Allen Sumrall is a fifth year combined JD/Ph.D. student in the Department of Government and Law School at the University of Texas at Austin, specializing in Public Law and American Politics. Connor M. Ewing is Kinder Institute Assistant Professor of Constitutional Democracy and Assistant Professor of Political Science at the University of Missouri. His research interests span American political thought and development, constitutional law and theory, federalism, rights jurisprudence, human dignity, and constitutional design.
In an extraordinary phone call Saturday afternoon, President Trump urged Georgia Secretary of State Brad Raffensperger to “recalculate” Georgia’s 2020 election results and “find” 11,780 votes to overturn President-elect Joe Biden’s victory in the state. In a desperate plea to convince Georgia state officials to declare him the winner, Trump reiterated many of the same baseless conspiracy theories about election fraud that have populated his Twitter feed since the election.
Despite there being no evidence of widespread fraud, Trump continues to reject the reality that he was defeated in the 2020 election. He concluded his plea with a thinly veiled threat to both Raffensperger and the Secretary of State’s general counsel, Ryan Germany. According to Trump, not finding thousands of ballots would be “a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.” To his credit, Raffensperger responded, “Well, Mr. President, the challenge that you have is, the data you have is wrong.”
Trump’s conduct might expose him to criminal liability, but that is ultimately beside the point. Whether or not Trump’s conduct on this phone call violates the National Voter Registration Act or Georgia state law (or whether he could, as president, be tried for such a violation), he has once again engaged in conduct for which he should be impeached.
But Trump is a lame-duck president who—despite his continued exhortations about widespread election fraud, a series of confusing and legally baseless lawsuits, and the performative machinations of about a dozen Republican senators and scores of representatives—will no longer be president come January 20th. He is an unquestionably weak president who just faced the first veto override of his presidency. What good would an impeachment do?
Impeachment stands for the proposition that there are limits to presidential conduct, and that power can be abused. In a post-Trump era, this principle must be re-established. Impeachment would also interrupt the series of steadily escalating attacks on the integrity of America’s electoral institutions and processes. Trump’s conduct on this phone call was only the most recent in a succession of claims that the 2020 election was tainted by widespread fraud, an allegation Trump’s own Attorney General rebuffed. Finally, impeachment would mark the beginning of Congress reasserting its role in American politics, something that would benefit Republicans as well as Democrats. Each of these would apply even if the Senate declined to hold a trial or failed to remove the President from office.
The Role of Impeachment
Impeachment plays an important role in American constitutional politics, but it is widely misunderstood. Trump’s impeachment in late-2019 and early-2020 illustrated this confusion. Those who favored Trump’s impeachment and removal argued that threatening to withhold congressionally allocated funds for Ukraine if they did not investigate Joe Biden clearly constituted an “impeachable offense.”
Those opposing impeachment and removal countered that because Trump had done nothing criminal, nor violated any other law, he had not committed an offense for which he could be impeached. Many Senate Republicans used this argument to justify their votes to acquit the President. Senator Susan Collins of Maine, for example, did not contest the accuracy of the allegations, but argued they did not meet the “very high constitutional standard of treason, bribery, or other high crimes or misdemeanors.” Senators Lisa Murkowski (AK) and Lamar Alexander (TN) employed similar arguments.
The problem is that these arguments entirely misstate the purpose and function of impeachment. Impeachment is not a legal process. Even the phrase “impeachable offense” can be misleading because it suggests there is a list of offenses, akin to a criminal code, that justify impeachment and removal. But impeachment is not a legal process; there is no list of discrete, enumerated offenses for which an official can be impeached.
At the same time, impeachment is not without standards. Impeachment is not “about whatever the Congress says it is.” For example, impeachment is not a tool to remove political rivals. As Alexander Hamilton wrote in Federalist 65, impeachment trials “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Constitutional scholar Keith Whittington reminds us that impeachment, despite all its trappings of legalism, is “unavoidably political.” Impeachment is a tool Congress can use to remove officials who are harming the constitutional system or the polity writ large. Properly understood, Congress’s powers allow them to impeach and remove demagogues who are damaging our democracy. Threatening state officials with criminal penalties if they do not fudge the results of an election easily meets this standard.
A History of Confusion
So why the confusion? Why, despite a wealth of historical evidence and constitutional theory about the role of impeachment in our constitutional system, do opponents think an indictable offense is necessary? Why will some dismiss calls for impeachment, arguing that it’s not clear a president who threatens a state official with criminal charges for not overturning the results of a valid election has violated any law?
As one of us has argued, there is a historical explanation for this confusion. The tension between these two competing understandings of impeachment—impeachment as a legal process to remove officials who have committed indictable offenses, and impeachment as a robust constitutional tool Congress can use to oust demagogic officials who have abused their power—is the result of a series of contingent historical events. Soon after the founding, the role the Constitution contemplates for impeachment began to be partially displaced by this competing idea.
Constitutional scholars often point to the impeachment of President Andrew Johnson in 1868 as the formative moment for our understanding of impeachment. However, the process began much earlier. The idea of impeachment as a narrow, legalized process to remove officials who have broken the law has roots in the impeachments of US District Judge John Pickering in 1804 and US Supreme Court Justice Samuel Chase in 1805.
These impeachments were not motivated by a robust constitutional understanding of democratic health. Quite the opposite, in fact. It was not clear either had done anything to harm the democratic process or the health of the republic. Rather, the motives for these impeachments were actually among those rejected by the framers of the Constitution when they discarded the term “maladministration” as the standard for impeachment. The framers did not want officials thrown out over simple partisan or policy disagreements. However, because of the particular posture of each early impeachment, the best defense was to articulate the standard often invoked today by those who misunderstand impeachment: that neither had done anything indictable, so they should not be removed.
These early impeachments only happened because a critical component of democracy—the idea that one’s political opponents are not enemies—had not yet taken hold. The legitimacy of opposition allows competing factions to participate in democratic politics without blowing up the system. Though it eventually took root in America, this commitment is eroding today. Ironically, the very ideational backdrop of illegitimate opposition that allowed this narrow idea of impeachment to develop and saved Trump from removal in 2020 is the same one Trump is today both leveraging and destroying.
The Reasons for Impeachment
A second impeachment—even in the waning days of Trump’s presidency—is not only an appropriate response to his conduct, but it would also serve a number of important goals. Moreover, each of these should appeal to politicians and supporters on both sides of the partisan divide.
First, and perhaps most importantly, impeachment at this late moment would affirm that there are limits on presidential conduct. While that may seem like an insignificant result that is beyond dispute, it is a proposition that Trump’s presidency has challenged. Indeed, it is not clear where congressional Republicans would draw the line when it comes to inappropriate presidential conduct. Giving the President one more pass would only underscore a message that seems all too clear after Trump’s sole term: with enough political support, a president can do whatever he wants. Impeachment would signal that inappropriate presidential conduct still has consequences.
Second, impeachment would at least interrupt a series of escalating attacks on American democracy. The past several weeks have brought a deluge of events that, on their own, might be easy to write off as dangerous and troubling but isolated occurrences. When more than half of House Republicans joined a brief urging the Supreme Court to take a case that could invalidate election results in four states, it was tempting to dismiss it as merely another amicus brief. Amicus briefs are filed all the time. What’s so special about this one? The same goes for Rep. Louie Gohmert’s lawsuit that asked a federal court to invalidate the Electoral Count Act and give Vice President Pence powers to reject electors that states had already certified. “It’s just a lawsuit,” many said. “The courts will take care of it.”
But responses like these miss the forest for the trees. They overlook the dynamics of political coordination—how coalitions are constructed and hold together. They also risk normalizing deeply undemocratic behavior. Just because something is permissible as a matter of law does not make it democratically appropriate. Each instance signaled support for the President and raised the stakes for other ambitious Republicans who fear Trump and his core supporters. But they also pushed the boundaries of acceptable conduct for elected officials.
Recall that the lawsuit Texas filed hoping to invalidate the results in other states was the prelude to Rep. Gohmert’s lawsuit; and as a court was considering Gohmert’s lawsuit, Missouri Senator Josh Hawley announced that he would object to the certification of Electoral College votes on January 6. Not to be outdone by a probable 2024 presidential primary rival, Texas Senator Ted Cruz then announced that he would seek to reject Electoral College results pending an investigation by an election commission convened for that purpose. Cruz’s effort quickly gained the support of an additional ten senators.
It is in this context that President Trump pressured Georgia state officials to change election results in his favor. The President’s actions are part of this broader pattern. As the past several years make clear, the threats of populism, democratic decay, and constitutional rot are cumulative phenomena, their consequences amplified by successive episodes of partisan oneupmanship that increase in their severity. Impeachment would thus constitute a full-throated rebuke of the President’s attempt to undermine American law and democracy, while possibly stemming the tide of constitutional hardball.
Finally, impeaching President Trump for a second time would be a significant step towards repairing and reinvigorating Congress’s role in American politics. Congressional powers do not exist in the abstract. They are part of an arsenal. Each power’s meaning and practical significance is enhanced by the vitality of the others. The threat of impeachment can serve to discipline the behavior of executive and judicial officials. However, it only works if the threat is credible—if those officials believe that Congress could and would actually follow through. Impeachment can serve as a credible deterrent—Congress’s “nuclear option”—and helps to frame and bolster its subsidiary powers, like oversight and appropriations. Used effectively, impeachment can help protect and advance the people’s interests.
Reclaiming Congress’s role in the constitutional order by again exercising its power of impeachment is in the interests of congressional Republicans, who are preparing to assume the minority position in a divided government. Again, the political or constitutional understanding of impeachment is part and parcel of an affirmation of the legitimacy of political opposition. Republicans will not control (at least) one chamber of Congress for (at least) the next two years. Perhaps ironically, their efforts to keep government officials accountable will depend on the same arguments that now support Trump’s impeachment. For both Democrats and Republicans, signaling support for impeachment would be a welcome and much-needed reaffirmation of democracy and the rule of law—of constitutional governance over tiresome and corrosive partisan warfare.
Much of President Trump’s support among congressional Republicans is rooted in their fear of the consequences for crossing him. They believe Trump and Trumpism define the Republican electorate, and that reelection depends on catering to that constituency. As he has demonstrated on numerous occasions, he relishes calling out and insulting those who criticize or oppose him, even—and perhaps especially—fellow Republicans.
But a second impeachment could address that fear directly: In addition to impeachment and removal, President Trump could be disqualified from holding public office in the future. Following impeachment by the House, the Senate could disqualify him from holding public office with a simple majority vote (rather than the supermajority required for removal), as it did with US District Judge Humphreys in 1862 and Associate Judge of the Commerce Court Robert Archbald in 1913. In fact, there is reason to believe disqualification might be possible even if Trump is not removed by the Senate. Doing so would help address not only the problem of Congress’s abdication of its institutional role, but also the electoral problem that faces ambitious Republican officials who harbor quiet reservations about Trump’s antidemocratic and anti-constitutional behavior. Removing Trump from the center of American politics would serve everyone’s interest.
In short, Congress has at its disposal both the powers to appropriately respond to the President’s actions and the ability to exercise them in a way that serves the interests of its most vulnerable members. All that is required is the will to put those powers to use to protect American democracy and preserve its Constitution. That, of course, is the oath the new Congress just took. Upholding that oath would be a fitting way to begin the next chapter of American politics.