George Thomas is Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College.
On January 6th President Trump urged his supporters to violently storm Congress while it was in the process of formally counting the electoral votes that would recognize Joe Biden as the next president of the United States. Let’s be exquisitely clear about a few things. The President called for a violent attack on another branch of government. He did so in an effort, however feeble, to keep himself in power despite having lost the election. For the first time in American history, we did not have a peaceful transfer of power.
If ever there were a moment to witness “ambition countering ambition” by way of checks and balances this was it. This is how the American separation of powers is supposed to work. As James Madison argued in perhaps the most famous of The Federalist Papers, precisely because we cannot trust that men are angels, institutions are designed to thwart the concentration of power, to contain the dangerous ambitions of would-be tyrants. And this occurs by “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Forgoing trust in civic virtue, Madison insisted, “The interest of the man must be connected with the constitutional rights of the place.”
But this is not how our political institutions work. At least not Congress. The self-interest of members of Congress does not readily align with protecting Congress as an institution. The constitutional prerogatives of Congress are all too rarely defended by the members of Congress. And that’s partly because Congress is a “we,” not an “it.” Since the early years of the twentieth century, Congress has not functioned as expected. By design, Congress should have a self-interested motivation in defending its constitutional power. Yet as a collective body, the self-interest of Congress may be in deferring fraught issues to the other branches of government—acquiescing in and enabling executive initiative.
Nothing could more clearly illustrate this than the events of 1/6. Before turning to impeachment, the House voted to call on Vice-President Pence to invoke the 25th amendment. But impeachment, not the 25th Amendment initiated within the executive branch, is the proper remedy. Yes, the House impeached Trump with the support of 10 Republican members a week after the Capitol was violently occupied. But the House first took the weekend off. And it has not yet sent the single Article of Impeachment it approved to the Senate. Worse, the Senate went into recess until January 19, the day before Biden will take the oath of office and become president. Even with a violent attack on Congress urged on by a sitting President to disrupt its formal constitutional duties, Congress has been slow to respond. Removal will not occur.
Horrible as 1/6 was, it offered Congress an opportunity. By swiftly impeaching, removing, and disqualifying President Trump from holding public office in the future, Congress could have reclaimed its proper constitutional status. And done so not only defending itself, but defending constitutional democracy. Yes, Congress is designed for deliberation, not quick action. But this case could have unfolded in a matter of days. If this was not an impeachable offense that warranted removal, then it is difficult to imagine what would be. Others have already spoken eloquently and powerfully to the impeachment process and its standards, so I won’t add to that.
Instead of claiming its proper place in the constitutional scheme, Congress risks yet again acquiescing to executive power. This problem long predates Trump. Defending Congress has come to depend not on self-interest, but on civic virtue. This seems especially so when we situate ourselves in the hyper-partisan present. There have been extraordinary moments. Not just Democratic Representative Jamie Raskin’s defense of constitutional government, but Republican Representative Jaime Lynn Herrera Beutler’s insist that the President willfully interrupted the Constitution in process and neglected his oath of office.
Yet based on reporting from the Washington Post, Speaker Pelosi declined to give Republicans who spoke in favor of impeachment extended time. And not a single Republican has been listed as an impeachment manager. This is foolish given how momentous the occasion is, though it can still be remedied.
Still, this pales in comparison to Senator Mitch McConnell, who is content to delay a trial in the Senate until after Trump leaves office. While he may vote to convict after Trump is gone, he seemed most interested in sparing Republicans in the Senate a tough vote between the Constitution and the president they have empowered. It’s all the more tragic because in this case, the long run interest of the Republican Party—and certainly the country—would have been in removing and disqualifying a corrupt president with authoritarian tendencies. It’s a missed opportunity to remove the stain of Trump and begin the slow process of making the party suitable for constitutional democracy.
Congress may yet salvage some of its constitutional dignity if the Senate votes to disqualify Trump from holding office in the future. There are debates about whether a Senate trial is constitutional once Trump has left office. It’s not an obvious constitutional question, but Keith Whittington, among others, has a powerful argument for why it is constitutionally sound.
One silver lining of waiting may be that the more we learn about the events that unfolded on 1/6, the more Republicans will be willing to disqualify Trump from holding office in the future. It could be the accounting the nation needs to begin shoring up our increasingly frail constitutional democracy. Far beyond Trump, it offers the country a chance to recognize and remedy the imbalance of power between Congress and the president.