Benjamin A. Kleinerman is the Editor of The Constitutionalist and the RW Morrison Chair of Political Science at Baylor University in the Department of Political Science.
Although this essay will say much about why impeachment is a necessarily political question, I plan to say almost nothing about the current politics of impeachment. I think he should be impeached. This losing President incited a mob to attack the capitol just as Congress counted the electoral votes. That seems to me to amount to a poorly executed coup. And he failed to live up to his constitutional oath by doing almost nothing to respond to the attack. He preferred instead to watch it play out on television; some accounts report that he was frustrated that more of his staff wasn’t excited about what was happening. If we don’t impeach this president for this behavior, we might as well delete the impeachment clause from the Constitution. I would say that impeachment is as much or more a political question as it is a legal question. But I’m not sure that case even has to be made. I think there’s an argument that the President’s speech literally broke the law. He created an angry mob and then incited them to do violence to the Capitol toward which he pointed them. That being said, I think it highly likely he won’t get impeached and I also think it highly likely that most of the Republicans in the Senate won’t take their duty seriously.
On the question of giving the Senate the power to conduct an impeachment trial, Publius writes: “The difficulty of placing it rightly in a government resting entirely on the basis of periodic elections will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.” In other words, the founders would not have been surprised that the Senate seems incapable of putting aside its partisanship and considering the actual merits of this impeachment. The founders attempted to encourage them to put their politics aside by reconstituting the Senate into a courtroom and bringing the Chief Justice himself in to conduct the trial. That is, the founders wanted these Senators to do everything in their power to become something closer to objective jurors rather than partisan politicians.
Of course, however, the founders could seemingly have made this even easier. If the aim truly is to consider the legality of the President’s actions, why not have the Supreme Court consider the case? Wouldn’t these judges be able to evaluate legality better than Senators? In this case, Trump’s impeachment would be obvious to impartial judges in a way that it isn’t obvious to partisan Senators. To understand why the Senate has the power to convict an impeached President, we must see that impeachment and conviction is not, strictly speaking, about the law. Impeachment is both a political and a legal question, which is to say that it’s a constitutional question. To what extent did the President fail to live up to his constitutional responsibilities in such an egregious manner that he ought to be impeached? Because it is both legal and political, judges aren’t capable of deciding it well. Publius writes, “Impeachments can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges.” Judges are capable of using the law and the facts of the case to determine whether a law has been violated. There are many things that a President could do that, although they might not violate any law, are still impeachable. And, on the other hand, there are things presidents might do which, although violating a law are actually a fulfillment of their constitutional responsibilities. If a President were to announce that he hates black people and will do everything within the law to make sure they cannot succeed in the United States, he would have violated no law. This would be within his First Amendment rights. But, although legal, it would still be impeachable. Precisely because impeachment is about more than the law, judges are inappropriate for the decision. Because impeachment is about more than just politics, the Senate must be turned into a courtroom. Impeachment revolves around maladministration and this involves the question of improper as opposed to illegal behavior. Whether the President has failed to live up to his constitutional oath, as is the question here, is a constitutional judgment that cannot be made in a Court of law. The Senate ought not impeach a President merely because they don’t like his politics. But impeachment is appropriate, again quoting Publius, “as a bridle in the hands of the legislative body upon the executive servants of the government.” More generally, impeachment must be conducted by a political body because it is “a method of national inquest into the conduct of public men.”
At a fundamental constitutional level, we need to think of impeachment politically because the nature of presidential authority itself is outside the law. It would make no sense to impeach a president for illegal behavior. Their oath demands that they “preserve, protect, and defend the Constitution.” To do this, they might sometimes have to take actions that, if done by a private person, would be simply illegal. This isn’t to say that presidents have an inherent right to take actions outside or even against the legal order. I’m not saying, to quote Nixon, that “if the President does it, it means it isn’t illegal.” But I am saying that when, to take the classic example, Lincoln suspended the writ of habeas corpus despite not having the legal authority to do so, his behavior, though illegal, was constitutional. He fulfilled his oath even as he broke the law. If Lincoln were to have been tried for impeachment, we ought not judge his law-breaking but instead judge his oath-fulfilling. Because so much of what presidents do lies in the realm of discretion, it would make no sense to hold presidents to legal standards that don’t apply to them in the same way. If the average citizen ordered, as President Bush did on 9/11, that any plane that wouldn’t come out of the sky will be shot down, it would be a violation of the law. Because it was the President, it ought be judged differently. Presidents can’t generally be prosecuted for what they do as President precisely because presidents occupy some realm of sovereignty that makes the law apply differently to them than to others. They are not above the law; they are beside it.
But even as presidents are somewhat free of the law in that sense, they are, at the same time, more controlled by constitutional commitments. Until Trump, there were all kinds of norms of presidential behavior that controlled what they could and couldn’t do. To use their platform, whether it be twitter or a press conference, to attack people in a personalistic and base manner isn’t illegal, but it’s definitely unpresidential and, in that sense, fails to live up to the constitutional responsibilities of the office. Most of the Trump Presidency failed to live up to the constitutional responsibilities of the office.
With all that in mind, the question whether he can be impeached after he leaves is also a political question that should be left to Congress to decide. There are good structural arguments for allowing this impeachment, else presidents wouldn’t fear the repercussions of their behavior at the conclusion of their Presidency. Just as Bill Clinton pardoned long-time political supporter Mark Rich at the conclusion of his presidency so too did Trump incite a riot to attack the capitol at the conclusion of his…I’m not suggesting that they’re comparable.
In the end, in order to tell Congress that it cannot impeach presidents after they leave office there would have to be a clear open and shut legal argument. If there were no precedents for such impeachments and no way of reading the Constitution so as to permit them, perhaps then we should simply close the book on the Trump presidency. But it’s a sticky and debatable legal question. I’m not a constitutional lawyer but well-respected constitutional lawyers line up on both sides of this question. And so, rather than using the law to foreclose the critical judgment that we ought make right now about the irresponsible and unconstitutional behavior of a former president, we should instead encourage the impeachment to go forward so as to insure such behavior is never permitted. Transitions of power have always been dicey in democracies. We have been fortunate that they’ve never been so here. Hence we must be vigilant against this kind of behavior and we must hold responsible those who commit it. Without a post-presidency impeachment, we can’t exercise that responsibility.