Blog No 277. The Rush to Impeach and a Possible Alternative

In last Friday’s blog, I expressed reservations about the rush to impeach Donald Trump. Thinking about it more since then, my reservations have grown stronger and they forced me to look for an alternative. I came up with a concept that makes sense to me and I will share here. Before doing so, I must reiterate that, as indicated in the previous blog, there are ample grounds for impeachment. The only question is whether, under current circumstances, it is the best remedy available. I believe it is not.

The serious problems with impeachment relate to timing, priority and effectiveness. On Monday, an article of impeachment was introduced in the House of Representatives along with a resolution calling on Vice President Pence to initiate a removal of the president pursuant to the 25^th Amendment. The latter resolution is expected to pass on Tuesday and if, as most anticipate, Pence does not act, the article of impeachment could be voted on, and most likely approved, by Wednesday. But what then? The Senate is not in session and will not return until January 19. Democrats may complain bitterly that Majority Leader Mitch McConnell should call them back earlier, but their complaints will be to little avail. And if McConnell did call the Senate back, there would be no time for anything resembling a fair trial before the 20^th.

An initial impetus for impeachment came from the idea that it was necessary to remove Trump quickly before he could take further destructive steps. Even on Sunday, House Speaker wrote to colleagues of the urgency for action:

In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent threat to both. As the days go by, the horror of the ongoing assault on our democracy perpetrated by this President is intensified and so is the immediate need for action.

However desirable the goal of Trump’s immediate removal, it is clear that his term in office will not be foreshortened. It may be argued as Professor Laurence Tribe has, that “the very pendency of articles — and the possibility of trial and conviction — may itself chill Trump’s worst impulses as he contemplates his final days as president.” Well, they could, but one might equally speculate that impeachment will provoke an enraged Trump into still more unhinged and destructive conduct.

A Senate impeachment trial after January 20^th is almost certain to be a massive distraction to the incoming Biden administration and its attempts to gain bipartisan support for essential legislation addressing a wide range of pressing needs. Mindful of that concern, Rep. James Clyburn suggested that the House could defer for a period of time the sending of the impeachment article to the Senate: “Let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we will send the articles some time after that.”

There are several problems with Clyburn’s approach. First, the need for addressing urgent problems, in a focused and bipartisan way, will not disappear after the magical 100 days. Indeed, if anything, that need could well become more acute. Second, as the Washington Post has documented, and as Professor Tribe acknowledged, there is serious and legitimate debate among scholars as to whether impeachment of a former president is lawful. Third, while support among Senate Republicans is uncertain at the moment, it may well diminish over time as the vivid images of the horrific event fade and other issues intrude. Finally, Trump supporters, on and off the Hill, who saw Trump’s first impeachment in purely political terms are apt to view a second impeachment in the same way.

What then is the alternative? I suggest in lieu of impeachment a Joint Resolution that would do several things.

First, it would strongly condemn the president’s actions on January 6. This would satisfy the felt and legitimate need for an immediate expression of political revulsion. While some Republicans will no doubt oppose such a condemnation, it is likely to gain more Republican support than impeachment, particularly if it is presented as an alternative to impeachment.

Second, it would require the Attorney General to appoint a Special Counsel to investigate Trump and the others alleged to have been involved in the riot and to: a) prosecute where warranted and b) report his or her findings to Congress.

A successful prosecution could satisfy one of the stated goals of those seeking impeachment, i.e., to bar Trump from holding federal office in the future. One statute under which Trump might be prosecuted is18 U.S. Code § 2383 – Rebellion or insurrection. It provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The language of Section 2383 parallels that of Section 3 of the 14^th Amendment banning from federal office anyone who has engaged in rebellion or insurrection. The Nation reported that House Democrats on Friday were considering a strategy under the 14^th Amendment to bar Trump from holding office. According to the Nation article, such a strategy has been espoused by a distinguished historian, Eric Foner:

[T]he House could, with a simple majority vote, censure Trump for inciting insurrection and effectively bar him from running again for the presidency. “This can be invoked against anyone who has ever taken an oath to support the Constitution, including the president,” [Foner] explains. “It’s much simpler than impeachment. It is not a judicial proceeding. It’s a political proceeding. It doesn’t involve lawyers or trials. It is simply about qualification for office. You could have one afternoon of debate and a vote.” A Senate vote would require a simple majority, as opposed to the two-thirds supermajority required for impeachment.

Needless to say, however, Foner’s theory has never been tested. My own view is that legally and politically, Trump must be given an opportunity in a trial, or quasi-trial proceeding, to defend himself against the charges of insurrection or rebellion. Even the most heinous among us are entitled to due process. Investigation and possible prosecution by a Special Counsel would provide that process as well as illuminating for the public more of the facts leading up to the Capitol violence.

As my previous blog acknowledged, our experience with Special Counsels has not been entirely happy, and choosing a suitable counsel here will not be easy. Nevertheless, I think it would be well within the capacity of Merrick Garland to select and supervise such an individual.

Finally, the Joint Resolution would provide that, upon a conviction or guilty plea, Trump would forfeit the considerable financial benefits provided to former presidents, such as his pension and his travel and office expenses. That sanction would speak to Trump in a language in which he is clearly fluent.

I do not know if there is any chance of the strategy I have outlined coming to the attention of our leaders, but I believe it is worthy of their consideration.