On January 30, 2020, almost precisely one year ago I wrote "My final post on impeachment." I was wrong. I apologize.
In the wake of the insurrection at the Capitol on January 6, 2021, the impeachment of President Donald J. Trump again seems likely. The House of Representatives' Democratic Caucus will discuss it later today. By Monday, we will know. In anticipation, here are my beliefs and thoughts.
We all know that President Trump has repeatedly called the legal function of state electoral officials, the electoral college and the Congress "theft" and has insisted that the results were fake, fraudulent and an illegal stealing of the election. There is no debate about that fact. Despite his repeated loss in the courts, including the Supreme Court, he persisted right through Wednesday's "Save America" speech and the violence that followed.
We must be clear why Wednesday was legally VERY DIFFERENT from any other day. On any other day, he has a 1st amendment right to lie in public, and to defame anyone and anything he wants. However, once the Congress is seated and performing its constitutional duty to count the electoral votes, any attempt by the Executive Branch to sabotage or interfere is a direct attack on the Constitution of the United States and his presidential duties to uphold and defend it.
On that very day, he rallied a crowd, and sent them to the Capitol explicitly to make the Congress refuse its duty. He said: "Give them the courage to send it back to the States for recertification, and we will win. We will be the President and you will be very happy people." This, not just the violence that followed, is the impeachable offense.
The two likely Articles of Impeachment are clear:
Violation of the Constitution: The President gathered people on the Constitutional day of certification, and sent them to the sitting congress in the moment of their constitutional function with the explicit intent to interfere with their duty and to make/encourage them to overturn their constitutional mandate to count the electoral college and certify the victory of President-Elect Joe Biden.
Incitement to Riot: By sending a crowd to the Congress to "fight," to "be strong," and so on, he becomes legally responsible for the illegality of their behavior.
I believe that the second Article is weak, and will give Republican members of the Congress the wiggle-room to say "he condemned the attacks, and never intended the riot." Like last year, it is very possible that the Democrats will nevertheless choose this weak article, and thereby fail in their purpose. By distracting the debate on the second topic, they will be able to ignore (but vote against) the first topic.
The first article is crisp, clean and clear. There is no doubt that by publicly denying and defaming the certified votes of the Electoral College, and by sending a crowd to interfere in Congress' duty to count and record them, that President Trump was in direct violation of the Constitution of the United States of America.
Can he send a crowd of people to the Supreme Court to interfere with the Justices as they sit on the bench? Can he fight against the rule of laws that he personally doesn't agree with?
The Constitution and the Electoral College are the rule of law. They are the precise law that the President is sworn to uphold and defend. This is a blow against the basic foundation of the office of the Presidency as the chief executive in charge of implementing the laws of the land.
If that is not an impeachable offense, then what is?
But why do it if there is no time to actually remove him from office?
The Senate will not be under Democratic leadership until Warnock and Osoff from Georgia are certified. That could take until January 20th; it is not clear. Mitch McConnell will certainly not allow the articles to be tried on the Senate floor on his watch. In other words, there is no time to actually remove him from office. So why proceed?
The stain of disgrace that the Impeachment leaves on Trump's reputation is itself necessary at this point. The world must know that what has been done is a violation of our democracy and that our democracy is stronger than this one man. He may "get away with it," but he can not declare victory like he did after the last impeachment when he was exonerated by the Senate. Not being exonerated is actually a more powerful negative legacy than being tried and let off the hook in the Senate. For that reason, it is the perfect kick in the behind on his way out the door.