Published by The Lawfare Institute
in Cooperation With
In the days after a mob of pro-Trump rioters broke into the Capitol Building, the idea of impeaching President Trump a second time has rapidly gained support among members of Congress. Speaker of the House Nancy Pelosi backed the idea in a speech on Jan. 7, threatening to impeach the president if he is not quickly stripped of power by his vice president and Cabinet through invocation of the 25th Amendment. Multiple drafts of potential articles of impeachment are circulating in the House of Representatives, and according to CNN, the House may move forward with articles of impeachment as soon as Monday, Jan. 11.
This would make Trump the first president to be impeached more than once. It would also mark him as the president impeached the closest to the end of his term: As of today, Jan. 8, there are only 12 days until President-elect Joe Biden swears the oath of office. The fact that Congress is seriously discussing impeachment even as the clock on Trump’s term ticks down emphasizes just how alarmed members have become by Trump’s unpredictable behavior as he struggles to hold on to power. “Any day” remaining in Trump’s term “can be a horror show for America,” Pelosi told reporters.
In parsing this rapidly accelerating news cycle, it’s helpful to draw some distinctions between Trump’s original impeachment in December 2019 and the impeachment being proposed in Congress now. The former was a moral necessity, despite—or perhaps because of—the fact that it was doomed to fail in the Republican-controlled Senate. The latter is the answer to an almost entirely pragmatic question: How do we get this dangerous and volatile person off the national stage as quickly as possible—and keep him from returning to any federal office?
The Constitution seems to frame impeachment as a choice by Congress: a matter of discretion, not of obligation. But after the Mueller report was published in 2019, I was among a number of commentators who argued that impeaching Trump was both a moral and constitutional requirement. There are some abuses of power that are just so vile that they require Congress to take up the responsibility for impeachment established under the Constitution and take action against the president who has committed them. Trump’s willingness to accept help from actors linked to the Russian government during the 2016 election, and his many efforts to hamstring the Mueller investigation and turn the Justice Department into a weapon against his enemies, fit that bill.
Congress, obviously, did not agree—and Trump did not face impeachment for the actions detailed in the Mueller report, even after Special Counsel Robert Mueller made clear that he had written the report with the intention of passing the baton to Congress. But when Trump was impeached only six months later for his efforts to extort the government of Ukraine, the House of Representatives incorporated his past conduct into the articles of impeachment against him, noting that his threats to Ukraine and his efforts to undermine the congressional investigations of those threats were “consistent with President Trump’s previous efforts” to solicit foreign interference and hamstring the work of those seeking to hold him accountable. “If we do not act now, we would be derelict in our duty,” Pelosi said at the time. “It’s tragic [that] the president’s reckless actions make impeachment necessary. He gave us no choice.”
There was very little likelihood during Trump’s first impeachment that the Republican-controlled Senate would vote to convict and remove the president from office. No impeached president has ever been removed—Richard Nixon almost certainly would have been, but he resigned before the House was able to impeach him—and the constitutional requirement that two-thirds of all senators vote to remove a president sets a high bar even when that chamber is not controlled by a political party slavishly loyal to the chief executive. Nevertheless, pursuing an impeachment for L’Affaire Ukrainienne, even though it was destined to fail, was valuable because it drew a line: It established that Trump’s actions were, in the view of the House of Representatives, a breach of his oath and beyond the pale for what the United States should accept in its presidents. It marked Trump as one of only three presidents who have been impeached, a spiritual heir of sorts of Andrew Johnson. And it put all Senate Republicans but one on the record as supporting the president’s behavior, or at least arguing that his behavior was not enough to keep him from governing. “Your name will be tied to [Trump’s] with a cord of steel for all of history,” argued House Intelligence Committee Adam Schiff, one of the House impeachment managers, in his closing arguments.
The current impeachment discussions have a different flavor. Trump’s rhetoric of a stolen election, his suggestion on Jan. 6 that his followers should march to the Capitol, his reported unwillingness to respond to the riot—all these are egregious violations of the president’s oath to “preserve, protect, and defend the Constitution” and justify impeachment for high crimes and misdemeanors. But this potential second impeachment is a matter more of pragmatism than of stating national moral commitments.
Trump has committed so many impeachable offenses that the charges at issue in the first impeachment became a synecdoche for all his wrongdoing, a way to mark that not just this behavior but this person was unacceptable as a president. The way Trump’s conduct toward Ukraine echoes backward and forward across his presidency—both recalling his 2017 conversations with FBI Director James Comey and presaging his 2021 bullying of Georgia Secretary of State Brad Raffensperger to try to overturn Joe Biden’s victory in the state—drives this point home. “You will not change him,” said Schiff in his closing arguments. “You cannot constrain him. He is who he is.” For this reason, the first impeachment had a unique and uniquely important moral force.
There certainly would be a normative component to an impeachment over the Capitol riot, as there is to all impeachments. Members of Congress, though, have indicated that they are focused less on drawing a moral line than on getting Trump out of the Oval Office, where he could potentially do a great deal of harm in his remaining 12 days as president. Think of the anxiety of Nixon’s defense secretary, James Schlesinger, who became alarmed that the depressed and inebriated president might launch an ill-conceived nuclear attack in his last days in office.
The brute practicality of the current impeachment discussions is apparent in the rhetoric of congressional leaders, who are treating impeachment as just one potential tool in a larger toolbox of methods to remove Trump from office. Pelosi threatened impeachment by next week unless Trump resigns or Vice President Mike Pence and the Cabinet fail to strip Trump of his power under Section 4 of the 25th Amendment. (Even some of Trump’s usual allies, such as the Wall Street Journal’s editorial board, have joined the calls for resignation.) But impeachment and the 25th Amendment serve very different roles. As Brian Kalt has written, Section 4 was designed to remove a president from office in case of an “inability to discharge [his] powers and duties.” Writing in Lawfare after the Capitol riot, Jack Goldsmith and David Priess pointed out that the amendment “was not intended as a mechanism to remove from power a physically functioning president who simply lacks the capacity of character to perform his oath and who is wielding the powers and platform of the office in historically destructive ways.” That is the function of impeachment—but if the goal is just to get rid of Trump in any way possible before he causes more damage, then the 25th Amendment will do just as well.
This time around, Pelosi isn’t talking about the duty of Congress and how she has no choice but to move forward with impeachment—she’s pushing to get Trump out whatever way she can. Goldsmith and Priess note that the 25th Amendment has the advantage of speed, and Pelosi and other members of Congress seem willing to let Pence be the prime mover if it will resolve the immediate danger.
Regardless, the New York Times reports that Pence is opposed to removing the president under the 25th Amendment. And it seems unlikely that Trump, who is so dedicated to holding on to power that he was willing to foment a riot, will resign. That leaves the impeachment process.
As Goldsmith and Priess write, it seems unlikely that Congress can manage to both impeach and remove Trump from office before his 11 remaining days are up—especially if the House waits until next week to make its move. House Judiciary Committee Chairman Jerry Nadler has indicated that he would be willing to dispense with some of the formalities of the impeachment process and send articles of impeachment straight to the floor of Congress, rather than routing them through the Judiciary Committee under normal proceedings. This would speed the process, but even if the House votes quickly, the Constitution requires that the Senate “try” Trump. Would Senate Majority Leader Mitch McConnell be willing and able to lead the Senate in changing its rules to expedite a trial?
But this doesn’t mean that there’s no point to impeaching Trump a second time. A pragmatic impeachment can have a tangible impact, even if it doesn’t result in removal before Jan. 20.
Articles of impeachment often include a provision disqualifying the impeached person from holding future office: The articles of Trump’s first impeachment stated that “President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” That provision did not go into effect because the Senate failed to convict him. But if the House impeaches and the Senate convicts in the waning days of Trump’s presidency—or even after Trump leaves office—a disqualification along these lines would hold real significance. A successful Senate vote would obviate the very real threat of a second Trump run for president in 2024—the dangers of which should now be obvious.
The real question, then, is whether there are enough Republican senators to quickly try and then to convict the president. Sen. Mitt Romney, the only Republican who voted to convict Trump the first time around, has indicated skepticism over a second impeachment process, saying, “I think we’ve got to hold our breath” until Jan. 20. On the other hand, Sen. Ben Sasse told CBS he’d vote to remove Trump. Conservative anti-Trump activist George Conway tweeted this morning that he’d tallied 67 votes to convict, though he didn’t provide a head count. Senate Republicans have soured on Trump since the riot in the Capitol, but have they soured this much? Months from now, it will be easier for senators to sweep what happened on Jan. 6 under the rug if they can move forward without putting themselves on the record to convict the president.
In 2019 I insisted that the House should impeach Trump even if the Senate would not convict. In 2021, I’m far less certain. Trump has already been tarred with impeachment and repudiated by a majority of Americans as a one-term president. The first impeachment was a condemnation of Trump’s presidency as a whole; a doomed second impeachment would raise the question of whether Trump’s exhortations to the soon-to-be rioters are really worse than everything else, except Ukraine, that he’s done over the course of his presidency. (If the House wants to go down this route, after all, why hasn’t it impeached him again and again and again for the many other high crimes and misdemeanors he’s committed?) The picture changes, though, if enough Senate Republicans are ready to vote to remove Trump—if they act quickly enough—and at least bar him from future office. The president is a danger to the republic. The most important thing is just to get him out of there.