Life would certainly be easier if challenges came at us in a vacuum.
The question pressing the nation right now is, of course, whether President Trump should be impeached and removed from office. When dealing with any significant, complex question, it is human nature to focus on it as though nothing else in the world were going on. Unfortunately, life doesn’t work that way.
Trump was hellbent on stopping Congress from performing its constitutional duty to count the sovereign states’ electoral votes. Toward that end, he pushed a theory that would have destroyed the American system of government – namely, that the vice president had authoritarian power to ignore the election and decree who would be president. To pressure Mike Pence and Congress to accept and implement this anti-constitutional theory, Trump incited a throng of supporters to march on the Capitol.
Even if we stipulate that he wanted political pressure not violence, it was easily foreseeable that violence would break out. The result was a storming of the Capitol, and a melee in which five people died, including a Capitol police officer killed by a rioter.
This was an atrocity of historic dimension. If, in the present context, the only question were whether there had been an impeachable offense that deserved condemnation, the answer would emphatically be yes.
The fact that the president could not be criminally convicted of the federal offense of inciting violent crime is irrelevant to the issue of impeachment. The latter is directed not at indictable offenses but at political offenses that elucidate unfitness for an office of public trust.
Still, our context is complicated. It involves much more than the matter of whether Trump deserves impeachment and removal.
Most obvious is the issue of time. There are only nine days remaining in the president’s term. It is not enough time to execute a credible process of impeachment and removal.
It would be rational to start down that road only if Congress had concluded that the nation could not tolerate one more minute of Trump’s presidency. But House Democrats, the main proponents of impeachment, haven’t acted that way. They went home after the siege. They did not stay in town or rush back. At this point, they could not reconvene before Tuesday – probably later. More than a week would have lapsed. How could they credibly claim a need to dispense with all due process and rush to judgment when they have spent days sitting on their hands as if there were no emergency?
Then there are the Senate rules. Because the upper chamber is in recess until Jan. 19, it would take unanimous consent to reconvene. At least one senator would object, so that’s a non-starter. Practically speaking, even if the House rushed through the adoption of impeachment articles and appointed impeachment managers, a trial could not commence until right before or, much more likely, after Trump’s term expires at noon on Jan. 20.
There is dispute among legal experts regarding whether an official may lawfully be impeached once out of office. I am in the camp that believes the Constitution permits this. As recounted in my 2014 book about impeachment, “Faithless Execution,” among the models the Framers considered in crafting the impeachment remedy was Parliament’s contemporaneous impeachment of Warren Hastings, Britain’s former governor-general of Bengal, who was no longer in office at the time. Moreover, the constitutional penalty for impeachment includes “disqualification from holding high office.” Ergo, it’s not as if removal from office is the only germane matter. There is good sense in impeaching an unfit official to ban him from seeking office in the future.
All that said, the fact that something may be technically legal does not necessarily mean it should be done.
Though I disagree with it, there is an appealing legal argument that once an official is already out of office, the issue of removal – which is the central point of impeachment – is moot. That would be a principled reason to vote against removal even if a lawmaker believed Trump’s conduct deserved condemnation.
What about disqualification? Sure, we’ve just noted there’s a plausible legal justification to impeach for that purpose. As a practical matter, though, is it really necessary to impose a legal ban? If, after this performance, the country would even think about returning Trump to the presidency, then we have deeper problems than any parchment disqualification can cure.
But let’s leave philosophical considerations aside and get back to the real world. Even though he would be out of office, Trump’s impeachment would surely be deemed a presidential impeachment – there would be no other reason to have it, and it would be based on his failure to perform the duties of the presidency. Under Senate rules, a presidential impeachment largely shuts down all other business until the trial has been completed.
And remember: If the House had rashly carried out a no-due-process impeachment investigation, there would be pressure on the Senate to ensure that the trial was a model of due process. With Trump already out of office, there would be no excuse to rush things in order remove him.
Here is the problem: President-elect Biden’s new administration would be taking power on Jan. 20. None of its Cabinet nominees has yet been confirmed, to say nothing of the hundreds of other sub-cabinet level officials who make the government function on a daily basis.
Furthermore, we are in the middle of a pandemic and a time of great economic stress for millions of Americans. As illustrated by Russia’s recent cyber-espionage against government departments, our adversaries are testing us. China, Iran, North Korea – they are all poking and prodding, calculating whether we are too unstable, at the moment, to defend America’s interests, making the world increasingly dangerous.
In sum, this would be a terrible time to suspend the business of government, and to put a new administration way behind in its capacity to stand up and function. And we’d be doing it for no better reason than to impeach a president who is no longer president.
Another consideration: Because of the president’s demagogic portrayal of the election as rigged, millions of his supporters – not 74 million, as his diehards claim, but certainly some not insignificant percentage of that – are convinced the election was stolen. To impeach him now would fan the flames of anger when our imperative should be to bring the temperature down.
If the president were months rather than days from the end of his term, his supporters’ outrage would not be a good reason to refrain from impeaching him. But given that he would already be gone before he could conceivably be tried by the Senate, it would be gratuitous to invite further strife in our deeply divided country.
There are ways other than impeachment for Congress to express righteous condemnation over the president’s role in the atrocious events of last week. Clearly, a full-throated, bipartisan censure is warranted. Nevertheless, contrary to what he seems to believe, our country is bigger than Donald Trump. He is about to be yesterday’s news. We should not hold up today’s essential business on his account.