January 7, 2021

Calls for Trump’s impeachment started before he actually took office. And early last year those calls were heeded when the House, on a predominantly partisan basis,  delivered articles of impeachment to the Senate based on a phone call he made to the Ukrainian President. As we all know the Senate also on a predominantly partisan basis chose not to convict. There is no need to debate whether either action was right or wrong. But clearly, there was no unanimity at that time in moving forward to remove the President.

However, we are now at a different point in time. As a result of the assault on the Capitol on January 6th we have finally arrived at what is, in my opinion, a solid basis on which to impeach.

Moreover, I believe such an action would be supported by many on the Republican side, who are not fanatical supporters of the President, and appropriately result in a conviction. How did I reach this assessment?

First, impeachment is a political solution to hold to account someone who abuses their power. The offense in this case is his creation of an environment and, in turn, the opportunity which allowed a relatively small cadre of followers to launch an assault on the Capitol and threaten the lives of our representatives who were undertaking the constitutional obligation to accept the votes of the Electoral College.  In essence he undermined a democratic process, a clear violation of the public trust, which is consistent with the intention of the framers when they provided impeachment as a political solution to removing a public official and, specifically, the President.

Federalist 65 states “subjects of its jurisdiction ( the Senate acting as the court in an impeachment trial) are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Neil J. Kinkopf in an analysis prepared for the Constitution Law Center points out that “the Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue.”

Alternatively, some have called for the 25th Amendment to be invoked. Based on my understanding of this amendment that is not a practical solution because the intent of this amendment (which was passed after the Kennedy assassination) was to provide for continuity of government when the President is unable due to illness, disability or some other reason to carry out his or her duties.  It is also in some sense a cooperative process where the President might admit his lack of capacity and freely give over his power to the Vice President…something Trump will never do. 

He will likely also not resign, which is ideally the most efficient solution to this situation but, in my mind, letting him off easy. If he were to voluntarily resign it might allow him to re-enter the political arena at some future point which I believe would be bad for the country. ( While I support many of his policies and believe he did accomplish some good things while in office his most recent actions and demeanor in the aftermath of an election defeat is too much to be ignored or countenanced.)

Some argue that impeachment serves no purpose at this late date given the transition of power that will take place in a few days. I say, not so.  

Impeachment will serve as a condemnation of his complicity in creating the environment and opportunity for the violence that occurred beyond the right to protest.  I will always argue that his speech does not rise to the level of incitement required (under the Supreme Court’s interpretation of the free speech provision of the Constitution) to justify a criminal offense. That is where impeachment comes in…it is a political solution when there has not been a violation of a statute.

What will impeachment achieve? 

While impeachment may not be able to occur prior to his leaving office, if he is subsequently convicted by the Senate, in a separate disqualification action, they can vote to bar him from holding future office which, based on these recent events, would be an appropriate punishment in the public square. It would also render mute the rhetoric of his fanatical group of followers who could no longer hold out hope for his second political coming in four years.