The House of Representatives impeached President Donald Trump for “incitement of insurrection,” seven days after the violent assault on the Capitol and seven days before he leaves office. The speed of the impeachment reflects widespread and bipartisan condemnation of Trump’s conduct before, during and after the deadly riot. At the same time, the mechanism of impeachment is a solemn one and its suitability for this circumstance merits careful examination.
Punishment, Protection, Prohibition
Impeachment can be punitive — a just punishment for “treason, bribery, or other high crimes and misdemeanors.” It can be protective, to remove someone from an office where he is actively doing harm. It can be proactive, leading (after conviction in the Senate) to a prohibition on holding future office.
Given that Trump’s term ends in less than a week, the protective argument is weak. It is unlikely that the matter will be taken up in the Senate before the inauguration of President-elect Joe Biden. That leaves punishment and prohibition as reasons for impeachment.
There is a widespread consensus that the assault on the Capitol requires the president to be punished for his role in fanning the flames that led to it. Perhaps more serious was his failure to make decisive and quick attempts to stop it once underway. Rep. Kevin McCarthy, House Republican leader, voted against impeachment but proposed an official censure of the president and a commission of inquiry to fully investigate those responsible.
Partisanship and Process
A punishment — and possible future prohibition — depends on bipartisan consensus for its public credibility. This was the case in the 1998 impeachment of President Bill Clinton and even more so in the first impeachment of Trump last year.
In both cases, the general view that it was a partisan maneuver by the House against a president of the opposing party made it appear that impeachment was more about gaining political advantage rather than pursuing justice.
A bipartisan act — for example, a widely-supported censure motion — would thus be more likely to be received as a just penalty rather than a party-line vote for impeachment. The fact that the Democratic House impeached Trump last year makes this impeachment appear more partisan. On the other hand, that 10 Republicans voted for impeachment this time makes it less partisan than last year.
For a penalty to be seen as just, the process must be seen as fair. An instant impeachment, without an investigative phase, hearings or sufficient time for debate, does not meet that standard.
If the Senate were to convict and remove the president in a similar instant fashion, any subsequent prohibition from office would lack the same credibility.
The Constitution does not require an impeachment and subsequent trial to follow the rules of a criminal proceeding. The House acted constitutionally in law, but the haste suggests a mindset more governed by political calculation than the rule of law and due process. That’s especially important in these circumstances, because the charge against Trump is that he has not acted with due respect for the spirit of the Constitution. For example, it is permissible to object to the electoral votes submitted by the states, but Trump’s critics considered it an offense against a proper constitutional sensibility. And in the final act, Vice President Mike Pence disagreed with President Trump on how to discharge his constitutional duties.
If the problem is the subverting of the Constitution for political purposes, the remedy ought to be constitutionally and legally meticulous.
To repair the damage done to a proper constitutional sensibility, it is all the more important to act not just within what the law permits, but with due regard for what the law encourages.
Impeachment and conviction may indeed be the best response to Trump’s role in the violent disruption of the electoral vote certification. There are senior Republican and conservative figures who think so, as well as Democratic and liberal ones. Such an impeachment and conviction would be more credible it if proceeded with due process of investigation, hearings, charges and an opportunity for defense.
Resignation?
The desire for an immediate response to the shock of the Capitol assault is understandable. Hence the instant impeachment. But the quick option for impeachment precluded other options, notably a bipartisan call for resignation.
The proper and customary response for conduct unworthy of high office is resignation. It does not preclude further investigation and penalties, but it is a beginning. A resignation also has the value of extending the consensus on that unworthy conduct to the one who resigns, at least partly admitting his fault.
A call for resignation that included prominent Republicans would be a powerful expression of a widespread consensus, even in the final days of a presidency. That the resignation option was not seriously attempted reflects the reasonable view that Trump appears incapable of considering such an admission of fault, even in part.
Symbolic and Diabolic
The instant impeachment has been defended on symbolic grounds. It is an appealing argument. To be sure, it does little to remove a president already on his way out, and does not pretend to be a careful proceeding according to due process. But it can be seen as a fitting symbolic response to the invasion of the Capitol.
Christian language might be of assistance here. A symbolic act can be a powerful act. Our sacraments, for example, are symbols, though not only that, and much of our communal worship relies upon symbols.
Author Rod Dreher reminds us that symbolic — and its opposite, diabolic — are words of Greek origin. The “symbolic” unites, the “diabolic” divides. We think of this primarily in relation to reality and to God. A good symbol brings us in touch with reality, draws us closer to God, whereas something diabolic separates us from the truth, and estranges us from God.
It can also be usefully applied to politics, which also relies on symbols. The Capitol itself is a symbol, even called by some a “sacred” symbol — not as a house of worship but as something to which reverence is due.
It can then be asked whether the impeachment meets the test of a good symbol. What truth does it express? Does it contribute toward greater unity in terms of shared ideals and common principles? It may be that it succeeds on the former, but in the current hyper-partisan environment fails on the latter.
During World War II, Canadian Prime Minister Mackenzie King adopted a careful slogan: “Conscription if necessary, but not necessarily conscription.”
Adapted to the circumstances, it might be fitting here. Impeachment if necessary, but not necessarily impeachment, at least not of the instant kind.