Convict and Disqualify Trump

By Dan McLaughlin

Friday, January 15, 2021

 

Impeaching Donald Trump a second time was a drastic step, but it was justified, no matter how shoddily and insincerely it was executed by House Democrats nor how selective was their outrage. Senate Republicans should do the right thing: vote to convict Trump and disqualify him from ever holding federal office again.

 

I am not normally in the habit of writing on subjects before I have entirely made up my own mind on them, but while my column last Thursday laid out both the case for Trump’s removal from office and the dangers of doing so, I had not entirely come to a conclusion on the prudence and constitutionality of impeaching him. I have now.

 

It is the proud boast of the United States of America that we have the oldest continuous constitutional government in the world, in which nothing — not terrorist attacks, not depressions, not pandemics, not hurricanes, not foreign wars, not the burning of our capital by invaders, not even civil war — has stopped our government of laws or impeded the timely, peaceful transfer of power between opposing political parties and candidates. The Capitol riot on January 6, given its timing around the pivotal constitutional process of counting electoral votes to effectuate such a transition, took direct aim at that central pillar of our American system. It emboldened the foes of democracy, republicanism, and constitutionalism around the globe who have long been shamed by our example.

 

There must be grave consequences for that. And as is true whenever society as a whole is threatened by such an outrage, those consequences must be sufficiently spectacular to deter any repetition so long as our national memory endures. Those who participated directly must be punished relentlessly to the maximum extent of federal law, without cease or mercy. And they should be confronted with vivid evidence that their cause failed utterly and permanently. The riot was inspired by Trump, and carried out by a faction of his supporters. Imposing consequences on Trump himself, and barring him from ever again holding federal office, will accomplish that end. In a less squeamish time, both Trump and the rioters would justly have had their heads mounted on pikes outside the Capitol as a warning to all.

 

What would George Washington do? What would Abraham Lincoln do? What would William Tecumseh Sherman do? What would Calvin Coolidge do? What would Harry Truman do? What would Ronald Reagan do? The making of harsh and unforgiving examples has always been the American way of ensuring that some outrages are never repeated. Harsh example for deterrent effect was the theory of Trump’s own policy to prevent crossings of the Mexican border, even when the harshness fell on innocent children. He should be prepared to take that medicine now himself.

 

Is it unfair to punish Trump, who did not personally participate in the riot, and who did not explicitly call for violence? Hardly. As I have detailed previously, when you take in the entirety of Trump’s speech and its context, he bears moral and political responsibility for inspiring the Capitol riot, and for putting a target on Mike Pence’s back. True, Trump’s conduct falls just shy of the narrow legal definition of inciting riot or rebellion. True, it is becoming increasingly clear that some of the forces he summoned to Washington on January 6 came prepared for violence in advance, and commenced it even before he was done speaking. But leadership entails responsibility, not pettifogging efforts to backtrack after things you set in motion, and have nurtured for two months, have gotten out of hand. There comes a time when the man at the top must be the man who accepts the blame.

 

Trump’s behavior on January 6 was extraordinarily reckless. It had foreseeable and horrendous consequences. And it did not happen in a vacuum. It was the culmination of two months of lies, conspiracy theories, increasingly vexatious litigation, efforts to pressure state legislatures and elections officials his way, open pressure on the vice president to disregard settled federal law, and baseless volcanic rhetorical blasts at the integrity of the entire American system. Many of those actions were not, by themselves, impeachable acts; but taken together, they constitute a massively irresponsible violation of Trump’s oath of office. They form the backdrop for why he should be held politically accountable for the riot and siege at the Capitol. Anyone reading these events in a history book, uninvested in the individual participants, would recognize this.

 

This is before we even get to the events that are now suspected, but not fully developed with on-the-record evidence. There were unconscionable delays in deploying the National Guard, which unnamed sources have claimed to be due to Trump’s distraction, or to his reluctance or resistance to do so. A Senate trial should explore, in public and under oath, whether Trump was derelict in his duty to protect the Capitol. While that may or may not be impeachable on its own, it forms an additional part of the course of conduct for which he now stands in the dock.

 

Moreover, Trump has skated consistently close to the edge for his entire tenure in office. He has already paid for that the symbolic price of once before being impeached, and paid again what is usually the ultimate political price: defeat for reelection. If he had left office without further fuss, we could say that the lesson was enough. The fact that his misbehavior escalated significantly following the verdict of the voters suggests that a further lesson is required. It now appears that the Senate trial will not commence until after Trump has left office. While there is some debate on the point as a constitutional matter, the structure and history of the Constitution shows that the Senate can still convict Trump in a trial after he’s already left office.

 

In order to drive this lesson home, and ensure that a conviction after leaving office still carries a sting, the Senate should take a step laid out in the Constitution, but which it has used only three times in American history: disqualification of Trump from ever holding “any Office of honor, Trust or Profit under the United States” again. As Alexander Hamilton wrote in Federalist No. 65, “The true spirit of the institution” of impeachment is “designed as a method of NATIONAL INQUEST into the conduct of public men,” not merely the removal of unfit characters, and its target would be “sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country.”

 

Hamilton considered this a fundamentally political remedy for “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” He continued, “[Such offenses] are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” In Federalist No. 66, he used as an example of a potentially impeachable offense “betraying the interests of the nation in a ruinous treaty.”

 

Senator Samuel Maxey of Texas, in the impeachment trial of William Belknap in 1876, described what the Framers of the Constitution expected to be the consequences of disqualification, and why they provided it as a remedy from which there was no possible appeal:

 

Removal from office . . . is a trifling matter. It is done almost every day, sometimes with, sometimes without, cause, and does not have perceptible influence on the political and social standing of the officer removed where trial is not had; but the man under sentence of perpetual disqualification to hold any office of honor, trust, or profit under the United States is as completely ostracised from his fellows as the Man in the Iron Mask was isolated in his lonely cell. The felon may be pardoned; the man disqualified by the judgment of the court of impeachment never. We know not what is the unpardonable sin which excludes its perpetrator from all hope of entering the portals of heaven, but this we do know, that a man who stands convicted of his crimes and misdemeanors committed while in office, and is sentence by the court of impeachment to perpetual disqualification, is held by public opinion to be a living, moving infamy, a moral leper, shunned by his fellow-man and without hope of pardon this side the grave.

 

And this supreme punishment is . . . inflicted not only to get rid of a bad man in office, not only to prevent that man ever being restored to office, but chiefly, by fearful example, to teach all men that American institutions and the perpetuation of free government, of the people, by the people, and for the people, demand purity in office. It says to all the world, in fearful language, that he who obtains office, however exalted be his social and political station, and who betrays his sacred trust by the commission of official crime, and upon fair trial is found guilty and sentenced by this court to perpetual disqualification, unlike the ordinary felon, is beyond pardon, because he has betrayed, to the hurt of all the people, a great trust. It teaches all men that the public offices of the land, to which the humblest citizen may aspire, are forever closed against him, because he has been weighed in the balance and found wanting.

 

This is how Trump should be remembered by Americans. He should be remembered this way because of his false, sustained attack on the legitimacy of a free and fair election, culminating in a riot by his followers — immediately after he directed them down Pennsylvania Avenue with an incendiary speech — against the very process of counting electors to transfer power at the direction of the governed. I say this even though Trump did a number of good things in office, for which his administration should otherwise be recalled fondly. Benedict Arnold’s heroism at Fort Ticonderoga and Saratoga can be recalled fondly, too, but his name is nonetheless forever linked in American history to treachery.

 

American partisans have, as I have discussed at length before, gone much too far down the perilous road of attacking the legitimacy of American elections over the past two decades. Trump has made a point to import into the Republican Party the ethos of routine assaults on the legitimacy of elections that has long prevailed among Democrats. It is time for that to end, and end in decisive fashion, such that Trump’s fate can be used as an example forever more. Some on the right would argue that, since Democrats have never been held to account for pushing election-delegitimizing nonsense, Trump should not be, either. But you have to start somewhere; holding your own to account sets down a marker that can be used later as a precedent against others. And Trump did not just attack the legitimacy of the election; he did so in a way that stirred up a violent assault on the very counting of the votes. Setting an outer boundary at challenges that end in bloodshed and the evacuation of the Capitol is hardly an unreasonable place to start. If it causes future political leaders to keep a wide berth of ending there, all to the better.

 

The same goes for “Oh, now, Democrats think riots are bad” arguments. Well, yes, they are raging hypocrites about that, with Kamala Harris even having gone so far as to stump for donations to bail out rioters from jail. But they are wrong, and we are not them. Riots are bad, period. Going easy on them is bad, period. If we are going to plant our feet somewhere on that ground, it has to start with showing the world that we mean it even when the people rioting are in “our” tribe. A Republican Party that does not stand foursquare against civil disorder against the republic is unworthy of the name.

 

The case for prudence, for avoiding an impeachment fight, is moot now. We have such a fight, whether we like it or not, and we must decide how it should end. The prudential case for stepping back from the brink of a first-ever vote to convict a president is weaker with the vote coming after Trump has left office. While disqualification is a powerful remedy, it is also less divisive than removal. One of the major reasons why I did not support removing Trump from office in the last impeachment, and have been concerned about doing so even now, is that presidents have democratic legitimacy, and removing them from office deprives the people of their chosen leader. That is not a reason to never remove a president, but doing so for a political offense (rather than for treason, bribery, or other crime in the law) should not be undertaken without a clear popular groundswell to do so.

 

Now, however, the people have had their four years of Donald Trump. The Constitution squarely authorizes the remedy of disqualifying him from holding office again. A Senate trial during the Biden presidency is not a “coup,” because it will not affect who holds power. It is not an attack on Trump’s voters, who will go on just the same, and choose whomever else they wish to represent them in the future. In a republic, no man is indispensable. It is simply an accounting — Hamilton’s “national inquest” — to hold Trump personally responsible for his conduct in office. It is the judgment of history.

 

There are two other systemic reasons to want Trump’s outrageous provocations and derelictions from duty to be dealt with by Congress, through an established process for political accountability. One reason is to salvage impeachment as a tool for holding the executive branch to account. The Framers, ever-vigilant about threats to liberty and breaches of public trust, saw impeachment as an essential safeguard and control against both federal and state executives. While impeachment continues to provide occasions for removing bad federal judges, and continues to be used against governors, there has not been a single successful impeachment and conviction of any member of the federal executive branch in American history. That is an abandonment of our constitutional heritage. The failures of the 1998–99 Bill Clinton impeachment and the 2019–20 Trump impeachment have taught the American people to see impeachment as a tool of partisan mischief and a test of partisan strength, rather than a protection of the system against bad men. The extremity of the Capitol riot and the ability to hold a vote that does not actually strip anyone of power should be an occasion for a vote that restores a core commitment of American government to decency and order.

 

The other reason is that promoting the tools of accountability given to us by the Framers for use within the political system is an alternative to the ugly trend of criminalization of politics. Trump’s enemies on the left have spent five years now trying to get him locked up. They will not stop when he leaves office. And the trend of stretching creative interpretations of the criminal law to settle fundamentally political disputes and handle fundamentally political offenses has been ongoing since well before Trump’s escalator ride in 2015. It is a much more toxic and dangerous brew than the risk of overusing impeachment, which carries more direct political costs for its abuse, presents fewer risks to individual liberty, and can succeed only with broad, bipartisan support.

 

Finally, there is the question that haunts Republicans: Is this suicidal for the party? That is not just a self-interested question; the nation needs two healthy parties, and it particularly needs the one party that actually sticks up for the American constitutional order, for life and for liberty. There was an opportunity, after the election, to move on from years of draining intra-conservative and intra-Republican fights about the person of Donald Trump. The results on November 3 shored up Republicans at the state level, ate away at the Democratic majority in the House, demonstrated the potentially broad coalition of Republican voters available in a high-turnout election, and appeared to have saved the Republican majority in the Senate. All Republicans had to do was turn to the next page and begin the process of working out, from an unusually strong starting point for an opposition party, how to make the pieces fit together.

 

One man decided to blow that all up. Trump’s fixation on his false claim that the presidential election was stolen became a litmus test — either a way for people to demonstrate their loyalty by their willingness to peddle falsehood, or a wedge between voters and those leaders who refused to do so. This was entirely unnecessary for the party, but it illustrated Trump’s desire to ensure that nobody could enjoy the fruits of any victory if there was any risk that their victory was not dependent upon him and did not advance his own personal self-interest. He acted at all times as if he would rather, if he must go down to defeat, that he take everyone else with him. Reputations and careers have been ruined or badly tarnished as a result, whether they be those who stood up to Trump (such as Brian Kemp and Brad Raffensperger), those who threw their lot in loudly with him (such as Ted Cruz and Josh Hawley), or those who ran out of room to avoid being forced to take a side (such as now-ex Senators David Perdue and Kelly Loeffler). By dominating the news for two months with this ill-considered and increasingly unhinged tantrum, Trump handed the Senate to Chuck Schumer.

 

Political payback is no reason for impeachment; my point is that the divisive effort to make Trump’s lies and now the Capitol riot the sole, continuing loyalty test for Republicans has already begun. There is no avoiding it. Every effort was already made to give Trump a graceful, face-saving way out, and he spurned it. There is every reason to believe that Trump, in 2024, will make it his first priority to ensure that no other Republican can win the presidency. Recall how, in 2015, he used the credible threat to bolt, run third party, and ensure a Hillary Clinton victory as a tactic for freezing his opponents’ willingness to criticize him. Surely, if the party tries to mobilize behind any other candidate four years from now, he will repeat the tactic. The surest way to lance that boil is not only to bar him from holding the office again, but to do so in advance in order to deprive the threat of any weight.

 

Depriving Trump of the threat to run again, and of the threat to run third-party, will significantly diminish his influence. That is good and healthy not only for the party but for the nation. After all, in 2016, whenever Trump lost in the primaries, he charged some sort of fraud or rigging against him. After the Capitol riot, there is every reason to believe that Trump would do so again, and every reason to fear that his words would lead to the intimidation of Republican primary voters worried about what happens if he loses. That fear is real, and it is Trump’s doing. Casting him into the outer darkness to wail and gnash his teeth, whence he can never return as a candidate for office, is the only way to put an end to this and resume the business of focusing the Republican Party again on winning elections and on using public office to deliver what voters want from government.

 

That is democracy. It is the American way. Every last one of the 74 million Americans who placed their trust in Donald Trump to uphold his oath and abide by the American system has been personally betrayed by him. It is time for 17 Republican senators to stand up and say: Enough.