A Clear and Present Danger
Why Donald Trump must be removed from office
After a violent, pro-Trump mob stormed the Capitol Building in attempt to overturn the results of the 2020 election, the House of Representatives on Wednesday impeached Donald Trump for incitement of insurrection. He has now become the only president in United States history to face removal by the Senate for the second time.
With less than one week until President-Elect Joe Biden assumes office, some have questioned whether impeachment was the right decision. After all, there is little time left for the Senate to convene and hold a trial, and even then, a conviction would remove Trump with only a few days remaining in his term.
However, removal from office is not the only penalty incurred by the president in the case of a Senate conviction. As the late Constitutional law professor Charles L. Black noted in his book Impeachment: A Handbook, the Senate has the option “to impose the additional penalty of disqualification from office.” In other words, a president found guilty of committing an impeachable offense, either “treason, bribery, or other high crimes or misdemeanors,” may be barred from holding any political office in the future. Since Donald Trump has only served one term and has reportedly discussed running again in 2024, the coming Senate trial has serious implications for his political future.
So the question remains: should the Senate vote to convict Trump of incitement of insurrection? In order to answer that, we have to first ask and answer a series of other questions.
Is Donald Trump guilty of incitement of insurrection?
First, and perhaps most crucially, we must determine whether or not the president is guilty of the crimes of which he is accused. Did Trump incite the January 6th insurrection?
Absolutely, yes. There is a remarkably strong evidentiary record of Trump’s guilt. As a testament to this fact, the January 13th House vote was the most bipartisan impeachment vote in U.S. history, with 10 Republicans joining the Democrats to indict the president for his conduct.
For months, Donald Trump has lied about the 2020 election, claiming that he won and that it was stolen from him. His legal team has repeated unfounded claims of conspiracy and fraud, claims which have been universally rejected in federal court. What’s more, he has made clear the stakes of allowing an allegedly fraudulent election to install a new president.
On January 6th, as Congress met to certify the results of the 2020 election, Trump told a crowd of his armed supporters that if Biden became president “Our country will be destroyed, and we’re not going to stand for that.” Headlining at an event he called the “Save America” rally, he told his most ardent fans that
We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore and that’s what this is all about.
He added “If you don’t fight like hell you’re not going to have a country anymore.” All this at a rally he advertised in multiple prior Twitter posts, one reading “Big protest in D.C. on January 6th. Be there, will be wild!”
So the president lied about a stolen election using universally rejected and demonstrably untrue claims about voter fraud. He then told a crowd of thousands of people who believed these lies that they need to “fight like hell” to preserve their country. And to top it off, he encouraged them to march to the Capitol Building, where the violence took place just minutes later:
After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here [sic]. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women.
His supporters got the message. As Capitol police tried to prevent the mob from breaching the building, some shouted “We were invited here. We were invited by the president of the United States.”
So yes, Donald Trump certainly incited the violence at the Capitol. As the impeachment report prepared for the House Judiciary Committee succinctly concludes,
The timeline of events demonstrates that President Trump encouraged and incited the violent and seditious events that occurred. Moreover, the lawlessness that resulted from President Trump’s conduct was entirely foreseeable by the President (p. 18).
Even with the understanding that President Trump is guilty, the brief time for which he will remain in office still raises an important follow-up question: is impeachment the right remedy? In other words, why bother this close to the end of his term? Can he really do that much harm in under a week?
What harm can Trump do with his remaining time in office?
Impeachment advocates like myself must contend with this crucial question. Convening the Senate on such a truncated schedule is certainly unprecedented and the process of conducting an impeachment trial is undoubtedly divisive for the country. Do the benefits of removal outweigh the harms of a shortened impeachment trial?
In my view, yes, because there is a lot that Trump can do with mere days left in his presidency. For one, as long as he is in office, he can issue presidential pardons. Trump has already done this for a number of those implicated in the Mueller investigation, including Paul Manafort, Georgia Papadopolous, Roger Stone, and Michael Flynn. There is little doubt he would do the same for those arrested during the insurrection, or preemptively for his oldest children, as he is reportedly considering at the moment.
Trump has also teased at a self-pardon for years, something aides say he is now seriously considering given the impending loss of his presidential immunity. Misuse of the pardon power is obviously concerning for anyone who cares about corruption and the rule of law.
But the dangers of Trump remaining in office are much greater than the possibility that a string of white-collar criminals escape punishment. As president, he still commands the armed forces and has the nuclear codes. With new reports of Trump’s instability emerging each day — including from his own vice president — removing these powers from his grasp becomes a matter of national security. In fact, Nancy Pelosi has even spoken with the Chairman of the Joint Chiefs of Staff to come up with ways to prevent President Trump from engaging in reckless military action or nuclear attacks.
Even if all of these fears are exaggerated, there is still the undeniable fact that Donald Trump incited the January 6th riot as president. And there is some evidence, though admittedly inconclusive, that the siege on the Capitol was not just a demonstration but a deliberate coup carried out by the President of the United States with the knowledge and support of federal law enforcement officials. There is no telling what an unstable, erratic president who has already engaged in such behavior would do to maintain power — but a swift conviction by the Senate means that we do not have to find out.
Should the Senate still convict after Trump leaves office?
Realistically, a Senate trial won’t occur until after January 20th, meaning that Trump would no longer be the President. This leaves us pro-impeachment folk with one last question: if the Senate is unable to hold a trial before January 20th, what is to happen to Donald Trump?
Well, there will be a trial regardless of who is president at the time. Since the House of Representatives has impeached Donald Trump, the Senate has a Constitutional obligation to hold a trial, even if it occurs retroactively.
The weight of a conviction during a post-January 20th trial would then be on the ban from future political office. This is an outcome worth pursuing even during a Biden administration.
The January 6th insurrection is not without precedent. Donald Trump has repeatedly attacked American institutions and displayed a patent disregard for democratic norms. Just three days before the attack on the Capitol, Trump pressured the Georgia Secretary of State to illegally overturn the state’s electoral results. He has berated the free press as the “enemy of the people,” suggested delaying the 2020 election, accused his political opponents of treason, suggested he serve more than two terms, had the Department of Justice intervene in his personal lawsuits, and, as mentioned above, tried to overturn the results of a free and fair election that he lost.
Donald Trump evidently has no commitment to democracy and the events of January 6th show that more clearly than anything. His incitement of insurrection perfectly fits into a pattern of autocratic behavior that seemingly has no limit. Those of us who have warned about the dawn of American fascism have been vindicated, and those who have downplayed the threat Trumpism poses to our Republic have been proven gravely wrong.
The man has no business serving in our government ever again. Even if he finishes his term with no further violence, pardons, or attempts at undermining democracy, his actions cannot go unpunished. Donald Trump must be convicted in a Senate trial. American democracy very well might depend on it.
