Jonathan Hafetz, Professor of Law at Seton Hall University School of Law, discusses the impeachment process of Donald Trump in the wake of the violence at the U.S. Capitol...
Because of his attempt to overturn the 2020 election and foment attacks on the Capitol, President Trump must be impeached. The key is to design an impeachment proceeding that not only results in Trump’s conviction by the Senate and future disqualification from federal office, but that is completed as swiftly as possible so that the Biden administration can get on with the business of governance in America.
On Monday, January 11th, 2021, House Democrats introduced an article of impeachment against President Trump. But while the House will surely approve impeachment charges, conviction requires a two-thirds majority in the Senate.
The last attempt to impeach Trump garnered only a single Republican vote for conviction in the Senate (from Mitt Romney), but the fallout from last week’s assault on the seat of American democracy suggests how radically the political landscape has shifted. To convict Trump, Democrats should prioritize two related goals: first, working closely with Republicans to obtain the necessary bipartisan support; and second, designing a rapid impeachment trial in the Senate that denies Trump and his cabal of supporters any opportunity to hijack the proceedings with lies and falsehoods and minimizes the window for the political backlash against Republicans who support impeachment from Trump’s base. Fortunately, the Constitution’s Impeachment Clause and Senate impeachment rules make this possible.
For starters, impeachment is not a criminal proceeding but a constitutional one, and the Senate has broad discretion over the rules. The current impeachment rules provide the basic framework, addressing such matters as the commencing of proceedings, the filing of motions, and attendance of any witnesses. Nothing in these rules prevents a swift outcome and the Senate, which will be under Democratic control after January 20th, 2021, can choose to waive or modify a particular rule, if necessary.
The current article of impeachment focuses on Trump’s effort to subvert the election and his role in the attack on the Capitol, although it would be better if the charges that are ultimately approved focus less on Trump’s role in inciting the insurrection. This suggests that a particular criminal offense must be proven (which is not the case for impeachment) and that Trump’s intent might be relevant. The impeachment charge should focus more sharply on Trump’s systematic attempt to undermine a free and fair election. As Frank Bowman argues, “the importance of [Trump’s] January 6 speech for impeachment purposes is not whether Trump specifically intended to advocate a physical invasion of the Capitol, but whether Trump’s speech was part of an ongoing effort to induce Congress to overturn the results of a legal election.”
A sharply focused impeachment charge would work hand-in-glove with an expedited impeachment trial. The evidence should be limited to Trump’s statements since the November 3rd, 2020 election (including at rallies and on social media), with a few key additions, such as the transcript of Trump’s January 2nd, 2021 telephone call with Georgia Secretary of State Brad Raffensperger in which Trump tried to coerce him to “find” enough votes to reverse outcome in that state. Trump and his attorneys could be given 24 hours to respond in writing once Senate proceedings commence — essentially the type of expedited timeline Trump has demanded from courts in his 60-plus lawsuits seeking to overturn the election in multiple states. No live witnesses need to be called since there would be no factual dispute over what Trump said. Any hearing on the legal implications of Trump’s statements could be confined to arguments by counsel in a single day — far more than the one hour typically allotted to decide the weightiest issues before the U.S. Supreme Court. While a fuller airing of Trump’s abuses might be desirable, an expedited impeachment is better than any of the alternatives.
Vice President Mike Pence has resisted invoking the 25th Amendment, which provides for removing a president who is unable to discharge his duties. But even if this were politically viable, the 25th Amendment would serve to prevent Trump from doing anything to further undermine American democracy and endanger Americans in the few remaining days before his term expires. It would not hold Trump accountable for his misconduct nor would it carry the possible sanction of barring Trump from holding office again, as impeachment would.
Introducing articles of impeachment but allowing proceedings to continue over weeks, let alone months, is unnecessary and problematic.
A protracted trial is unnecessary because Trump’s statements are not in dispute and alone provide a sufficient factual predicate for impeachment. Questions regarding the legal significance of those statements can be addressed in written submissions.
A protracted trial is problematic because it would give Trump a platform to spew more lies about the election and bog the country down with his dangerous antics for the foreseeable future. President-elect Biden should have the opportunity to govern without the distraction of a drawn-out impeachment trial, especially with a deadly pandemic continuing to rage across the country and leaving economic devastation in its wake. Further, since Trump will already be gone from the White House by the time any Senate trial commences—meaning that his conviction would result only in disqualification from future office and not the removal of a sitting president—an expedited proceeding should be an easier sell politically.
A joint congressional resolution censuring Trump would send an important message and would require only a majority vote in each house. It would likewise force Republicans to make their position on Trump’s post-election conduct public. But, unlike impeachment, it would have no tangible consequence. If pursued, a joint resolution should be done in tandem with impeachment.
Finally, prosecuting Trump for inciting sedition would have to overcome the high bar imposed by the First Amendment and the rigorous standards of proof in a criminal trial. A criminal investigation may provide additional evidence to support such a charge, including evidence indicating Trump conspired to weaken security at the Capitol. Such an investigation should proceed apace as should state and federal criminal investigations into election tampering in Georgia. But whether or not Trump’s conduct rose to the level of a criminal offense—which will take time to resolve— it was on its face an egregious abuse of power and a subversion of democracy that warrants impeachment.
Allowing Trump to simply run out the clock is unacceptable. Lawmakers must do all within their power to ensure Trump is not merely impeached by the House but tried and convicted in the Senate. Even if the trial is delayed to give Biden a Trump-free first 100 days—which he and America deserve—Trump must be tried and tried quickly. The integrity and security of American democracy depend on it.
Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.
Suggested Citation: Jonathan Hafetz, How to Impeach Trump?, JURIST – Academic Commentary, January 12, 2021, https://www.jurist.org/commentary/2021/01/jonathan-hafetz-impeachment-trump/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com.
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