THE CASE FOR THE IMPEACHMENT AND CONVICTION OF DONALD J. TRUMP

(Reader’s note: This essay is the first in what is intended to be a series of essays laying out my position on what seem to me to be important issues, whether the nature of those issues be political, philosophical, moral, or some combination of each of those things. The issues may address topics timely–as is the case here–or timeless. They are simply one person’s opinion, but my hope in presenting them is to induce the reader to at least reflect on the issue anew while exposing them to a viewpoint they may not have previously considered.)

ARGUING IN GOOD FAITH

Originally, I considered titling this essay “The Constitutional Case for the Impeachment and Conviction of Donald J. Trump”. However, I realized to imply that faithfulness to the Constitution demands one agree with the proposition Donald Trump should be impeached and/or convicted would be to fall into the trap I rail against constantly. We need to temper the natural tendency to cast out opposing views as necessarily springing from pernicious motives. I have read several excellent arguments both for and against the impeachment of our 45th President. The arguments on both sides are made by partisan political actors. After all, we are all partisan. But to acknowledge that fact is not to concede that a legitimate Constitutional case cannot be made for or against impeachment and conviction in this case.

I hope it has been made clear to regular readers of this blog that I am an originalist when it comes to The Constitution. If originalism means anything, it means that the Constitution is not partisan. It does not prescribe a conservative or progressive policy answer. Originalists do not start with a preferred political or policy outcome and then go find the the justification for it in the text. Originalism as a philosophy says our job is to read and interpret the Constitution in the plain meaning of the text. Where there is not plain meaning, we are to use our intellect, available scholarship, and ultimately our informed judgement to discern the original intent of the Founders, wherever that leads. That is my goal here. You must decide whether I fail or succeed. But let’s try to get out of the habit of ascribing bad faith to every argument with which we disagree.

WHAT IS IMPEACHMENT?

The Constitution grants Congress alone the power to impeach. This fact is instructive in and of itself. Despite our more recent tendencies, Congress was always envisioned by the Founders as being the supreme branch of our government. Article I states that the House of Representatives shall have the sole power to impeach and that the Senate shall have the the sole power to try all impeachments. No person shall be convicted without the concurrence of two thirds of the members present. Article II, which generally describes the role of the Executive Branch, specifies that ‘the President, Vice President, and all civil officers of the United States shall be removed from office upon impeachment and conviction of treason, bribery, or other high crimes and misdemeanors’.

The Founders were rightly concerned about abuses of power by the Executive and Judicial branches. The topic of impeachment was discussed often in the deliberations surrounding the adoption of the Constitution. Impeachment is a concept borrowed from English law and was intended as a means by which civil officers who commit criminal acts, engage in conduct clearly unbecoming of their office, or generally abuse their powers can be held accountable by Congress. The clear intent was to provide the people with some means of relief from an official engaged in treachery, corruption, or behavior inconsistent with the faithful execution of their duties or damaging to the institution as a whole. Some members of the convention worried impeachment could be used in purely political manner by Congress, whereby they would simply impeach an official with whom they disagreed politically. The Founders understood impeachment was ultimately a political consideration, not a narrow criminal or civil procedure. That is why they made impeachment moderately difficult and conviction quite difficult. The Founders expected impeachment to be employed more often, as a corrective to executive and judicial officers whose actions endangered the proper functioning of government or threatened its institutional integrity. The reality is Congress has been quite reluctant to employ its impeachment power. There must be quite broad agreement in the House in order to draft and pass articles of impeachment. Even then, the two thirds consent required in the Senate for conviction raises a daunting factor of even broader public sentiment required for success. Politicians, particularly in the House, are naturally wary of being too far out in front of their constituents. The raw political calculus involved works to ensure, as history has proven, the judicious employment of the impeachment power.

WHAT CONSTITUTES HIGH CRIMES AND MISDEMEANORS?

Most of the controversy over impeachment has centered on the clause in Article II, ‘high crimes and misdemeanors’. In arguing in favor of an impeachment provision being included in the Constitution, Alexander Hamilton noted that several state constitutions included the provision of impeachment for ‘maladministration’. Madison, fearing the term may be politically abused, substituted in his final draft of the Constitution another term, borrowed again from the English: ‘high crimes and misdemeanors’. Debate has raged ever since over precisely what this phrase means in the context of impeachment. First, realize that ‘high crimes’ in 18th century parlance means ‘activity by or against those who have special duties acquired by taking an oath of office’. For those of you with a military background, think of it as similar to the oft heard charges in military tribunals of ‘dereliction of duty’ and ‘conduct unbecoming’. I think a clear, concise, accurate, and helpful understanding of the overall meaning and intent of the phrase was summed up in an article in Smithsonian Magazine. The author, Erick Trickey, writes that the Founders, after vigorous debate, ultimately concurred that civil officers, and particularly the President, would be subject to impeachment “for abuses of power that subvert the Constitution, the integrity of government, or the rule of law.”

Some have tried to argue, as recently as during the debates over Trump’s most recent impeachment, that only indictable criminal offenses qualify as impeachable, since any other interpretation would lead to the politicization of the impeachment power. While many brilliant legal minds have argued this way, I believe their interpretation is simply wrong in this case. The records of the debates during the Constitutional convention clearly indicate that the high crimes and misdemeanors phrase was meant to broaden the scope of Congress’ impeachment power beyond the narrower limits of crimes indictable in a criminal court. After listing the crimes of treason and bribery, many of the delegates worried that there needed to be wording that allowed Congress to employ its impeachment power to cover actions that may not be criminal but that were clearly deleterious to the Constitutional order. As noted, mindful of the potential for political abuse, they rejected Hamilton’s suggested term (‘maladministration’) and settled on the now famous, and, I contend, still misunderstood, ‘high crimes and misdemeanors’.

AND NOW FOR THE ISSUE AT HAND…

I believe, without any doubt or hesitation, that in the time between approximately November 4, 2020 and January 6, 2021, Donald J. Trump engaged in actions that qualify as impeachable offenses and therefore should be impeached in the House for those actions.

That being said, the charges drawn up by the House committee and adopted by the House were ill considered and foolish. As former federal prosecutor Andy McCarthy argues in National Review, the charge of incitement to insurrection is “needlessly problematic and provocative”. It allows Trump and his defenders to focus on the legal definition of those words while sidestepping Trump’s undermining of the Constitution and his dereliction of duty.

In the narrow legal sense, Trump could not be convicted in a criminal court of incitement. That requires ‘an unambiguous call for violence’ that creates ‘an imminent threat of violence’. Also, despite the fact that what happened at the Capitol on January 6th was clearly an insurrection, including that charge in the impeachment is particularly galling to many Americans who witnessed countless acts of insurrectionist violence over the past year but were told by many in Congress and the media that those protests were largely peaceful and righteous.

However, even with those reservations in mind, I would still vote to impeach. The articles of impeachment as drawn up are flawed, unnecessarily focused on specific criminal charges, but they still detail an overall pattern of encouraging anti-constitutional actions and a singular, but unforgivable, failure to carry out the duties of the office, both of which are impeachable offenses.

TRUMP’S OFFENSES

As McCarthy notes, Trump should have been charged with Dereliction of Duty and Subversion of the Constitution’s Election Process. Trump’s plain and stunning failure to take any action to defend the Congress, and his own Vice President, who, due to Trump’s own actions (see below) was clearly one of the primary targets of the rioters’ violence, is a clear dereliction of his duty. He blatantly ignored plea’s for action and simply watched passively as the events unfolded before him on the television.

As for the charge of Subversion, it is necessary to provide some context as to Trump’s actions since the election in November. He has consistently peddled numerous conspiracy theories to his followers, contending that he was the true winner of the election and that they must take action to #stopthesteal. All of these accusations have been proven false or brought into serious doubt, as even Trump’s own Attorney General at the time, Bill Barr, told him in no uncertain words. Yet he has continued to recklessly promote them as fact to his followers. In the days leading up to the rally at the Capitol, he consistently pressured his Vice President and members of Congress to violate their 12th amendment duties to certify the election. He and his supporters touted the rally on the 6th as a way to further ramp up the pressure on Pence and the other lawmakers and framed it as their last chance to “stop the steal”.

TO CONVICT OR NOT TO CONVICT

The decision to convict the President lies with the Senate. Some have protested that the timing of the impeachment, so close to the end of Trump’s legal term of office, makes it impossible to conduct the necessary trial and therefore his impeachment is moot. I disagree. Even if the trial and conviction were to extend beyond Trump’s term of office, I think it should be conducted and he should be found guilty. Even with my reservations about the wording of the actual articles that were charged, I would still vote to convict.

To some, impeaching and convicting an official after he has left office makes no sense and would be counterproductive. However, I believe the intent of the impeachment power goes beyond the specifics of one set of circumstances. There is actually precedent in several state constitutions for impeachment of civil officers after their time in office. This tells me that impeachment was always understood as more than a process to identify or punish the particular unbecoming acts, criminal or otherwise, of particular officials. Impeachment, and ultimately conviction, involves the protection of the integrity of our institutions and the assurance of their continued survival and flourishing. It is intended to send a message to the accused, but also to the public, that behavior antithetical to the norms of good government and society as a whole cannot be tolerated, lest we risk the dissolution of our Republic.

Impeachment is a serious matter in which serious, thoughtful people can disagree. I believe in this case, Donald J. Trump was plainly derelict in his duties during the riot at the Capitol on January 6th, 2021, and wantonly and dangerously subversive of the Constitutional order since at least November 4th, 2020. He therefore is deserving of his impeachment in the House. After a trial in the Senate, he should be convicted and suffer the remaining penalties prescribed in the Constitution: disqualification from holding any public office in the future.