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Yes, Congress Should Impeach Trump Before he Leaves Office
January 8, 2021
In their latest piece for the Washington Post, Kaplan Hecker & Fink LLP partner Joshua Matz and Harvard Law School professor Laurence Tribe explained that "the House would be fully justified in finding that Trump’s incitement of mob violence against the United States government warrants [the] drastic remedy" of impeachment. Read this article at the Washington Post.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard and has advised members of Congress on matters of impeachment. Joshua Matz is a partner at Kaplan Hecker & Fink LLP and served as counsel for the House Judiciary Committee during the impeachment and trial of President Trump last year. Together, they wrote “To End A Presidency: The Power of Impeachment.”
As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final days in office, two questions loom large: Did Trump commit impeachable offenses? And does it make sense to impeach even though the Senate may not try and convict him before he leaves office on Jan. 20? The answer to both questions is yes.
Trump spent months convincing his followers, without factual basis, that they were victims of a massive electoral fraud. He summoned them to D.C. for a “wild” protest as Congress met to certify the election results. He then whipped them into a frenzy and aimed the angry horde straight at the Capitol. When Trump’s mob breached the building, he inexcusably dawdled in deploying force to quell the riot. And when he finally released a video statement, it only made matters worse.
Simply put, Trump knew perfectly well that his rally on Wednesday was a powder keg of his own creation. But he gleefully lit a match and tossed it at Congress.
The article of impeachment circulated Friday by Democratic Reps. David N. Cicilline (R.I.), Jamie B. Raskin (Md.) and Ted Lieu (Calif.) accurately captures the gravity of Trump’s misconduct. It situates his action within his “prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” And it recognizes the terrible damage that Trump, through his incitement, inflicted on the nation as a whole.
Trump’s actions might well qualify as federal crimes. But that determination is beside the point when it comes to measuring impeachable offenses. Impeachment exists to protect us from future threats rather than to punish prior misconduct. It does not require proof of a crime.
Indeed, as the House concluded in December 2019, conduct that may be in some sense permitted by the Constitution (or the criminal code) can still be impeachable if undertaken in a grossly abusive manner or as part of a scheme that imperils democracy. Those who wrote the impeachment clause grasped the threat posed by leaders who deploy mob violence against officials and institutions of government that stand in their way. Faced with Trump’s conduct — inciting the most destructive assault on our seat of government since the War of 1812 — they would not have hesitated to act.
That’s true even though Trump will leave office in just 12 days. The Constitution entrusts the House with “the sole Power of Impeachment,” and the Senate with “the sole Power to try all Impeachments.” For good reason, the House and Senate have traditionally exercised those powers with considerable due diligence, deliberation and process.
But the Constitution does not require slow motion at times of crisis, especially when the nation witnessed an impeachable offense in real time. Here, holding protracted hearings would be a foolish undertaking, akin to playing a sonata on the decks of the Titanic. The House can and should act with dispatch.
Many considerations support that conclusion. As a matter of principle and precedent, the House must leave no doubt that Trump’s conduct is beyond the pale. He came close to destroying the Capitol in pursuit of his antidemocratic effort to overturn an election; an unequivocal response is called for.
Moreover, there is now widespread, bipartisan recognition that Trump will remain a danger to our national security through his final days in office. His obvious lack of remorse and unwillingness to accept responsibility confirm the threat. So do his pattern of placing his personal interests above the law, and his failure to modify his conduct after being impeached last year. With every passing hour that he has the instruments of executive power at his command, the risk that he could do incalculable damage cannot responsibly be ignored.
By approving articles of impeachment, the House would give the Senate the option to swiftly convene, try, convict and remove the president — and, upon a separate vote, disqualify him from future officeholding. To be sure, the Senate may lack the willingness or the time to hold a trial. Still, 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. And it appears as though there is now bipartisan support in the Senate for serious consideration of articles of impeachment.
In any event, if the House approves articles of impeachment but the Senate does not act before he leaves office, those articles will mark the historical record, serve as a valuable deterrent in the interim and draw a line against future abuses. (Scholars debate whether an impeachment may proceed against a former official.)
The impeachment power must never be exercised lightly. But the House would be fully justified in finding that Trump’s incitement of mob violence against the United States government warrants that drastic remedy.
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