Necessary and Insufficient: The Problems Impeachment Does Not Solve

By Benjamin Wittes
Wednesday, January 13, 2021, 4:56 PM

And so they impeached him. What else could they do?

They could not ignore his behavior over the months since his election defeat—the pattern of behavior that culminated in the president’s move last week to assemble a mob in Washington and loose it on the Capitol.

If ever a sequence of presidential actions positively required congressional response, a failure of which would render laughable the whole notion of an executive branch bound by any degree of legislative constraint, the president’s launching of a literal assault on the legislative branch while it was counting the electoral votes that would unseat him surely tops the list.

Nor could they not invoke Section 4 of the 25th Amendment, which would transfer President Trump’s powers to Vice President Pence, because Pence himself would need to initiate such a move. And the vice president has made clear that, notwithstanding Trump’s tolerance of the idea of Pence being lynched or shot in the uprising, the vice president remains loyal to his liege lord—or, at least, too loyal to take the lead in dethroning him.

They could, at least in theory, invoke Section 3 of the 14th Amendment, which holds that “[n]o person shall ... hold any office, civil or military, under the United States ... who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” And they may still do so. But that would open various cans of legal worms that have been safely on the constitutional shelf for more than a century. Were the events of Jan. 6 technically an “insurrection or rebellion” within the meaning of this language? And did Trump meaningfully “engage” in those activities, or did he merely encourage them?

And they can’t charge him with a crime, at least not while he remains in office—and likely not, without more information emerging, at all in the short term.

So they impeached him.

Impeachment is a good way for the House of Representatives as an institution to draw a bright, flashing moral and legal line around what the president has done and insist that some behavior is unacceptable and will trigger Congress’s wrath—even if the president is walking out the door and even if the removal power is therefore a redundancy. It’s a good way for the Democrats in the House to force Republicans either to break with the president or to defend somehow his role in a violent uprising that both threatened the lives of members of Congress and took the lives of others. And it’s a good way for those Republicans who have been looking for an off-ramp finally to take one.

And so we have Liz Cheney (“There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”) sounding a lot like Nancy Pelosi (“In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent threat to both.”). We have outgoing Senate Majority Leader Mitch McConnell reportedly pleased that Democrats are moving to impeach the president, believing it will make it easier for the Republican Party to purge Trump from its ranks. And we have a large group of bitter-end Republicans still lashed to the mast of the Trump ship as it sinks.

Fully 197 Republican House members voted against the president’s impeachment, but the 10 Republicans voting for impeachment included such prominent figures as Cheney, the chamber’s third-ranking Republican, as well as Adam Kinzinger (Ill.) and Fred Upton (Mich.). The resulting vote, from which four Republicans abstained, was a weakly bipartisan one, but it was more bipartisan than either the Clinton impeachment or the earlier Trump impeachment.

And yet impeachment too is an awkward fit for this particular presidential offense. There is at least some question, for starters, whether the impeachment will lapse with Trump’s presidency, though the Senate will get to decide whether or not to hold a trial. More importantly, it’s not at all clear that the votes in the Senate exist to convict Trump, particularly given the relative Republican unity in the House, and a second Senate acquittal would certainly muddy the message the House sent today. If 66, but not 67, senators were to vote to convict the (former) president of the high crime and misdemeanor of inciting to insurrection, would that imply that the Senate as a body does not believe that Trump engaged in incitement? Would it mean that the Senate does not accept that the events of Jan. 6 constituted an insurrection? Would it mean that Trump has been, in some sense, “cleared”—as he claimed to be when the Senate acquitted him in his first impeachment trial? Or some combination of these?

Impeachment is an awkward remedy in a more practical sense too: It does nothing to disable Trump in the last seven days of his presidency. This is admittedly a short-term problem, one on which the clock is ticking and which every minute of non-disaster ameliorates a little bit. It’s a problem that might take care of itself with time—if we’re lucky.

But we may not be lucky. Even without his Twitter feed, Trump could decide to stoke violence in the days leading up to Joe Biden’s inauguration, though he today said in a statement that “I urge that there must be NO violence, NO lawbreaking and NO vandalism of any kind. That is not what I stand for, and it is not what America stands for.” And any number of things can happen in the next seven days that fall short of an all-out disaster but that are nonetheless highly undesirable. Expect another spree of reckless, self-interested pardons, at a minimum. And expect this next spree to include family members, his lawyer and maybe even himself.

The truth is that Congress acting alone has no good remedy for the short-term problem of a rampaging president when the vice president is too meek to assert himself. So impeachment can send a message that, depending on the Senate’s handling of the trial, may or may not resound through the generations. And impeachment can serve to disqualify Trump from office—or, as John Mulaney might put it, to keep the horse out of the hospital in the future.

But to the extent the horse is bent on destroying the hospital in his remaining few days inside it, impeachment will not prevent that. It will, at most, act as a modest deterrent—if the horse is capable of being deterred at all

So let’s acknowledge a few things at the outset that Congress cannot stop. To the extent Trump wants to use his last few days to pardon war criminals, family members, campaign advisers, cult leaders, embezzlers, fraudsters and even himself, there is no way to stop this. To the extent he wants to fire another FBI director or push to have a special counsel investigate Hunter Biden, there’s only a little more to be done to stop him on these points either. Most upsettingly, to the extent Trump wants to pardon en masse those who stormed the Capitol last week, there’s nothing to be done here either. This is the price of using impeachment, rather than the 25th Amendment, as the sole means of disabling him. And it should give rise to a serious long-term discussion of whether the 25th Amendment’s temporary disability provision offers an adequate remedy for situations like the one Trump has presented. Trump’s last days in office, however, will no more wait for that discussion than they will for impeachment.

During these next few days, the single most important thing that might restrain Trump is, not coincidentally, the same thing that might restrain his most violent supporters: aggressive law enforcement action against the rioters from last week. It is much easier to pardon a group of self-described “patriots” charged with unlawful entry to the Capitol than it is to pardon a group that includes people accused of murder, beating officers, looting and destruction of government property—much less of planting bombs in Democratic and Republican offices. The more people get arrested and charged with more serious offenses over the next few days, the greater will be the deterrent to additional violence as Biden takes office. And the greater as well will be the deterrent to Trump in encouraging such additional violence—or in extending grace to those who engaged in the disgrace of last week.

The medium term, the period immediately after Biden takes office, will have challenges of its own. The wave of prosecutions and arrests will no doubt continue, particularly so if next week sees additional mayhem. An impeachment trial will have to take place, occupying a fair bit of Senate time. All of this will happen in the first days of a new administration that will be struggling to get the coronavirus crisis under control and to get its own land legs as an executive body trying to impose a minimal degree of order on the chaos the Trump administration has left. And hanging over it all will be the question of the criminal prosecution of Trump—under federal law and under New York state law, for crimes days old and years old.

The issue of Trump’s possible prosecution was never one the Biden administration was going to successfully evade. It always required a decision—a series of decisions, actually. But those decisions are more acute now. The issue is no longer merely whether the Justice Department should respect Attorney General William Barr’s decision to close the obstruction of justice questions involving Trump that Special Counsel Robert Mueller had intentionally sought to leave open. It is no longer merely whether the question of the hush money payments to Stormy Daniels should be revived. And it is no longer just New York state’s tax fraud investigation.

With several people dead and the Capitol invaded, and the president having both called the rioters to town and told them to march on the Capitol, there is no way that Trump’s role in the events of last week will escape investigation. It will not do for Biden to say—as Barack Obama once said of the possibility of investigating the Bush administration—that he wants to look forward, not backward. Did Trump merely give an incendiary speech and then sit back and watch with pleasure as the mob attacked Congress? What was his role while these latter events were taking place? Did he have contact with anyone actively involved in the mayhem during the attacks? Did anyone do so on his behalf or with his blessing? Law enforcement needs to seek answers to these questions, and for public accountability purposes, Congress does too. These investigations need to happen—and they will.

And in the longer term, there’s the question of reform. Does the country want to leave in place this strange lacuna in the law of presidential disability and removal? The lacuna arises because Congress can remove a president using impeachment but, in the meantime, has to leave the mad king in possession of all of his powers; and Congress can sustain an internal uprising of the mad king’s Cabinet if he is disabled and temporarily replace him, but it cannot act by itself quickly just because he is—as the speaker of the House called Trump—“a deranged, unhinged, dangerous president.”

Should there be some mechanism for the emergency setting in which the vice president will not step up and lead and the president is mad but not disabled? Should there be some mechanism in which Congress has some remedy for the rampaging horse in the hospital that doesn’t depend on the horse’s having committed a high crime or suffered from some disability but flows from the nature of his being a horse in a location so very different from a stable or a pasture?

These are the questions impeachment cannot answer, the problems it cannot solve. Once the immediate crisis is passed, they are questions Americans should not forget.