Of course, that’s not what is really going on.  As the House argued in impeachment 1.0, whether Trump committed a crime is irrelevant to the determination of the constitutional standard.  But this may give Trump’s defenders an extra argument they shouldn’t have.

What should Trump be accused of?  The third and fourth paragraphs of the article of impeachment are the most promising, because they at least introduce the topic of Trump’s entire pattern of conduct, both before the November election and after, attempting to cast doubt on the legitimacy of the election.  I say “attempting,” but it is important to keep reminding ourselves that for a substantial fraction of the American people, Trump succeeded.  He did cast doubt on the legitimacy of the election for millions of Americans.  And for that sustained effort, which included attempting to intimidate election officials, he should most definitely be impeached, as it is a violation of his oath of office, to preserve, protect and defend the Constitution of the United States.

That said, Trump should not be let off for his conduct on January 6.  It is just that the rally was part of a pattern of conduct.  Fortunately, the House Report is clear on this point and by the time of the trial, much more evidence will become available documenting the various links between Trump’s plan for undermining the election, his pattern of conduct after the election, and the terrible consequences of his conduct for Congress and American democracy.  Some have made the point that the electoral vote count went forward and was completed.  I’m afraid I see that as a fairly minor point, given the demons Trump let loose.  His conduct over the past few months was like watching a litany of worst case scenarios for how the Constitution can be undermined by a president.  Trump has made himself into a human equivalent of the “bloody shirt” Republicans waved against Democrats after the Civil War.  Unless Republicans separate themselves from Trump and his legacy, the bloody shirt may come back to haunt them as a party.

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