Congress should move forward with impeaching Trump, again

In the aftermath of the riotous attacks on the U.S. Capitol that left 6 people dead last week, House Democrats are calling for the second impeachment of President Donald J. Trump. 

Already, they are circulating a draft article of impeachment that cites a single charge of “incitement of insurrection” against him. Former prosecutor and CNN Legal Analyst Elie Honig posited in an interview on Sunday that, given the extensive video evidence of the riot, coupled with factors like Trump’s announcement that the Capitol protest “will be wild” and his subsequent praise of the mob as “very special,” a seasoned prosecutor could try the entire case in the Senate in one to two days, tops. 

As it stands, Trump retains control over federal law enforcement, the U.S. military and the nuclear codes, which fall within the ambit of the Department of Energy (DOE) — one of 250 government and private servers that were hacked by the Russians over the past eight months to the dismay of the federal government, inflicting unknown damage to national security. Many believe that something must be done to take the power away from Trump so that more worst-case scenarios do not come to fruition.

Yet, according to the current Senate Majority Leader Mitch McConnell (R-Ky.), without a unanimous Senate vote to end its recess immediately, a trial before President-elect Joe Biden’s inauguration is all-but-impossible.

Why would an impeachment be worthwhile? 

Skeptics, including some in the White House, claim that impeachment would only divide the country further and stoke more violence among Trump’s supporters. But Congress should continue the impeachment process after Biden is inaugurated for at least three reasons: accountability, the 2024 presidential race and taxpayer dollars.

Article I of the Constitution provides that “[t]he Senate shall have the sole Power to try all Impeachments . . . for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Note that the Constitution does not provide an expiration date for impeachment — that is, nothing in the Constitution bans impeachment after a president leaves office. Given the Department of Justice’s (DOJ) internal policy guidance precluding indictment of sitting presidents, and the much-anticipated self-pardon that Trump might afford himself to forestall federal prosecution later, Trump’s impeachment might become more — not less — important in 2021. If he self-pardons, it could be the only mechanism left to hold him accountable for widespread wrongdoing in office, absent prosecution by a state or local jurisdiction (which aren’t covered by pardons), or by a DOJ under Biden. 

In the latter instance, Trump would raise the self-pardon as a defense, which is the only way to get its constitutionality before the Supreme Court in the first place. Nobody else would have “standing” to bring that case, so absent a federal Trump indictment, a self-pardon would become the new normal for wayward future presidents.

The impeachment process resembles a civil or criminal trial. There is an indictment or complaint (i.e., the articles of impeachment in the House), followed by a trial before a judge or jury (i.e., the trial in the Senate). The Senate — like a jury— can acquit or convict. In the judicial system, a conviction does not necessarily determine a criminal sentence, just as a judgment in favor of a plaintiff in a civil trial does not necessarily translate into particular relief, such as a specific damages award. The sentencing or remedy phases are often separate from the trial. 

Likewise, the Constitution contemplates removal as only one aspect of a possible “sentence” upon impeachment. Article I goes on to state that “Judgment in Cases of impeachment shall not extend further than . . . disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Hence, a Congress controlled by Democrats could likely impeach and convict Trump after he leaves office in order to ban him from running again, which would in theory keep him out of the 2024 race. For those concerned about Trump, this possible outcome is worth the effort and civil strife that would result.

Arguably, Congress might also issue a sentence of removal “nunc pro tunc,” which is lawyer-speak for a judgment that would reach backwards in time to 11:59 a.m. on Jan. 20, when Trump was still president. Such a sentence could operate to remove a slew of taxpayer-funded, post-presidency perks. Trump could bring a judicial challenge to this aspect of a sentence, but that would not necessarily be a bad thing for the Constitution, as the scope of the impeachment clause rarely gets a chance for clarification in the U.S. Supreme Court.

There are a number of wrinkles to this plan. The first is the two-thirds majority needed for conviction. Even after the Georgia Senate runoff votes are certified for Democrats Jon Ossoff and Rev. Raphael Warnock, the Democrats will have the slimmest of majorities in the Senate, with future Vice President Kamala Harris operating as the 50/50 tiebreaker. Without a serious political exodus from Senate Republicans, there can be no conviction, which is a prerequisite to any sentencing phase. Although there is precedent for imposing a sentence of a public office ban by a bare majority, that sentence assumes that the Senate convicted by two-thirds in the first place.  

Absent a conviction, a second Trump impeachment could operate to further damage the Constitution beyond the myriad body blows it has barely sustained since he took office in 2016. Democrats must be sure they have the votes before proceeding, particularly given that a trial would pull Congress out of the business of legislating and confirming Biden’s cabinet. 

At this moment, let’s hope that enough members of Congress will put the Constitution over party and send a clear message to future leaders that presidential encouragement of insurrections against Congress is never again okay in America.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.