{B} race yourself: It’s about to be 2024. A former president of the United States, Donald Trump, is the prohibitive favorite to win the Republican nomination to seek the office again. He could have it locked up in the next few weeks. Were he to win in November, he’d become just the second president in American history elected to non-consecutive terms. (It hasn’t happened since Grover Cleveland: 1885–89 and 1893–97.) Nevertheless, Trump is currently being prosecuted by the administration of his likely Democratic opponent, incumbent President Joe Biden, on felony charges that theoretically could result in decades of imprisonment.
I am among the harsh critics of Biden Justice Department special counsel Jack Smith’s indictment of Trump on charges arising out of the former president’s appalling abuses of executive power in the two months between the 2020 election and the Capitol riot. I am also among the first to contend that Smith’s indictment of Trump is a proxy — a do-over, if you will — for the political system’s failure to impeach, remove, and disqualify Trump after the riot.
I suppose it’s only natural that these two positions get conflated. But they shouldn’t — or, better, I should explain them better so they don’t.
The do-over argument is not a rap on Smith. It’s not even a rap on do-overs, per se. “Do-over” has a pejorative connotation, probably because we’re predisposed against allegations that smack of double jeopardy, even when that doctrine is technically inapposite. Such a context is impeachment: There would be no bar to a second post-riot impeachment of Trump, this time investigated and pleaded competently.
In 2022, I made such a proposal (e.g., here, here, and here). The idea was to revamp the House’s January 6 Committee, which was in effect doing the investigation majority Democrats had failed to do in the slapdash, politicized “incitement of insurrection” impeachment article the House adopted a week after the riot. I thought the committee needed both bipartisan credibility (which, as composed by then-Speaker Nancy Pelosi, it did not have) and unapologetic transparency about what should be done: a thorough probe that would propose articles of impeachment, which would, at long last, accurately match Trump’s derelictions between Election Day and the Capitol riot. Constitutionally speaking, that would have been preferable to the committee’s flashy but inconsequential “criminal referrals.”
This was not a naïve proposal — at least, I’m not going to cop to an accusation of naïveté leveled by people who think the way to deal with Trump is either criminal prosecution (which wouldn’t disqualify him and, predictably, has skyrocketed his poll numbers) or a crusade (as loopy as it is futile) to disqualify him under Section 3 of the 14th Amendment.
I get impeachment’s futility at this stage. Trump supporters wield outsized influence over Republican Party organizations and politicians. It is inconceivable that the House, even with its razor-thin Republican majority, would impeach Trump now — though, when I made the proposal, Democrats had a majority and could have done it. (Of course, doing so would have highlighted their incompetence in the first go-round and the persistence of their Trump myopia.) Even when I advanced the idea, the chance of a Senate conviction was negligible: Despite the Democrats’ narrow Senate majority, the Constitution’s supermajority mandate — which makes conviction uphill by design — would be practically impossible to meet in 2022 (as now), given that (a) in the first post-riot impeachment, to avoid confronting Trump’s inexcusable conduct, Senate Republicans clung to the untenable position that the Constitution bars impeachments of former presidents (Trump was out of office by the time of his impeachment trial); and (b) on the same “let’s not confront the conduct” rationale, Senate Republicans would now claim Trump was protected by double jeopardy even though, as mentioned above, he is not. (Double jeopardy is a protection from conviction and sentence in the criminal-justice system, not the stripping of political power by Congress; and even where it applies, double jeopardy bars only a successive judicial trial for precisely the same crime — in a second post-riot impeachment, the articles would not have been “incitement of insurrection.”)
Even so, I believed — and still believe — a renewed impeachment effort was the proper response because impeachment is the Constitution’s answer to egregious abuses of executive power. It remains the only legitimate way to disqualify Trump from being reelected. Moreover, it would put every lawmaker on record prior to Election Day and beyond, which would have value — unlike the 14th Amendment artifice or a counterproductive criminal prosecution that damages the presidency as an institution but doesn’t achieve disqualification.
No one who believed Trump should have been impeached, removed, and disqualified was satisfied by the post-riot impeachment. It was sloppy, blatantly partisan, and ineffective. Contrary to the common wisdom that the riot ended Trump’s political ambitions, he maintained his grip on the Republican Party. Hence, it was clear that he would seek the presidency again, that efforts would be made to ensure that he could not succeed, and that these efforts would go beyond defeating him in the 2024 election. Predictably, these efforts — led by people who claim to be defending the Constitution — stray from the Constitution’s framework. Prosecution in the federal criminal-justice system was not in the Framers’ contemplation as a way to address presidential abuses of power. (I’ll address that in a separate column.)
By resorting to such a prosecution, the Biden administration and its Justice Department have profoundly undermined the presidency: Going forward, new administrations of the opposition party will assign prosecutors to scour executive actions taken by the prior president — and the prospect of those investigations will inhibit future presidents, regardless of whether indictments follow. (I am assuming the courts will green-light this latest bit of norm-smashing that anti-Trumpers claim is necessary to overcome Trump’s norm-smashing.) Perhaps realizing that the barrage of partisan prosecutions has elevated Trump without any potential to disqualify him, Democrats have now stepped up the aforementioned, half-baked 14th Amendment, Section 3, scheme to knock Trump off state ballots.
If the stakes weren’t so high, it’d be hilarious. Rather than just working on what should be an electoral romp of Trump, or — even better — nominating someone other than the senescent Biden who’d have a chance to beat Republicans not named Trump, Democrats gamed the system. The result: They’ve got Trump on the cusp of clinching the GOP nomination, they’ve set precedents that will deeply harm republican democracy, and now, they’re in 2016-style panic mode that their machinations just might get Trump elected. (I still don’t think Trump can win, but I understand why Democrats, having underestimated the Biden-Harris ticket’s ineptitude and unpopularity, are worried that they’ve overplayed their hand.)
Naturally, I am dismayed that people who are more than willing to adopt counter-constitutional — or, at least, Constitution-stressing — stratagems for opposing Trump have been unwilling to revisit impeachment. The fact that it is an improbable solution does not change the fact that impeachment is the Constitution’s prescribed solution — and if the test of a remedy were its likelihood of success rather than its constitutional propriety, why are we even talking about the 14th Amendment?
Personally, I believe the real resistance to a renewed impeachment process has been exactly what it was in the failed January-February 2021 process: fear of political accountability on the Republican side. Some of this is understandable: I’ve deeply studied impeachment, and I’m thus confident that Trump committed unforgivable high crimes and misdemeanors that should have resulted in impeachment, removal, and disqualification; yet, I believe in due process and thus had a very hard time supporting Trump’s impeachment on the article offered by House Democrats, which was legally dubious, plagued by serious factual error (implicitly but falsely accusing Trump of murdering a police officer), and a creature of partisan politics. (By the time they finally got around to impeaching, the House knew it was too late to get Trump convicted, removed, and disqualified, so they opportunistically used the occasion to build on their already existing narrative, which brands Trump supporters as white-supremacist domestic terrorists.) I ultimately argued that Trump should be impeached, even on the flawed article, because he deserved it. But Democrats didn’t make it easy.
On the other hand, I am not an elected Republican with a constituency reflective of today’s GOP base — the same folks determined to get Trump nominated now, heedless of the high likelihood that, come November, Democrats will thrash him and the GOP’s down-ballot candidates. Members of Congress are the ones who matter in impeachment, and the Republicans among them eschew the process because it forces a choice that requires courage: Do I excuse Trump’s indefensible conduct that would have me screaming “impeach him” if it were a Democrat, or court the wrath of his supporters that could cost me my seat? Republicans went to impressive lengths to avoid that choice last time around, and now — with Trump stronger and with additional specious rationales available for voting in Trump’s favor while turning a blind eye to his behavior — they’d surely rinse and repeat.
The pushback I’ve most often heard to the proposal of a renewed impeachment effort is that impeachment is unworkable — impossibly burdensome. Sadly, I think this translates to: “There is a lack of political will at this point to conduct an impeachment process that would lead to my preferred outcome — Trump’s conviction and disqualification from office.” Impeachment, of course, is supposed to be hard. Only the worst behavior is supposed to trigger the disqualification finding that removes a president’s fate from the voters’ judgment — though our modern, moronic politics has done its best to trivialize impeachment into a partisan censure that, naturally, the target wears as a badge of honor. All that said, though, meritorious impeachment is not impossible. The fault for its failure three years ago lies with Congress, not with the Constitution’s daunting process.
The comportment of Democrats and others disgusted by the Capitol riot was inconsistent with their present bellowing that Trump is a historically unique destructive force who cannot be allowed to retake power. If Trump were that, then it was the duty of Congress to impeach him tout de suite.
There was no reason this couldn’t be done: The riot damage on January 6 was minimal. Congress was able to reconvene just a few hours afterward to count the electoral votes and ratify President Biden’s victory. Nothing would have prevented the House from impeaching Trump the following day.
The suggestion that impeachment always requires an extensive investigation is nonsense. Impeachment is political, not legal, so how much due process a president gets is entirely up to Congress. And even when due process applies, it is always the process that is due under the circumstances. In a crisis situation, the priority is national security, not solicitude toward the accused. If a historically unique destructive force inhabits the Oval Office, the Constitution — which, as Justice Robert Jackson sagely observed, is not a suicide pact — allows immediate expulsion. A laborious investigation was unnecessary (as should be apparent from the fact that Democrats didn’t do one anyway).
Putting aside for a moment the violence of the riot, Trump, in his Ellipse speech, explicitly encouraged a raucous crowd to protest at the Capitol in order to put political pressure on Congress and the vice president. For the chief executive to do that to the Article I branch on its turf, as it carried out its constitutional duties, was patently impeachable. Add to the mix that violence was easily foreseeable and that when it broke out, Trump was not merely content with it; he willfully exacerbated the threat to Vice President Pence — tweeting that Pence had, in effect, betrayed Trump supporters by refusing to discount electoral votes. Then, for hours, Trump declined to use his considerable influence to end his supporters’ rioting. That is a slam-dunk case for impeachment, conviction, and disqualification — even though security missteps made the Capitol more vulnerable than it should have been.
This was an emergency. No deliberate, methodical investigation was necessary to conclude that the elected president was unfit and needed to be stripped of power. The Democrat-controlled House could have easily adopted a couple of impeachment articles by January 7. Senate Republicans were still in town then. There would have been enormous pressure on then-Majority Leader Mitch McConnell to convene a prompt impeachment trial. Remember: Over a month later, after the belated impeachment led to a belated trial, seven Republicans voted to convict Trump — even though, by then, Republicans had political cover to oppose conviction on the specious rationalization that the Constitution does not permit impeachment of former office holders. It is not implausible that, had there been a prompt trial on, say, January 8 or 9, while the public was still reeling in revulsion over the riot, McConnell could have rounded up the ten additional Republican votes (including his own) needed for conviction. An appropriate sense of urgency while Trump and his supporters were on their heels could have made a difference.
Instead, House Democrats inexplicably took a recess for five days after the riot. They knew this was irresponsible — that’s why the constitutional non-starter of removing Trump under the 25th Amendment was floated. The House did not reconvene and impeach Trump until January 13 — illustrating that they could have done it instantly after the riot.
By then, the Senate, too, was in recess until the announced date of January 19 (the day before Biden’s inauguration). That is, senators had mostly gone home, and reconvening for anything substantive would have required unanimous consent. That might not have been much of a hurdle, except that, with a week having gone by since the riot, Washington had calmed down. Vice President Pence appeared to have de facto taken the reins. It was apparent that the riot, which had lasted a bit more than three hours, had posed no real threat to Biden’s election and the transfer of power; indeed, the military, far from aiding a Trump coup, helped bipartisan congressional leadership get the Capitol cleared so Congress could reconvene and ratify Biden’s victory. Trump had publicly agreed to transition to a Biden administration and made clear that he would decamp to Florida.
Republicans thus settled on the position that the crisis was over. There was no point in reconvening for the trauma of an impeachment trial when Trump’s term would be over in less than a week. And at that point, with Trump supporters regaining their footing and reasserting their Svengali spell on the GOP, it was easy for most Republican senators — without excusing Trump’s inexcusable conduct — to claim that the Constitution barred impeachment of a former president (it doesn’t). It was also easy for the cagey McConnell to have it both ways: First vote to acquit, then offer a scathing speech condemning Trump’s impeachable conduct — and then absurdly excuse the Senate’s dereliction of constitutional duty by claiming that Trump “didn’t get away with anything” because he could still be prosecuted and sued civilly.
Impeachment failed because we did not, and do not, have a political class worthy of the moment. Impeachment failed because Congress failed, not because the Constitution makes impeachment too hard.
That is not Jack Smith’s fault. I’m a naysayer on his case because, in the Biden Justice Department’s quest to nail the president’s nemesis, the prosecutor is stretching the law and due process to the breaking point — beyond the breaking point, in my view. Many good-faith supporters of Smith’s election-interference indictment, and of the Justice Department’s unseemly rush to get Trump tried and convicted in accordance with the election calendar rather than the requirements for a fair trial, acknowledge the stresses on the system. But they weirdly insist that, while undesirable, the fault for this situation lies with Trump; he is the one who created the stresses, so it’s only right that he be forced to live with the fallout. If a few close calls go against him, well, he has it coming.
This could not be more wrong, and if the criminal defendant in question here were anyone other than Donald Trump, it would be unnecessary to explain why.
The “Trump’s fault” argument would work if one were arguing that it had been imperative — had this happened — to impeach and remove Trump in a whirlwind two-day process, shorn of the usual painstaking investigation and due process. Impeachment is a discretionary political process, and it was Trump’s willful misconduct and timing that stressed a system that is not required to grant a president anything other than the constitutional minima: Impeachment by the House under whatever rules it adopts, conviction in the Senate only on a guilty verdict by a two-thirds’ supermajority — but otherwise, similarly, on whatever rules the body adopts. If Trump got a more truncated process than whatever is “normal” for impeachment, then damn right: It would have been his own fault.
That, however, is not how the criminal-justice system works.
It could be said of almost every defendant charged that his plight is his own fault in that his bad behavior triggered the process. But we don’t say that at all. We say the opposite: The accused is presumed innocent. No matter how overwhelming the evidence seems to be, the defendant has a right to investigate the charges, thoroughly inspect the proof, prepare for trial, and mount a defense. The government’s charges must be a fit match for the alleged conduct — if they’re not, the case gets thrown out even if the defendant’s conduct was heinous. The prosecution bears the burden of proving guilt; the defendant need not testify, need prove nothing, and must be acquitted if there is reasonable doubt.
Every defendant gets those rights. If he’s a terrorist who has mass-murdered Americans, he gets them. If he’s a contract murderer, a serial rapist, or an incorrigible thief, he gets them. It is not tenable to contend that Trump shouldn’t get them in the legal system because he stressed the political system — because if he can’t be brought to heel by prosecutors, then he can’t be held accountable. There is no accused criminal for whom we rationalize undermining the protections of the justice system on the grounds that he is uniquely awful — not if we still prize a system where we’d rather see the guilty go free than the innocent wrongly convicted.
Of course, our straits are now worse than that. If you cut corners to convict, say, an Osama bin Laden or a John Gotti, that is bad for the justice system, but it will probably take some time for the attrition of due process to be felt by everyday defendants who are not jihadist emirs or mafia dons. If you cut corners to convict presidents, by contrast, the very functioning of government is at stake. If a former president’s political foes use their temporary hold on power to indict him on dubious charges and rush him to multiple trials, in a mockery of due process driven the political campaign calendar, those become the rules of the game for every future president. That is why it is a dreadful mistake to charge a former president in the absence of a serious, inarguable crime supported by overwhelming evidence. It is not that the president is above the law; it is that the centrality of the executive branch to the functioning of our constitutional government creates priorities that are at least as vital as holding presidents criminally liable. The media-Democrat complex shrieks as Trump promises his perfervid base that he will be their “retribution,” exploiting police powers to turn the tables on his tormentors. Victor Frankenstein shrieked, too, upon beholding his creation.
I don’t fault Smith for investigating Trump. The Justice Department, like Congress, had an obligation to investigate the Capitol riot and its causes. It was the DOJ’s duty to prosecute anyone who committed clear, serious crimes. As just explained, I am not opposed in principle to criminal prosecutions of former presidents. The Constitution explicitly permits them. I’ve supported Smith’s prosecution of Trump in the Mar-a-Lago documents case, at least on the laws pertaining to national-security documents and obstruction. (I believe Trump has a selective prosecution argument that a south Florida jury may find quite persuasive.) Prosecutors are fit to respond to misconduct that does not involve actions of the president in exercising executive power.
To the contrary, when it comes to abuses of the president’s capacious executive authority, the Constitution’s solution is impeachment, not criminal prosecution. To the extent that Smith’s election-interference case is a “do-over” of impeachment, the problem is not the prospect of a do-over. It is a do-over by the wrong constitutional actor. Trump’s actions between Election Day 2020 and the Capitol riot — like President Clinton’s actions in issuing corrupt pardons on the eve of departing office — were within his executive authority. That didn’t make them right — far from it. But it did make them actions that should be beyond second-guessing by subordinate executive officers (prosecutors) based on their post facto assessment of what the president must have been thinking when he acted.
Such abuses of power are for Congress to address. Trump deserved to be impeached, removed, and disqualified. He still does. The fact that Congress lacks the will to do its job today, just as it lacked the will to do its job three years ago, means we have a dysfunctional Congress, not a broken constitutional system.