Harvard law professor Laurence Tribe, author of “To End a Presidency: The Power of Impeachment,” writes at the Washington Post, Yes, Congress should impeach Trump before he leaves office:
As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final days in office, two questions loom large: Did Trump commit impeachable offenses? And does it make sense to impeach even though the Senate may not try and convict him before he leaves office on Jan. 20? The answer to both questions is yes.
Trump spent months convincing his followers, without factual basis, that they were victims of a massive electoral fraud. He summoned them to D.C. for a “wild” protest as Congress met to certify the election results. He then whipped them into a frenzy and aimed the angry horde straight at the Capitol. When Trump’s mob breached the building, he inexcusably dawdled in deploying force to quell the riot. And when he finally released a video statement, it only made matters worse.
Simply put, Trump knew perfectly well that his rally on Wednesday was a powder keg of his own creation. But he gleefully lit a match and tossed it at Congress.
The article of impeachment circulated Friday by Democratic Reps. David N. Cicilline (R.I.), Jamie B. Raskin (Md.) and Ted Lieu (Calif.) accurately captures the gravity of Trump’s misconduct. It situates his action within his “prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” And it recognizes the terrible damage that Trump, through his incitement, inflicted on the nation as a whole.
Trump’s actions might well qualify as federal crimes. But that determination is beside the point when it comes to measuring impeachable offenses. Impeachment exists to protect us from future threats rather than to punish prior misconduct. It does not require proof of a crime.
Indeed, as the House concluded in December 2019, conduct that may be in some sense permitted by the Constitution (or the criminal code) can still be impeachable if undertaken in a grossly abusive manner or as part of a scheme that imperils democracy. Those who wrote the impeachment clause grasped the threat posed by leaders who deploy mob violence against officials and institutions of government that stand in their way. Faced with Trump’s conduct — inciting the most destructive assault on our seat of government since the War of 1812 — they would not have hesitated to act.
That’s true even though Trump will leave office in just 12 days. The Constitution entrusts the House with “the sole Power of Impeachment,” and the Senate with “the sole Power to try all Impeachments.” For good reason, the House and Senate have traditionally exercised those powers with considerable due diligence, deliberation and process.
But the Constitution does not require slow motion at times of crisis, especially when the nation witnessed an impeachable offense in real time. Here, holding protracted hearings would be a foolish undertaking, akin to playing a sonata on the decks of the Titanic. The House can and should act with dispatch.
Many considerations support that conclusion. As a matter of principle and precedent, the House must leave no doubt that Trump’s conduct is beyond the pale. He came close to destroying the Capitol in pursuit of his antidemocratic effort to overturn an election; an unequivocal response is called for.
Moreover, there is now widespread, bipartisan recognition that Trump will remain a danger to our national security through his final days in office. His obvious lack of remorse and unwillingness to accept responsibility confirm the threat. So do his pattern of placing his personal interests above the law, and his failure to modify his conduct after being impeached last year. With every passing hour that he has the instruments of executive power at his command, the risk that he could do incalculable damage cannot responsibly be ignored.
UPDATE: The FBI has “received information about an identified armed group intending to travel to Washington, DC on January 16. They have warned that if Congress attempts to remove POTUS via the 25th Amendment a huge uprising will occur,” according to a bulletin obtained by ABC Radio reports. Trump’s fascist domestic terrorists are planning another attack on the Capitol this weekend.
UPDATE: NBC News reports, FBI memo warns law enforcement across U.S. of possible armed protests at 50 state capitols: The FBI has sent a memo to law enforcement agencies across the country warning about possible armed protests at all 50 state capitols starting Saturday. While the memo discusses possible threats discussed by online actors for Saturday through the inauguration of President-elect Joe Biden on Jan. 20, it doesn’t mean law enforcement agencies expect violent mass protests or confrontations in every state.
By approving articles of impeachment, the House would give the Senate the option to swiftly convene, try, convict and remove the president — and, upon a separate vote, disqualify him from future officeholding. To be sure, the Senate may lack the willingness [Mitch McConnell says the Senate is in recess until January 19, and could not complete an impeachment trial before Trump has left office] or the time to hold a trial. Still, the very pendency of articles — and the possibility of trial and conviction — may itself chill Trump’s worst impulses as he contemplates his final days as president. And it appears as though there is now bipartisan support in the Senate for serious consideration of articles of impeachment.
Mitch McConnell’s continuing obstruction of an impeachment trial in the Senate even after a violent insurrection and failed coup attempt that resulted in five deaths, means that any further acts of violence and insurrection rests squarely on the heads of
Republicans the Sedition Party. They are failing their constitutional duty and oath of office, and failing to protect the American people.
In any event, if the House approves articles of impeachment but the Senate does not act before he leaves office, those articles will mark the historical record, serve as a valuable deterrent in the interim and draw a line against future abuses. (Scholars debate whether an impeachment may proceed against a former official.) See below.
The impeachment power must never be exercised lightly. But the House would be fully justified in finding that Trump’s incitement of mob violence against the United States government warrants that drastic remedy.
Michael Gerhardt, the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law, is the author of six books, including leading treatises on impeachment. He writes at Just Security, Impeachment After a President Leaves Office (excerpts):
The question is whether a president may be impeached by the House or tried and convicted by the Senate after he has left office.
It has never happened before in American history, but then no president until Trump spent his final days in office doing the kind of damage he has done — attacking the legitimacy of America’s democratic institutions and expressing his “love” for his followers who charged into Congress with guns and destroyed federal property in their quest to find his enemies and hold them accountable for not overturning the election results.
The Constitution provides that the President “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” but it says nothing about the timing of when the impeachment and trial may take place. That omission makes sense, since presidents – and any other impeachable officials – could commit impeachable offenses at any time while they are in office, including in their last months or days in their positions.
It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions. What’s more, litigation or prosecutions might not be able to get at the misconduct, since the scope of impeachable offenses extends to misconduct that is not an actual crime.
And what if that misconduct is not discovered until after a president leaves office? There may be no practical means for holding him accountable for such misconduct, especially if he is regarded as having been immune from any criminal prosecution or inquiry while he was in office. Being president is not a safe harbor from political and legal accountability.
This is why John Quincy Adams proclaimed on the floor of the House that, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.” (Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analyses 80 (2d edition 2000) (citation omitted)) Adams’s suggestion was that any impeachable official remained subject to that process well after they left office, not just presidents but those who abused power while in office.
The principal argument against allowing post-presidential impeachment is that the Constitution does not make private citizens subject to impeachment. The founders rejected the British model that allowed Parliament to impeach anyone, except for the King, and so they limited impeachment to certain public officials, including presidents. Subjecting a president to impeachment after he has returned to his private life would, seemingly according to this logic, violate this basic constitutional principle. (Indeed, the Constitution itself applies only to governmental not private action.)
The problem with this argument, however, is that presidents and the other officials who are subject to impeachment are not like the rest of us. Once they leave office and return to their private lives, they are still ex-presidents and former officials who may have committed impeachable offenses in office. A core principle of the Constitution is that no one, not even the president, is above the law, and an abuse of power, by definition, is a violation of the Constitution, the supreme law of the land. What’s more, the special penalties upon conviction in impeachment are designed to protect the republic from the very type of people who have abused public office in such a grave manner that they should never have the opportunity to be entrusted with public power again. It would make no sense for former officials, or ones who step down just in time, to escape that remedial mechanism. It should accordingly go without saying that if an impeachment begins when an individual is in office, the process may surely continue after they resign or otherwise depart.
Understandably, members of Congress and the American people might lose the appetite for subjecting a president to impeachment once he has left office for good. But that is a political choice not a constitutional directive. A president who leaves office and retains the potential to return someday should still be subject as well to the unique processes set forth in the Constitution to sanction his abuse of his office.
To haul a former president back before the tribunal of Congress when it has uncovered misconduct makes eminent sense when the only permissible sanctions might be those that the Constitution provides. That misconduct invariably calls for a special remedy, and the Constitution provides that in disabling the president who has committed such misconduct of ever being able again to serve as president or any other federal office and continuing to benefit financially from his time as president. Presidents are not above the law, not when they are in office, and not when they leave office. That kind of accountability comes with the job, a job Donald Trump seems to want so badly that he’s breaking the Constitution to try to keep it.
Lawyer Richard Pildes explains, Can Congress Impeach and Convict a Former Federal Official After They Leave Office?
The reason for such an impeachment would be then, after conviction, to disqualify that person from holding future office. Disqualification is a sanction that can be attached following impeachment and conviction.
The most prominent example of Congress having asserted such a power occurred during Reconstruction, when Secretary of War William Belknap resigned just before the House voted on the Articles of Impeachment. The House went ahead and approved the articles, and Belknap was then tried in the Senate a month later, which failed to convict him. Belknap attended his trial in the Senate. For the Senate’s history of this event, see here.
The leading academic article on the general issue, as far as I know, is Brian Kalt’s article, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment. Here is his abstract, which summarizes the general history and arguments:
This article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office.
UPDATE: More than 300 historians and constitutional scholars have signed an open letter calling for the impeachment and removal of President Trump, saying his continuation in office after encouraging supporters to march on the U.S. Capitol posed “a clear and present danger to American democracy and the national security of the United States,” the New York Times reports.
Because of Mitch McConnell’s continuing obstruction of an impeachment trial in the Senate, House Majority Whip James Clyburn (D-SC) has suggested that House Democrats might wait until after President-elect Joe Biden’s first 100 days in office to send any articles of impeachment against President Trump to the Senate, a move that would give the incoming President time to tackle his agenda in Congress before the start of a time-consuming trial. Said Clyburn: “We’ll take the vote that we should take in the House, and Speaker Nancy Pelosi will make the determination as to when is the best time to get that vote and get the managers appointed and move that legislation over to the Senate.”
I totally disagree. Donald Trump and his MAGA red cap thugs remain a clear and present danger to the national security of the United States. The FBI and law enforcement are warning of another planned violent attack by Trump’s allied domestic terrorists this weekend and possibly even on Inauguration Day. Mitch McConnell and his
Republican Sedition Party obstructionists and enablers of Trump’s failed coup attempt and insurrection against the U.S. government need to hold an abbreviated Senate Impeachment trial this week, and remove Trump from office immediately. This is a national emergency and the nation is in peril. The Senate must act.