The US Senate’s failure to convict Donald Trump for instigating the January 6 riot in the Capitol, for which the House of Representatives had impeached him, leaves the question of whether the US Congress has any effective means of holding a president to account for acts against the Constitution. The nation’s Founders had sought to prevent a president from enhancing his own powers to the point of becoming, in effect, a king. Under Trump, America’s constitutional system had a dagger pointed to its heart: a president who refused to recognize that he had lost an election and was willing to use a mob to physically attack a supposedly co-equal branch.
America’s Founders made conviction by the Senate, which brings removal from office, for an impeachable offense – which need not be a statutory crime – very difficult by requiring a two-thirds vote. A president, they believed, should not be removed from office as a result of a national mood swing.
No president has been removed from office through impeachment by the House followed by conviction by the Senate – Richard Nixon resigned because he was told by leading congressional Republicans that he had lost sufficient support in the Senate to stay in office. Essentially, to remove a president from office is to nullify the vote of the people. Moreover, that person is likely to retain a hold on at least a segment of his party. Indeed, until not long ago as US history goes, politicians were loath to even bring up the subject of impeachment.
The Nixon near-impeachment and removal from office in 1973-74 was the historical turning point. When there arose the first serious talk of impeaching Nixon after he fired a series of attorneys general in order to remove the special prosecutor, Archibald Cox, it was widely considered an awesome, even terrifying, proposition. This was the first time the subject had seriously come up since President Andrew Johnson’s near-removal in 1868. Since Nixon, the idea of employing such a remedy has arisen far more frequently.
The fundamental problem with the impeachment process as a method for holding a president accountable is that the relevant clause in the Constitution, written in 1787, was designed for a different political landscape than what the US has had for most of its history. At the time, the nation did not have actual political parties. The Founders, indeed, feared “factions,” or parties, which developed as the debate over the proper role of the federal government grew.
In his Farewell Address, George Washington warned of “the baneful effects of the spirit of party.” This spirit, Washington warned, had “its root in the strongest passions of the human mind.” In addition, Federalist Paper No. 10, written by James Madison, was an indication that the Constitution was written in the spirit of opposition to political parties.
One reason to doubt the efficacy of impeachment and conviction as an instrument for removing (at least a Republican) president is that since each state has two senators, small states, whose populations tend to be rural and conservative, have excessive power for their relative size. But the great difference between the impeachment processes pertaining to Nixon, on which there was a bipartisan consensus, and those pertaining to Trump stems mainly from profound changes in the Republican party.
The Republicans of Nixon’s day were far more centrist and less vindictive than today’s Trumpist party. While Nixon retained the loyalty of Republican party members, people were not threatened with expulsion for seeking his removal from office. It was fear of some future opposition that led Republican nobs to go to the White House to tell him that he did not have the political support in the House or the Senate to remain in office – so that they would not have to cast votes on the matter.
In announcing that she would vote to impeach Trump, Representative Liz Cheney, a true conservative (and daughter of former vice president Dick Cheney), said: “there has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” Cheney spurned Trump’s weeks-long stoking up of the radical-right by claiming, falsely, that the election had been stolen from him, and then urging a mob to go to the Capitol precisely while the Electoral College ballots were being counted, and “fight like hell.”
In response, Cheney was censured by the Wyoming Republican party and her position as third in line of the House Republicans was challenged in the party caucus.
Jamie Raskin, the lead House prosecutor, alongside his eight colleagues, did a masterly job in making the case against Trump. Raskin is also a constitutional law professor, so when I spoke to him late Saturday following the close of the Senate proceeding, I asked if, given the very different circumstances between the time of the drafting of the Constitution and now, and given the outsized power of small states in the Senate, he ever expected there to be a two-thirds vote for convicting Trump. Raskin replied: “I always thought there was a better chance of our getting 100 votes than 67. I thought that when we presented our case, the bottom would fall out from Trump’s side.”
Raskin continued: “But apparently there are no depths too low for some of our GOP colleagues to sink. We’ve arrived at a point in history where a once-great party can behave like a cult. Facts, logic, and the rule of law have dropped out of the equation.” Raskin attributed this to the fact that “their leader is exercising psychological, financial, and political control over his followers. He has assembled a war chest that strikes fear among Republicans.”
Raskin concluded by saying that “the political party system has taken over the congressional system. It’s not two branches that govern congress now, but two parties, and one of them has surrendered reason and common sense.”
Trump may have escaped being convicted by Congress for instigating a murderous mob attack on America’s Capitol, yet it seems clear that he will be held accountable for it in history.
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