Yes, Again. And Now., by Allen Sumrall & Connor M. Ewing

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. His research focuses on American political and constitutional development.  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.


The President should be impeached for his actions before and after his supporters’ attack on the US Capitol. It’s what impeachment was designed for. It’s also good politics.

On Tuesday, we argued that President Trump’s phone call over the weekend with Georgia election officials warranted a second impeachment, even in the final days of his presidency. Today, after failing to fulfill his oath in response to an armed insurrection of his supporters that he encouraged, that case is even stronger.

This fact underscores a key premise of our initial argument: impeachable offenses need not include a violation of law. Properly understood—under what we and others have called a “political understanding”—impeachment is a tool Congress can use to enforce accountability to standards of public conduct, political morality, and constitutional principles. A legal violation may be evidence of a dereliction of duty or a harm to the constitutional order, but is not in any sense required for impeachment.

Today, that point is brought into even sharper relief. The President’s conduct before and after Wednesday’s acts of violence may have violated a number of federal criminal statutes—18 U.S.C § 2101(inciting riots), 18 U.S.C. § 2383 (inciting rebellion or insurrection), 18 U.S.C. § 2381 (treason), 18 U.S.C. § 2384 (seditious conspiracy), or perhaps others. But if the President is never tried or convicted (or if the President’s lawyers rely on an affirmative defense), the most prevalent understanding of impeachment today would rule out impeachment. This is the very argument that convinced a critical number of Republican senators during the impeachment trial last January.

But as we explained in our last essay, that understanding of impeachment is mistaken. It is the product not of robust constitutional theory, but of a series of contingent political developments that created an idea of impeachment that competes directly with what the Constitution created.

Once we clear away the competing idea that is the root of so much confusion, the unavoidable conclusion is that the President’s conduct in the run-up to and immediately after Wednesday’s violence falls squarely within the realm of impeachable conduct. He violated his oath of office, in which he swore to “preserve, protect, and defend the Constitution of the United States.” A second impeachment was warranted after the President’s phone call on Saturday, but events of the last two days make the case for a second impeachment even stronger, and demonstrate its urgency. However, it’s not just a question of constitutional politics—it’s also good party politics.

A Second Impeachment

Commentators often point out that the framers rejected the phrase “maladministration” as the standard for impeachment. Indeed, Alan Dershowitz relied heavily on this point in his defense of Trump at the first impeachment. As the argument goes, because the framers rejected “maladministration,” things that count as maladministration—derelictions of duty or violations of the oath of office, for example—cannot be grounds for impeachment. But Dershowitz is not a scholar of constitutional theory—nor, evidently, a particularly careful reader. The framers rejected the term “maladministration” because it was too broad. Some forms of maladministration should not be grounds for impeachment. Why? Because laziness could too easily be used as a pretext for impeaching a political rival.

The phrase on which the framers eventually settled, “high crimes and misdemeanors,” includes criminal violations, but it also sweeps in derelictions of duty and other political crimes. To be sure, there is no enumerated list of “political crimes.” As political scientist Jeffrey Tulis shows, political crimes are crimes directed at the state or the constitutional order itself: “high crimes and misdemeanors” are “offenses that subvert the Constitution by neglecting the duties of governance in some way.”

In the weeks leading up to the January 6 counting of electoral votes, the President encouraged his supporters to come to Washington, DC to demonstrate when Congress was scheduled to officially count certified electoral votes. As the possibility of violence became increasingly clear, his rhetoric became more irresponsible and inflammatory. On Wednesday morning, before Congress convened its joint session to count votes, the President gave a speech at the “Save America” rally. There he declared, “We will never give up. We will never concede.” (Before Trump’s speech, Rudy Giuliani gained wild applause when he pounded the podium and exclaimed, “[l]et’s have trial by combat!”). In that same speech, Trump repeated his calls for Vice President Pence to assume a power not based in any plausible, good-faith reading of any applicable law to reject duly certified electoral votes

The President remained silent for hours after the US Capitol was breached for the first time since the British attacked it in 1814 during the War of 1812. He broke his silence only to again call, via tweet, for Pence to insert himself into the electoral count process.

When Trump finally spoke, he remained obstinate, defiant, and oblivious to the gravity of the situation. Repeating the same claims of fraud and dispossession that just hours earlier had been echoed by his congressional allies—the very claims that brought the protesters to the Capitol in the first place—the President broke his silence in a recorded statement, saying, “I know your pain, I know your hurt. We had an election that was stolen from us—it was a landslide election, and everyone knows it.”

The President had every opportunity to walk back previous comments, to condemn the lawlessness and violence he encouraged, and to attempt to live up to the dignity of the office he is scheduled to occupy until January 20. But he failed. He remains committed to rejecting the legal and political processes that make peaceful transitions of power possible. The message to his supporters that their cause was just made this clear

Repeated attacks on our electoral institutions—as well as uninformed challenges to the most basic procedures of our court system—tear at the fabric of democratic self-governance. But as night fell in DC, he issued another grotesque tweet (that has since been removed): “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.” He asked the insurgents occupying the Capitol to “[g]o home with love & in peace,” but suggested that violent assaults on our democratic processes are simply what happens when elections don’t go his way or aren’t later “recalculated” in his favor.

Under any definition not warped by malignant partisanship, President Trump has violated his oath of office. He failed to “preserve, protect, and defend the Constitution of the United States.” Constitutional democracy is predicated on the decision to exchange revolutionary violence for political processes and legal protections guaranteed to both winners and losers. Trump’s actions are incompatible with a commitment to safeguarding the principles, institutions, and processes of American constitutional democracy. Even if he broke no laws in the course of violating his oath, Trump can still be impeached. This is precisely what impeachment was designed for. This is its purpose. Now is the time to use it.

Why Now?

In our original piece, we identified three reasons why impeachment is warranted, even though the President is scheduled to be office for just 13 more days:

  1. Impeachment would define and enforce standards of presidential conduct;
  2. Impeachment would allow for coalition building around weakened constitutional commitments and democratic institutions, and;
  3. Impeachment would enable Congress to reassert its institutional prerogatives after years of erosion by corrosive partisan loyalties.

In a thoughtful and thought-provoking response to our argument, George Thomas pushed us on the wisdom of an impeachment if removal by the Senate, which requires a two-thirds majority, was all but doomed. (Thomas seems to have come around to our position, but the questions he asked are still important.) What would be the consequences of a failed removal, or even a failed impeachment? An unsuccessful process threatens to expose what we have known for a while: that for many elected officials, partisan loyalty trumps constitutional duty—that fear of not winning reelection obliterates a sense of obligation to the Constitution they took an oath to uphold.

Thomas is right to worry that a failed impeachment might have this effect. Instead of marking the reassertion of congressional prerogatives, it might to the casual observer only further highlight Congress’s tepid role in our constitutional system today. While removal from office would most effectively and forcefully advance the three purposes we identified most, Thomas thinks anything less would fall short of what is justified under Congress’s constitutional powers.

But as we argued in the piece, all three purposes we identified would apply even absent removal. The President’s conduct in recent hours, days, and weeks is more egregious, more explicit, and more evident than what led to his first impeachment. For that reason, even a partial rebuke by Congress would be significant. Standards of appropriate constitutional conduct would be affirmed. The effort would offer opportunities for Republicans who supported the President during his first impeachment but no longer do to stand and be counted. In doing so, Congress would resume its role as a forum for the authoritative articulation of democratic will.

Even absent removal or disqualification, a second impeachment would be an important step for the future of American politics. This is true for each of the reasons we outlined, though perhaps especially the last. If a second impeachment falls short of removal, it would be tempting to blame Congress as an institution. However, analytic clarity is important for an issue of this gravity. Blaming the institution means ignoring the most pressing dynamics of democratic decay. If a second impeachment fails, it would ultimately not be because Congress or the Constitution failed. It would be because members of one party proved incapable of faithfully exercising the authority entrusted to them by the Constitution and their constituency. Any institutional flaws Congress has are secondary to the threat of the demise of loyal opposition.

Since our piece was published and Thomas’s response was posted, two important events have happened. First, all that we detailed above transpired: Urged to “fight” by the President, a mob stormed the US Capitol and halted the administrative task of counting electoral votes. Law-enforcement officers have been injured. The National Guard has been called in—apparently at the behest of the Vice President and not the President—to aid the overwhelmed capitol police.

Second, John Ossoff and Rev. Raphael Warnock defeated Republican incumbents David Perdue and Kelly Loeffler in the Georgia Senate runoff elections, thus handing (with the help of Vice President-elect Harris’s tie-breaking vote) control of the Senate back to the Democrats. Depending when Ossoff and Warnock are sworn in, an impeachment trial in the Senate would likely be controlled by the Democrats. While the Democrats’ numbers are still short of what is needed to guarantee removal, a trial would put the onus on Republicans to defend the President’s conduct and to attempt to demonstrate how and why he has fulfilled his oath in the face of incontrovertible evidence to the contrary.

Timing matters. Thomas argued that “prudential judgments should be a large part of deciding whether to go forward with impeachment.” We agree. We believe our case for impeachment is stronger in the wake of the Georgia elections, but even stronger in the wake of the assault on the Capitol. These events make impeachment not just more urgent, but better politics for Republicans. Trump took office in 2016 and swept in Republican majorities in both the House and Senate. Since then, the GOP has lost control of the presidency, the House, and, as of Wednesday afternoon, the Senate. Tweeting about the Republican Party in 2016, Senator Lindsey Graham predicted that, “If we nominate Trump, we will get destroyed…….and we will deserve it.”

Today, desperate to hold onto power, the President threatens not just democracy and people’s lives, but criticizes Republicans who fail to prostrate themselves to him. His son Eric threatened Republicans who did not try to subvert the election results: “their political career is over because the MAGA movement is going nowhere.”

But it seems the MAGA movement may be going somewhere after all. If Senator McConnell’s speech to the Senate Wednesday morning is any indication, many Republicans now—finally—realize that Trumpism is not necessarily a winning or unifying message. To the surprise and horror of many Republicans, Lindsey Graham’s prediction is coming true. Building a large, pro-democracy coalition can help save a democracy under threat. A second impeachment therefore offers not just the opportunity to repudiate an anti-constitutional demagogue, but to salvage what is left of the Republican Party.

Conclusion

It is clearer than ever that a second—and immediate—impeachment is needed to show that a president encouraging mob violence against our democratic institutions will not be tolerated. It will demonstrate that the steadily escalating attacks on the integrity of America’s electoral institutions and processes are viciously antidemocratic—only in part because, as we saw Wednesday, they can culminate with guns drawn in the US House Chamber as security officers attempt to slow the progress of domestic terrorists intent on overturning the results of a democratic election.

Impeachment will teach that we live in a constitutional democracy, where institutions were designed with the hope—the expectation—that ambition would be made to counteract ambition. It will instruct both the public and office holders that there is a purpose higher than partisan loyalty, and that democracy is bigger than partisan victories.

Finally, it will show that our first branch of government has the power and the will to push back against a demagogic president who has placed himself above the Constitution and will say or do anything to reshape American politics in his image.

6 thoughts on “Yes, Again. And Now., by Allen Sumrall & Connor M. Ewing

  1. A quick note for readers of The Constitutionalist. The dialogue between the authors of this piece and George Thomas models the kind of civic discourse that we want to encourage on this website. And it models the form of political conversation vitally needed in today’s America.

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