Bruce Miller, a Professor of Law, emeritus Western New England University School of Law, in Springfield, Massachusetts, discusses the merits of an impeachment trial for President Trump, even if it occurs after he leaves office...
President Trump’s incitement of the frightening assault on our Capitol, our Congress and our Constitution on January 6 should force us to confront some uncomfortable truths about our aspiration toward a “more perfect union.” First, no minimally aware person can any longer deny that white supremacy is a fundamental organizing principle of American policing. We do not yet know precisely how and why our seat of government received only token defense against an invasion by an armed, almost entirely white, confederate flag waving mob, bent on mayhem. But the violent response of police forces throughout the country to largely peaceful demonstrations against white racism after the murder of George Floyd leave no doubt that an angry march on the Capitol building by people proclaiming that black lives matter would, by contrast, have been met with a show of overwhelming, deadly force.
Second, our credo of American exceptionalism, always a distracting myth, has been revealed to be entirely hollow. We can no longer claim that our presidential elections invariably end in a peaceful, consensual transfer of power. We are no more immune than the rest of the world to the threat of authoritarian ambition. We do not even know yet whether our fellow citizens who reject the current presidential transition have more violence planned for the days between now and January 20. It is possible that our constitutional system of government itself hangs in the balance.
And yet that same constitutional system, however under siege it may be, continues to offer us political tools which, if used wisely, can help us through the present crisis. There are signs that the shock and fear felt by many members of Congress when attacked by Trump’s mob has loosened the death grip the President has held over the Republican party. If so, the second impeachment of President Trump by the House of Representatives may be more than just an expression of justified outrage. The trial of this new impeachment will no doubt take place only after, perhaps, as Congressman James Clyburn has suggested, well after, President Biden’s inauguration and the Democrats’ assumption of control of the Senate. Even though Trump will have left office, that trial will be anything but redundant. If he is convicted, the Constitution allows the Senate to preclude him from holding public office ever again. This sanction would eliminate any possibility of Trump mounting another campaign for the presidency in 2024. To banish Trump permanently from the American political scene would mark a fitting rejoinder to his destructive presidency, one that presumably would be welcome to those Republican senators who have finally come to rue his impact on their party, and the country. If there are at least seventeen of these senators, the second impeachment of the President, unlike the first, actually has a chance of convicting him. If there are not, we will at least know who among the newly chastened Republicans is actually serious about their disavowal of Trump and Trumpism.
An impeachment trial of former President Trump will also afford the country a better forum for coming to terms with his despicable incitement of violent rebellion against our constitutional order than will any criminal prosecution he might face. Trump’s reckless remarks to the mob assembled on the Ellipse before their attack on the Capitol may not violate the highly speech protective standards required by the First Amendment for a successful criminal prosecution. But his urging of insurrection against the Constitution and his incessant lies about his election defeat certainly count as high crimes and misdemeanors, sufficient to warrant his permanent disqualification from public office.
Trump’s Senate trial will likely also provide an effective venue for a thorough public vetting of the abject failure of federal and local law enforcement agencies to protect our Congress and our constitutional electoral process from Trump’s mob. The Senate’s ability to subpoena all pertinent witnesses and documents, this time unfettered by obstructive assertions that a sitting President and his aides are immune from investigation, may well enable us to uncover the extent to which that failure was either deliberate, the predictable fruit of the poisonous tree of white racism, or both.
To remove Donald Trump from American political life will not, of course, end the malignant influence of Trumpism over his remaining allies in Congress. At least two of these allies, Senators Hawley and Cruz, may even welcome Trump’s demise. Yale historian Timothy Snyder has observed that their craven leadership of Trump’s January 6 coup attempt on the election can serve their own 2024 Presidential ambitions only if Trump himself is out of the picture.
But our Constitution can also be deployed to derail Hawley’s and Cruz’ opportunism. The 14th Amendment disqualifies any person from the Senate who, in violation of their oath to support the Constitution, has given aid and comfort to an insurrection against it. And Article I, Sec. 5, allows each House of Congress, upon a concurrence of two thirds, to expel any of its members. Hawley’s and Cruz’ bad faith efforts to overturn the election, especially after the mob desecration of the Capitol, are eminently disqualifying under these standards. And, just as in Trump’s impeachment trial, seventeen Republican senators who are willing to reject their party’s embrace of Trumpism can bring their expulsion within reach.
Ours is a living Constitution. Our history shows that it works only when active citizens insist that it be used to seek justice. The Constitution gives Congress power to disqualify a criminal President from future office through impeachment and to expel members who foment insurrection against constitutional government. Using these tools effectively now will help us preserve the Constitution from being undermined by the January 6 assault against it.
Bruce Miller teaches at Western New England University School of Law in Springfield, MA.
Suggested citation: Bruce Miller, Impeachment and Expulsion: Let’s Save Our Constitution by Using it, JURIST – Academic Commentary, January 15, 2021, https://www.jurist.org/commentary/2021/01/Bruce-Miller-impeachment-expulsion/.
This article was prepared for publication by Brianna Bell, a JURIST Senior Editor. Please direct any questions or comments to her at email@example.com.
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